India Legal 31 December 2016

NDIA EGAL L December 31, 2016 `100

www.indialegallive.com

I STORIES THAT COUNT

The Gathering StormI n s i d e r s fe a r t h e ta b l e s m a y b e t u r n i n g a s M o d i ’s 5 O - d a y d e a d l i n e a p p ro a c h e s

Jaya’s Troubling Legal Legacy

MODI’S EXPERIMENT WITH TRUTH

INDERJIT BADHWAR

economy of the cash which oxygenates itand have no back-up ventilators, its lungscollapse. Rohilkhand—and reports frommost regions of India seem to suggest sim-ilar distress—is gasping for breath.

The rabi crop sowing season, mostlywheat, is behind schedule for want of dieselfor irrigation and fertilizer. Rural liquidity,on which market towns bustle and flourish,is kaput. Potatoes and tomatoes are rottingin mandis even as villagers have no cash topurchase them.

Migrant labor which sent back earningsto their villages from larger towns arereturning home empty-handed and joblessand scrounging on the savings of relativesand older parents. Real estate and landtransactions have collapsed along with con-sumer spending. Weavers and artisans are borrowing food because there’s no pay-day anymore.

Paytm and digital transactions are aspace-age away. Even if one can understandthe idea of a cashless economy as a brilliantidea, the idea of cashless banks and ATMsis mind-blowing. The queues are longer.There are not hours but repeated days ofwaiting in lines which spare neither youngnor old, man or woman, beggar or disabled.

And yet, while the anger escalates andthe restiveness mounts… many of thesewretched of the earth bear their sufferingwith stoicism even as they grit their teethand curse. Increasingly, they are explodinginto anti-Modi sloganeering, but there are those who, even as they berate their

LETTER FROM THE EDITOR

HAVE just returned from a 600-kmreportorial road trip, accompanied bya camera crew from India Legal’s sisterconcern, APN NEWS, after covering apart of UP’s Rohilkhand area which

starts unrolling from Delhi’s suburbanGhaziabad and stretches through Buland-shahr, Narora, Gunnaur, Sahaswan, Bad-aun, Bilsi, Bareilly, Moradabad, Rampur…well, you can see it on the map.

It is a relatively prosperous, mostly far-ming area crisscrossed by bad roads, mar-ket towns, wholesale mandis and bustlingTier-3 cities. They grow everything here.Sugarcane, maize, rice, wheat, potatoes,bajra, urad daal, mustard, leafy greens,cauliflower galore. The small towns tradefeverishly—in commodities, private ruralmicro-credit, potato futures, consumergoods, cloth, machine tools, as well ashuman labor which the area’s thousands ofvillages export to larger towns to work aspetty vegetable vendors or daily wagers.

I have covered famines and droughts inBihar and eastern UP since I was a cubreporter and I know rural distress when Isee it. I do not exaggerate when I reporttoday—as I have done for a documentaryfor APN—that the government’s demoneti-zation has virtually drained the economicbloodline of this region, reducing it to agrim shadow of its former relatively pros-perous self.

To change the metaphor: You don’t needto be an expert or an economist to under-stand that when you empty a cash-based

I

3INDIA LEGAL December 31, 2016

Even if one canunderstand theidea of a cash-less economy asa brilliant idea,the idea of cashless banksand ATMs ismind-blowing....There are nothours butrepeated days ofwaiting in lineswhich spare neither youngnor old....

doing the rounds is the forbearance of thebrave Indian jawan standing for daysguarding our borders as against the churl-ish impatience of those having to stand fora few hours in bank queues.

On the face of it, this is an inane non-sequitur. It is like telling a passenger beingcrushed to death in an overcrowded bus tostop complaining because a brave Indianastronaut is sitting cramped for months inan ISRO spaceship circling the earth.

Actually, here too, the Modium is theMessage. The NAMO appeal is subliminal:Since black money funds terror, the com-mon man at home is also a soldier whomust suffer the same privation at home asthe jawan on the LoC in fighting this com-mon enemy; to complain is, therefore,unpatriotic and anti-national.

Forget the political motives or the mac-ro-economic debate for the moment. Thisis pure political theatre at its best, aimed attesting Modi’s personal strength and hiscapability of imposing his writ and will on the nation. The dialog is sprinkled withbuzzwords like “renunciation,” “faqir” and“sacrifice”, which have a far greater reso-nance with ordinary Indians than themacroeconomic arithmetic of “`15 lakhcrore vs `5 lakh crore” etcetera.

Modi’s is a clarion call for class warfare,not of the physical kind, but of the psycho-

LETTER FROM THE EDITOR

LETHAL BLOW APN coverage of

misery inRohilkhand, UP

4 December 31, 2016

You don’t needto be an expert

or an economistto understandthat when you

empty a cash-based

economy of thecash which

oxygenates itand have

no back-up ventilators, its

lungs collapse.

abject misery, praise Modi for having takena good decision.

Why?This is an area into which most pundits

have feared to tread. But let me hazard ananalysis. Leading international economists,among them Bharat Ratna and NobelLaureate Amartya Sen, Manmohan Singh,Swarajya editor R Jagannathan, PaulKrugman, Prem Shankar Jha and the RSS’sown Swadeshi ideologue, the venerableGovindacharya, have condemned Modi’smove as a disastrous example of self-defeating economic adventurism. So haveburgeoning posts on social media.

Government spin doctors, in a bait-and-switch con game, havechanged the goalpost from demon-

etization to digitalization. All may be miss-ing the point. Modi’s opponents cannotfight or defeat him politically, nor his pro-pagandists defend him economically,because his stake is not party politics oreconomic policies but his own personalreligion. It is his own cunning experimentwith his own version of the truth, no matterhow perverse you may find it.

There’s another home truth about theart of propaganda: The more far-fetchedthe lie, the greater its credibility. The sameholds true for analogies. The current one

tish, millions of Indians voluntarily burnedtheir British-made garments in public bon-fires: As Modi told a recent audience: “I ama faqir. I will sling my jhola on my back andmove on…I have nothing to lose.”

The subliminal message is just as yousuffered with Gandhi to get rid of slaveryunder White Raj, you are now sufferingwith me to get rid of your serfdom to BlackMoney Raj. As one wise friend observed:“He has people believing in not only a bet-ter tomorrow but a more self-righteoustomorrow.” The catch: The time-framewithin which the hopes he holds out may bebelied is shorter—that is his risk in his pri-vate experiment.

So, it’s NOT the economy, stupid! Orwill Modi be proved wrong?

Footnote: There is one crucial difference.The masses never saw Gandhi seekingpower for himself. His satyagraha was toempower others.

logical genre in which the worker, standingendlessly in queue, is relishing a “revenge”against the fat cat who Modi says stole thecommon man’s money and impoverishedhim by stashing it into black cash which heis now being forced to surrender while alsobeing punished for it.

Many of those in queues will beat theirchests over what they have been reduced to,yet at the end, repeat “but Modi’s intentionsare good,” out of fear of retaliation. Someare paid BJP workers instructed to hog thecamera space. Not surprisingly, the mostvociferous pro-Modi voices when you turnthe camera on them are known black-mar-keters and merchants. Ask the person inqueue whether he sees any of the blackmoney merchants waiting in the lines andthe universal answer is an emphatic No,Only The Poor Are Suffering Because ThePeople With Black Money Were Tipped OffBy Bankers And Politicians And HaveAlready Converted Their Loot.

Of course, there’s an irony! The con-tradictions are obvious! The suf-fering is for real. The economists,

Left and Right, predicting long-term eco-nomic chaos may well be right. But in myview, all this is inconsequential to Modi’stheatre. At a political level, it has dramatur-gical and symbolic perfection that strikesdeeply into the Indian psyche. It is a bril-liant pre-modernist idiom which evenGuru Golwalkar and the wise men of Nag-pur could not master.

In Gandhian idiom, Modi, no matterhow colorful his expensive attire, is still therevolutionary “naked faqir” (Gandhi) whodestroyed the well-clad Churchill. In reli-gious terms, he is the Buddha-like seeker,the tyagi who left his wife and family and suffered terribly to seek the truth toend Kalyug.

His crusade against the Kalyug of BlackMoney resonates with many Indians withGandhi’s culture of satyagraha whichinvolves the masses in a ritual of self-sacri-fice, a “yagna” as Modi called it, of self-fla-gellation, a participation in purification toachieve freedom from oppression. Duringthe Swadeshi Movement against the Bri- [email protected]

Modi’s crusadeagainst the Kalyug of Black Money resonates with manyIndians withGandhi’s culture ofsatyagraha whichinvolves the massesin a ritual of self-sacrifice, a “yagna”...to achieve freedomfrom oppression.


Udayshankar

DECEMBER 31, 2016

Economic EmergencyThe focus of the government’s demonetization drive has shifted suddenly—fromfighting black money to leading the nation into a cashless era—plunging it intotroubled times

20LEAD

This Himalayan kingdom, too, is affected by demonetization which has impactedtrade, tourism and pilgrimages

36Bhutan’s Rocky Road

6 December 31, 2016

As India attempts to go digital and cashless in a hurry, threats of cyber crime hauntbanks, traders, customers and investors

28Cyber Scams

Demonetization has hit the financial system of this state’s border districts.How will the resulting public fury be contained?

32Bengal’s Powder Keg

Former Union Carbide chairman Warren Anderson escaped the clutches of law forthe Bhopal gas tragedy. But the then collector and SP have been issued summons

38MP Babus in a Fix

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STATES

A move by the DGCA to cancel the licenses of pilots who feign sicknesshas rebounded with pilot unions serving the regulator with a legal notice

Dogfight in the Skies 66

Follow us on Facebook.com/indialegalmediaand Twitter.com/indialegalmedia

70WHO has dropped the word “counterfeit” and replaced it with “substan-dard and falsified” for drugs in keeping with public health concerns

What’s in a Name?

Cover Design : ANTHONY LAWRENCECover Photo : GETTY IMAGES

MEDICINE

A judgment in a defamation case involving the kin of the chief justiceand a journalist is set to decide the limits of free speech in Bhutan

51Fight for Freedom

FOCUS


62Repeated infiltrations by terrorists have shown the vulnerability of thedefense forces which need to gird themselves to tackle new realities

India’s Vulnerable Army

The UK government’s exercise to have a public consultation on it hasstirred a hornet’s nest. Even in the UK, this is an emotive and ugly issue

Britain’s Caste DivideGLOBAL TRENDS

74

It’s not the physician but a burgeoning army of middlemen that hospitalsare pampering. An extract from Dr Kamal Mahawar’s The Ethical Doctor

Reign of the ToutBOOKS

78

A collection of new vocabulary spawned by cashless, new India When Cash Became TrashSATIRE

82With rising instances of verbal and physical intimidation by lawyers,the Law Commission is now examining the 1961 Advocates Act

54Lawyer, Regulate Thyself

41A new political axis emerges as OBCs, Dalits, Muslims and Patidarsjoin hands to take on a government that is lurching from stir to stir

BJP Flounders in Gujarat

COURTS

Though the HC has asked the Haryana government to take a call onthe frozen body of Ashutosh Maharaj, a Dera chief, it is clearly reluctant

58Frozen Faith

REGU

LARS

Responses ...................................................................8Quote-Unquote ......................................................... 10Ringside .................................................................... 11�Dilli-Durbar ...............................................................12Courts .........................................................................14�Media Watch............................................................17National Briefs............... ............................................ 18International Briefs......................................................77Wordly Wise .............................................................. 81

Political parties gear up for the big fight in UP in the face of currencydemonetization, caste polarization and law and order issues

44Polls in Notebandi TimesPOLITICS

Her demise notwithstanding, some of the cases filed againstJayalalithaa over the last 23 years will continue

48Jaya’s Fraught LegacyLEGAL EYE

SECURITY

AVIATION

8 December 31, 2016

RESONSES

“Cashless Economy is aUtopian Idea”

The lead story on demonetization— “It is a foolish step... The poor will suffer the most”—posted on Indialegallive.com and featured in the December 15 issue of India Legal garnered phenomenal response. It went viral on Facebook and Twitter. Here are some ofthe best responses we got:

This is a hasty and a very foolish step withoutconsidering its consequences, especially in theunorganized sector and for the common people.We were very much disturbed by the decision ofthe PM as it is going to affect the very fabric ofIndian economy which depends on liquid cash.

—Prof PC Narasimha Reddy

The hype about blackmoney and the blackeconomy was the cre-ation of armchaireconomists like ArunKumar and theLeftists who wereblaming the elite.Now that the secularlobby has beencaught with pantsdown, the Leftistlobby is againstdemonetization.

They should understandthat the black economy was good for

money-lenders (who bled poor farmers andlaborers), gamblers, match-fixers, extortionists,illegal hawala operators, etc. What use is moneyin cold storage for the economy except duringelections, anti-establishment agitations like IndiaAgainst Corruption, stone-pelting, bomb blasts,riots etc.

—Ramaj

With about 80 percent transaction in cash, 70percent population living in villages and with alarge section of them being illiterate, cashlesseconomy is a utopian idea. Moreover, in manyvillages in eastern India and the North-East,

there is little existence of commercial banks. — Debasish Chatterjee

I consider Professor Arun Kumar a real authorityon black economy. Here also he has analyzedthe issue in a scholarly manner and without any bias.

—R Singh

I don’t think his analysis is suited for the currenteconomy or situation. No one can predict thisnew model.

—Sivakumar J

With due respect to the author, he seems to bevery affected by demonetization. On a differentnote, the background of all the images shows alavish place. Who knows where the money camefrom to decorate it in such a way?

—Manas Mitra

It doesn’t require Arun Kumar to tell us theimpact of demonetization, but if it can containterrorism and Naxalism even by one percent, it’sworth the pain of standing in queues to get ourown hard-earned money, while those with hoardsof black money watch from cars and laugh at us.

As a citizen, I doubt the intention behinddemonetization. The decision seems to be influ-enced by politics more than economics. That iswhy we see that not one of the politicians,bureaucrats, actors, top industrialists or evenswamis who are the main holders of blackmoney being arrested.

Anyway, let us wait till December 31 and seehow honest this idea is. Hope Modi hits at the


root cause. Corruption, lack of transparency,high taxes, etc, need to be addressed first tostrike at the root.

—Vasanth Reddy

Whatever Arun Kumar said is correct. But heignored the major impact of the scheme—accountability. In case of suspicion, the moneycan be traced. The larger fish cannot get away inthe present scenario as they don’t have much ofa choice. One thing that’s needed for the countrynow is stringent scrutiny.

—Roop Chand

I agree with Professor Arun Kumar’s views. I feel there are hidden agendas and it is part of along-term plan. There is a method in the madness/cleverness to favor something. May weexpect a white paper by the government on thesudden proclamation and viciousness ofpainting everyone opposing it? Let it be probedby a JPC.

—Arun Singh

If you take out 85 percent blood from someone’s

body and then put five percent into it, what willhappen? That person will die. Similarly, when youtake out 85 percent liquidity from the economyand slowly replace it by five percent, the circula-tion of income comes down. Your facts are notclear. The government is not hijacking anyone’smoney. People are allowed to use all the moneythey have, only now they will have to check itsuse. The government has an eye on everyoneand can differentiate between who is poor andwho is honest.

—Alpesh Rathod

On the day of the demonetization announce-ment, I had `2.7 lakh cash with me. My averagemonthly expense is `0.6 lakh. After depositing allthe money, I have drawn `30,000 so far andfound it sufficient. We are used to holding five to50 times more cash than we actually need andtransact. The perceived problem of liquidity,based on money in circulation, will not lead us toa logical discussion. You cannot reliably estimateor guess the quantum of liquid cash

— Ranjit Kumar

Please email your letters to:[email protected]

Or write to us at:India Legal, ENC Network,A-9, Sector 68, Gautam Buddh

Nagar, Noida (UP) - 201309

—Compiled by Puneet Mishra

There is this concept ofPaytm. Pay To Modi, that’s theidea behind cashless econo-my. That a few people shouldget maximum benefit fromcash transactions.

—Congress Vice-President RahulGandhi, in The Times of India

10 December 31, 2016

QUOTE-UNQUOTE

We will fight to protect every last Americanlife. During the campaign I also spent time

with American workers who were laid offand forced to train the foreign workers

brought in to replace them. We won’t let thishappen anymore.

—US President-elect Donald Trump, on cases likethat of Disney World wherein people were hired on

H-1B visas, speaking to his supporters in Iowa

I salute the people of India for whole-heartedly participating in this ongoingyagna against terrorism, corruption andblack money.

—Prime Minister Narendra Modi, on Twitter

People send representativesto speak, not to sit on dharnaor create any trouble on thefloor. That is D level. Only afew weeks in a year do parliaments meet.

—President Pranab Mukherjee,expressing dismay over the chaos in

parliament, at a function in Delhi

Pakistan is conspiringto divide India on reli-gious lines but it will notsucceed…. If it doesnot mend its ways, itwill get splintered into10 pieces and India will

have no role in it.—Home Minister Rajnath

Singh, at the Martyrs’ Dayfunction in Kathua district

Congress has only exposed its illiteracy aboutthe law of the land. They believe that black

money can be turned into legitimate cash justby depositing it in banks…. It seems that

they subscribe to the Virbhadra Singh School of taxation.

—BJP spokesperson Meenakshi Lekhi, in The Times of India

I am no one or in no position to question someone else’s technique orfaults.... I am not going to sit here and

play sarcastic mind games. I want to focus on good cricket and that is

exactly what we have done.—Indian captain Virat Kohli, on England team’s

last batsman James Anderson’s remark that theIndian captain's technical deficiencies were not on

display because of the docile Indian pitches, inIndia Today

“I shall tell you a great secret my friend. Do not wait forthe last judgment, it takes place every day.”

�Albert Camus, author, 1913-1960

VERDICT



The stars seem aligned for foreign secre-tary S Jaishankar to get an extension whenhis term ends next month. He was appoint-ed on January 29, 2015, just two daysbefore he was due to retire and since then,has become one of Prime MinisterNarendra Modi’s most trusted officials. Hehas played a major role in Modi’s foreignpolicy outreach and global agenda and isalso seen as invaluable to National SecurityAdvisor Ajit Doval. In fact, with foreign min-ister Sushma Swaraj unwell for most of2016, it was Jaishankar who dealt with thePMO. The buzz is that he could even get atwo-year extension till the full term of theNDA government. His experience andexpertise on China and the US have stood

him in good stead and his views on isolating Pakistan have found favorwith the PMO. The other officer in line for the job is Anil Wadhwa, ambas-sador in Rome. A dark horse, who is also Modi’s favorite, is NavtejSarna, ambassador to the US.

BJP MP Meenakshi Lekhi hasbeen keeping a low profile in thedemonetization debate raging onTV. Reason: she fears beingreminded of the manner in whichshe had attacked the UPA govern-ment’s decision in 2014 to with-draw all currency notes issuedprior to 2005. As BJP

spokesperson then,Lekhi had rubbisheddemonetization as a“gimmick” which was“anti-poor”. Butdespite keeping offTV, the feisty MP hasbeen helping Modi’sdemonetization drive

in her own way. She has been active atthe RSS headquarters in Delhi instruct-ing sewaks on going cashless. She hasbeen training them to use smartphonesand apps like Paytm to carry out theirdaily transactions. And many vouchthat she is not only an effective com-municator but also teaches well in thematra bhasha!

Post the successful kidney transplant surgery ofExternal Affairs Minister Sushma Swaraj, it isnow clear that the PM will have to undertake aminor cabinet reshuffle after the Winter Sessionto appoint a new foreign minister. Swaraj hasconveyed to the PMO that she could take aslong as six months to fully recover. There areimportant foreign policy related issues comingup, including a visit by Modi to Israel, the first byan Indian PM. India also has to deal with theunpredictable nature of a Trump presidency.Modi is unlikely, sources say, to promote either ofthe two ministers of state in the ministry, GeneralVK Singh and MJ Akbar, and will opt for some-one he is close to and can trust implicitly.

Replacing Sushma

Foreign Affairs

DELHI DURBAR

Here’s an inside track onhappenings in Lutyen’s Delhi

Tech-savvy Lekhi

Senior UP minister AzamKhan’s apology submit-

ted in the Apex Court overhis comments on theBulandshahr gangrape(UP) was not considered“unconditional” by the apexcourt. Khan was asked tosubmit another one in tunewith the Court’s November17 order.

Khan had gone on

record saying that the dastardly gangrape wasnothing but a political conspiracy.

Attorney General MukulRohatgi and senior lawyerFali S Nariman, who areamicus curiaes in the casewere not satisfied with theapology’s content and toldthe Court that it did not gowith its order.

The Court would vali-date in the next hearingwhether the new apology isunconditional. It would alsoexamine whether a personholding public office couldmake disparaging com-ments on rape and murderincidents, despite the out-come of Khan’s case.

The Supreme Court kept up its pres-sure on the center for constituting a

Lokpal as early as possible. It had dur-ing an earlier hearing warned that itwould itself form the Lokpal if the gov-ernment procrastinated further. In a

recent hearing, the Courtasked the center to sub-mit the report of the par-liamentary standing com-mittee that had proposedchanges in the Lokpal andLokayuktas Act 2013.

The changes werenecessitated after the Leader

of the Opposition’s post becameinfructuous after the 2014 Lok Sabhapoll results.

The LoP was part of the committeeunder the Act to select the chairpersonand members of Lokpal. The newLokpal bill presented before parlia-

ment, had changed the post to Leaderof the Largest Opposition Party.

The PIL drawing the Court’s atten-tion to the formation of Lokpal wasfiled by the NGO Common Cause.

The Apex Court also wanted to beapprised by the center as to what other changes were needed to makeLokpal workable.

The counsel for the centerinformed the Court that the gravity ofthe situation was conveyed to highestechelons of power and reiterated thatthe process would be fast-tracked Thematter was to come up for hearingagain on December 14.


Although it did not pass anorder on removal of liquor

vends and signages leading toliquor shops on national andstate highways, the SupremeCourt expressed serious concernover accidents caused by drun-ken driving.

The Court indicated that itmay order closure of such liquorshops in future. The observationcame while the Apex Court washearing a clutch of petitionsseeking amendments to theexcise laws in that regard.

The Court expressed dis-pleasure over many states failingto shut down liquor shops onhighways. It pulled up the centertoo for neglecting the issue foralmost a decade and crying foulnow. The logic that revenue

coming from the sale of liquorfrom such shops outweighedother concerns did not passmuster with the Court.

Some states like Puducherry,Punjab, Haryana and liquor mer-chants associations tried hard toplead that there was nothingamiss with liquor shops alonghighways, but failed to convincethe Court. Rather, they werepulled up for being irresponsible.

SC seeks report on Lokpallaw changes

Azam Khan to fileanother apology

Court may ban liquorvends on highways

COURTS

The controversy over the appointment ofAMU vice-chancellor (VC) Lt Gen

Zameeruddin Shah (retd) remained unresolvedas the Supreme Court decided to take it upagain in January 2017. It will, however, alsohear simultaneously the arguments on whetherAMU is a minority institution, thus slotting boththe petitions together.

Shah’s appointment was challenged bySyed Abrar Ahmed in the Allahabad High Courton the ground that all UGC stipulations in thisregard were flouted with impunity. While theHigh Court had struck down the plea, this waslater taken up by the apex court.

Ahmed’s counsel pleaded that AMU couldnot bypass UGC guidelines, being a central

university. According to the UGC laws, aVC of a central university must be a dis-tinguished academician with at least 10years’ experience as a professor or hold-ing an equivalent position in an aca-demic organization.

The counsels for AMU and Shahcountered that AMU had been perceivedas a minority institution over the yearsand a renowned Muslim person hadbeen always been at the helm.

The center, however, stood by theSupreme Court verdict delivered in1967, which said that AMU was a cen-tral university as it was born through anact of parliament.

SC clubs two AMU pleas for hearing


The Supreme Court pointed out that thecurrent punishment (two-year jail term,

a fine or both) for causing death due to rashand negligent driving was too soft a deter-rent for reckless drivers.

“There has to be a fear of law amongthe people…” the Court said. It directed thecenter through its counsel Mukul Rohatgi to

look into Section 304A of IPC closely interms of a much severe punishment andrespond within 8 weeks. The Court pointedout frequent deaths and disabilities wroughtby drunk-driving accidents.

Earlier, the Court had rapped the centerfor not acting on its order to amend Sec-tion 304A.

Stringent law on reckless driving

Rulers of princely states got relief fromthe Supreme Court, which ruled that

money earned from putting a part of theirpalatial properties on rent could not betaxed by the income tax authorities. TheCourt’s observations came during the hear-ing of a plea of a ruler of the erstwhile prin-cely state of Kota. He had given out a por-tion of his Umed Bhawan Palace on rent.

The IT department had kicked off theprocess of tax calculations on his incomefrom rent in 1984. This was despite thecenter’s declaration that such properties

could not be included in the income taxbracket through Section 10 (19A). TheCommissioner of Income Tax and IncomeTax Appellate Tribunal had disapprovedthe action of the IT department.Thereafter the department hadapproached Rajasthan High Court, whichupheld the action of the department, rul-ing that the Kota ruler could not put a por-tion of his palace on rent and yet claimtax exemption; that was possible onlywhen he occupied the entire property.

But the Apex Court ruled that Section

10 (19A) had awarded tax exemption forthe “palace” and it could not be interpreted differently and even lashed out at the ITdepartment for its action.

No tax for putting palace on rent


COURTS

Triple talaq is unconstitutional

Even as the Supreme Court is yet totake a call on the constitutional

validity of triple talaq, the AllahabadHigh Court has ruled that the practiceis cruel, discriminatory, against theconstitution and denies rights toMuslim women. It further added thatpersonal laws of any community can’ttake precedence over the Constitution.

The Court’s views echoes thestand taken by the center in theSupreme Court.

The Court’s observation came

while hearing a petition filed by a cou-ple from UP who sought protectionfrom harassment. During the hearing,the Court came to know that the hus-band had a previous wife whom hehad divorced through triple talaq.

“Woman cannot remain at themercy of a patriarchal set-up…. Triple talaq has been deprecated andnot followed by all sects of Muslimcommunity…. It impedes and dragsIndia from becoming a nation,” theCourt said.

—Compiled by Prabir Biswas, Illustrations: UdayShankar

Twist indivorce law In a significant ruling on

divorce among Hindus, a fullbench of the Bombay HighCourt has said that divorcedecrees awarded under theFamily Court Act could becontested within 90 days, as mentioned in the HinduMarriage Act 1955. The previous time-limit under the Family Courts Act, 1984,was 30 days.

The verdict lays to rest theconfusion between the twolaws. The High Court had ear-lier referred the matter to alarger bench to clear the confusion.

The verdict will come as arelief to couples who havebeen divorced by familycourts and want to appeal inhigher courts.

Show respect to National anthemAll patrons must stand up as a mark of

respect when the national anthem isbeing played in cinema halls, the SupremeCourt ruled. The Court also made itmandatory for theaters to show the nation-al flag on screen while the anthem wasbeing played, before a movie starts.

The Court wanted to inject a feeling of“committed patriotism and nationalism”among Indians. It also ruled that neither

should there be commercial exploitation ordramatisation of the anthem, nor should itbe used for entertainment purposes. Anddoors of cinema halls can’t be kept openuntil the anthem ends, the Court made itclear. In later rulings, the Court declined arequest for an order to play the anthem incourts, gave a relaxation for the disabledand posted the hearing against its anthemorder to February 14.

Delhi HC clarifies copyright lawsAdivision bench of the Delhi High Court

ruled that Rameshwari PhotocopyService—accused of copyright infringe-ment by five international publishers forphotocopying their books as DU coursematerial —could not be held guilty as itwas done for educational purposes. Whilepointing out that it was the “purpose” and“utility” that mattered, the Court allowed itto photocopy unlimited text if deemed fit by

the course syllabus. The matter has beensent back to ascertain whether educationwas indeed the purpose.

Five international publishers had earlierapproached the Court alleging that distribu-tion of “coursepacks” by the shop in DelhiUniversity was a copyright violation. A single bench hearing the plea did notagree. The publishers then approached alarger bench.


Open magazine has opened a canof worms with its cover story ondemonetization in its November

18 issue. Titled Freedom at Midnight, thepiece, written by PR Ramesh, the maga-

zine’s managing editor known for hisaccess to the finance ministry, carried thesensational claim that an anchor at NDTVwas being questioned by Income Tax offi-cials over the source of funds for hisrecent purchase of a house inChanakyapuri. Ramesh did not name anyone but as most of NDTV’s anchorsare female, the list of potential buyers (if the story is true) is relatively small.

For those unfamiliar with Delhi,Chanakyapuri is the capital’s pampereddiplomatic enclave where property pricesare stratospheric. There has been muchspeculation in media circles about theanchor’s identity unless, of course, it is acase of someone high up in the ministrygetting back at NDTV for personal reasonsor as part of official knee-jerk attacks on independent media.

The favorite guessing game, andnot just in media and governmentcircles, is what will Arnab

Goswami do next? It is now known thatRahul Shivshankar from News X, whoonce worked under Arnab at TimesNow and is pretty much a clone interms of anchoring style, will moveback to take the studio chair vacatedby Arnab. The latest buzz is that Arnabis close to finalizing a deal involvingRajya Sabha MP RajeevChandrashekar and Rupert Murdoch’sStar TV. Bangalore-basedChandrashekar is an entrepreneurwhose company Jupiter Capital ownsand operates media companies includ-ing Asianet News, Kannada Prabha andSuvarna News 24X7. He also has radiostations but he has always wanted anational media profile and Arnab giveshim that opportunity. A tie-up with StarTV will offer the perfect troika as UdayShankar, Star TV’s CEO, is essentially anewshound and once headed what isnow TV Today, the television news bou-quet from the India Today group. Talksare reportedly on and it is certain thatArnab will not just be the lead anchorand CEO of the new channel but alsohave some equity in the venture.Watch this space.

Noise about Arnab

NewsX, the channel started byPeter and Indrani Mukerjea,could soon see yet another

change of ownership. The news chan-nel is currently owned by InformationTV (ITV), run by Kartikeya Sharma(with Rahul Shivshankar as editor).The acquisition was the third changeof ownership. Peter and Indrani, cur-rently in police custody, had run intofinancial trouble and sold their staketo Jehangir Pocha and Vinay Chajlani.Pocha (now deceased) was widelybelieved to be a front for Niira Radia (theRadia tapes clearly suggest as such),while Chajlani is from the Nai Dunia news-paper group. ITV had bought them out toadd to its media presence which includesthe Hindi news channel India News. Now,it appears that Rajat Sharma of India TV is

looking to get into the English news chan-nel space and is reportedly in talks to buya majority stake in NewsX. Sharma is con-sidered close to the powers-that-be andhis channel is among the more profitablein the Hindi news space, just behind AajTak. Both sides are keeping their cardsclose to their chests but sources confirmthat talks are on.

It’s rare to hear of aDoordarshan journalistgetting death threats but

that is precisely what has gotthe state-owned broadcaster

into a controversial tangle.The journalist, SatyendraMurli, started getting deaththreats after he addressed apress conference at thePress Club of India onNovember 24, and declared

that Prime Minister NarendraModi’s address to the nationannouncing demonetizationwas actually a recordedmessage and not live. If true,that would put a dramaticnew spin on the demonetiza-

tion narrative. Ever since, thejournalist has been inundat-ed with hate mail and threatsand has also been hauledup by his bosses and ques-tioned about his sources andmotives.

Dissenter in DD

The NewsX Saga

Anchor’s Aweigh!

MEDIAWATCH


Justice Jagdish Singh Khehar has been recom-mended to be the 44th Chief Justice of India.

He will succeed Justice TS Thakur who will demitoffice on January 3, 2017. Khehar served as thechief justice of Uttarakhand High Court andKarnataka High Court and was the acting ChiefJustice of Punjab and Haryana High Court twice.When he takes over, he will be the first Sikh tooccupy the important post.

Khehar had presided over the five-judge consti-tution bench that struck down the controversialNational Judiciary Appointment Commission(NJAC) Act for the appointment of judges asunconstitutional.

JS Khehar is the next CJI

NATIONAL BRIEFS

The income tax authorities haveaccused Congress party member

and former chief minister of Punjab,Captain Amarinder Singh, of giving afalse statement on oath in relation to aforeign registered trust and propertiesabroad. The trust was set up by his sonRaninder Singh. Earlier, Capt Singh wasquestioned by the income tax depart-

ment regarding these properties. Capt.Singh has said that this move is simplydue to political vendetta against him byfinance minister Arun Jaitley. He saidthat the matter is now in court and theincome tax department and EnforcementDirectorate have not been able to substantiate the charges for the past two years.

Capt Amarinder under I-T lens

Headed by CJI TS Thakur, theSupreme Court collegiums post-

poned recommending names ofjudges to be appointed at theSupreme Court till the new CJI joinsoffice on January 4, 2017. Seven

vacancies would arise followingThakur’s retirement next month. AfterJanuary 3, the collegiums wouldcomprise the new CJI JS Khehar,Justice Dipak Misra, Justice JastiChelameswar, Justice Ranjan Gogoi

and Justice Madan B Lokur. News of internal grouse

is doing the rounds withJustice Chelameswar notattending any meetingssince September aftercomplaining of lack of prop-er framework for discussionand recording of views bymembers who are in thezone of consideration forbeing recommended for appointment as SC judges.

Seven vacancies to be filled after CJI joins

Former Indian Air Force chief, Air ChiefMarshal SP Tyagi (retired), and two

other key accused have been arrested forcriminal conspiracy and illegal gratificationcharges by the CBI in the 2005-06 VVIPchopper deal scam. Tyagi’s cousin Sanjeev(Julie) Tyagi and lawyer Gautam Khaitanare the two others in custody. Tyagi isaccused of tweaking technical require-ments of the tender for copters to swingthe deal in favor of Finmeccanica sub-sidiary Agusta Westland. This is the firsttime that a former armed forces chief hasbeen held for corruption

Former IAF chief arrestedin VVIP chopper scam

The CBI has filed achargesheet against

former telecom ministerDayanidhi Maran, his brotherKalanithi Maran and others forallegedly setting up an illegalBSNL phone exchange at theformer’s residence. The othersnamed in the chargesheet are

the former minister's then per-sonal secretary and two BSNLchief general managers (nowretired). The CBI, whichalleges a loss of `1.78 croreto the exchequer, has invokedprovisions under the IndianPenal Code and thePrevention of Corruption Act.

CBI chargesheets Dayanidhi Maran


Recently, law minister Ravi Shankar Prasadinsisted that the government has no inten-

tion of interfering with judicial appointments.He said this on December 7, in response to aquestion ont “Agenda Aaj Tak” as to why elect-ed governments want control over the judiciary.Prasad cited Dr BR Ambedkar’s remarks dur-ing one of the Constituent Assembly debatessaying that they did not wish the power toappoint judges to remain with one single hand.The judiciary and the government have notbeen able to agree, so far, on the details of thememorandum of procedure to appoint judges.

West Bengal BJP leaderManish Sharma has been

arrested by Special Task Force(STF) and `2,000 notes worth`33 lakhs were seized from him.The STF also took several sus-

pected members of the coalmafia into custody. BeforeBengal went to polls, the then-state president of the BJPminority cell, Shakeel Ansari,had alleged that Sharma was

being fielded from Raniganjbecause of his strong financialpower. In another incident, aBJP youth leader from Salemwas arrested with bundles of`2,000 notes worth `20.55 lakh.

Licencse of noted lawyer IndiraJaisingh’s NGO Lawyers

Collective has been permanentlycancelled for alleged ForeignContribution (Regulation) Act viola-tions. The Home Ministry’s orderclaimed they had received foreignfunds between 2006-07 and 2013-14 when Jaisingh was theAdditional Solicitor General of India.In a statement issued by the NGO,it termed the order as “preposter-ous” and further said “strangelyenough, the order is passed on aSunday, when government officesare closed”.

—Compiled by Sucheta Dasgupta, Nayantara Roy and Usha Rani Das

Minister assures “no interference”

BJP leaders held in West Bengal with cash

Indira Jaising NGO’slicense cancelled

Chief ElectionCommissioner Nasim

Zaidi wants the law to beamended to make distribution of moneyamong voters by candi-dates, their agents andsupporters, a cognizableoffense so that offenderscan be arrested withoutbail. He also wants theprison sentenceenhanced from six

months to two years. Thechanges can be made viaan ordinance as there isshortage of time, he hassuggested. He also pro-poses that “paid news”be made an offense under the Representationof the People Act, and thepunishment for filing offalse affidavits beenhanced from sixmonths to two years.

EC pitches for amendment

FROM fighting the scourge ofblack money to heralding abrave new cashless digital era,the government’s demonetiza-tion drive has seen severalsharp twists and turns. Asmany as 50 new announce-

ments have punctuated the one month sincethe `500 and `1,000 currency notes ceasedto be legal tender from November 9.

The rash of revisions and counter-revi-sions pertaining to the defunct currency andthe terms of returning it is seen by manywithin the government as a manifestation ofthe abysmal lack of planning that went intothe exercise. The aftershocks of India’s finan-

From fighting black money to leadingthe nation into a cashless era, the

government’s demonetization drivehas taken a sharp turn, plunging the

nation into troubled times By Ajith Pillai


LEAD/DEMONETIZATION/IMPACT

Anil Shakya

The PlotUnravels

zation could help fight black money. But wethought the entire plan must have beenthought through. Now we know it was not.”

KEPT IN THE DARKIn fact, there is a buzz within the bureau-cracy that perhaps even Union FinanceMinister Arun Jaitley was kept in the darktill the very last minute. This speculation hasgained a degree of legitimacy after WestBengal Finance Minister Amit Mitra revea-led to TV host Karan Thapar in an interviewon December 8 that a senior cabinet minis-ter had told him how the entire cabinet waskept out of the loop.

Said Mitra: “I must confess that

cial 9/11 continue to shake the nation as itenters the second month of disruption with-out a pause.

The confusion within the governmentwas best explained to India Legal by a fin-ance ministry official. “None of us knew any-thing about what was coming. We first heardof it on November 8 when the PM made theannouncement. I don’t think even at the sec-retary level, people knew about it. The entiredecision-making process was bypassed. Oneunderstands that demonetization was notdiscussed in the cabinet or at the CabinetCommittee on Economic Affairs (CCEA). Wewere simply shocked, although many of uswondered at the outset as to how demoneti-


� If GDP declines by 2percent, as predicted byDr Manmohan Singh, ittranslates into a loss ofaround `3 lakh crore. If itgoes down by 3.2 percent, as suggested by oth-ers, then the loss would beabout `4.75 lakh crore.� Demonetization couldtake away 4 lakh jobs inthe next one year. Sectorswhere jobs will be affectedinclude e-commerce, luxury goods stores, shop-ping malls, textiles andgarments industry, tourism,hospitality business andaviation.� Employment opportu-nity in the unorganizedsector, which accounts forover 90 percent of India’swork force, is fast dryingup. Those affected are in the agriculture sector,fisheries, constructionwork, manufacturing andservices. � Several hawkers andthose plying trade haveseen a sharp drop in busi-ness. Many have had toreturn to their villages. � Several sectors arebracing for a downturn inbusiness, including small-scale industries, leather,automobiles, real estate,diamonds and gems,cement, steel, consumerdurables, FMGC and theretail business. � The rural economy isreeling under the shock ofnotebandi. Farmers arefinding it difficult to selltheir produce at mandisbecause of the cashcrunch. Organizing fundsfor inputs like fertilizer hasbecome very difficult.

Demonetization’sdownside

GAME OF PATIENCEWaiting for hours in

queues to get `2,000, onlyto return empty-handed onmany occasions, added to

the frustration of people

a Union cabinet minister said to me thatthey (the entire cabinet) were taken to aroom and they thought the PM would speakto them. But that did not happen. Instead,they saw the Prime Minister on the TV scr-een making the announcement to the entirenation. They heard about it (demonetiza-tion) like all of us—at the very same time.”

When asked about the identity of theminister, Mitra said he was referring to a“very senior member of the cabinet” and thathe had met him at a GST Council meeting inDelhi in the first week of December. The inference drawn by many was that theminister in question could be none otherthan Jaitley.

A day after Mitra’s disclosure, a Reutersreport surfaced throwing light on the manbehind the demonetization drive. He wasidentified as Union revenue secretary Has-mukh Adhia. A 1981 batch IAS officer, hewas principal secretary to Narendra Modifrom 2003-2006 when the latter was Guja-rat chief minister. Adhia, a gold medalistfrom IIM-Bangalore and a PhD in Yoga fromSwami Vivekanand Yoga University, Ban-galore, enjoys the trust of the prime minister.

Adhia took over as revenue secretary inSeptember last year and officially reported tothe finance minister. But for all practicalpurposes, he worked under the PM. He andfive others, sworn to secrecy, and a team of

researchers operated out of 7 Race CourseRoad. They comprised the team that plann-ed the demonetization exercise and includeddata crunchers and those associated withNarendra Modi’s social media campaign inthe 2014 general elections.

According to sources, the group zeroed inon demonetization for the following reasons:(a) it would root out black money by render-ing undeclared income in high denomina-tion notes invalid and unusable; (b) ensure

ECONOMY IN REVERSE GEAR

(Clockwise from above) Lack ofwork and demand was visible

everywhere, from daily labor tojewelry showrooms. People

skipped their offices or household duties to stand in

queues for cash



Photos: UNI

liquidity in banks reeling under Non-Per-forming Assets amounting to over `6.30lakh crore; (c) it would derail the electionplans of opposition parties and immobilize abig chunk of their funds in two key poll-bound states—UP and Punjab.

D-DAY ADVANCEDThe original plan was to explode the “D-Bomb” on November 18, a Friday. It was feltthat this would give a breather to banks to

swing into action over the weekend. How-ever, the date was advanced to November 8because of fears that the news may be leakedto the media and would enable black moneyhoarders to convert their loot to white.

Much of the groundwork for the “surgicalstrike” was done by Adhia’s team. Data ontime taken to print and distribute new noteswas collated. Notes were prepared on theafter-effects of demonetization and how itwould impact various sectors and how bankswould benefit from a sudden inflow of funds.Everything was factored in except one cru-cial aspect—the overwhelming dependenceof the ordinary citizen on the `500 rupee inday-to-day financial transactions.

A former bureaucrat in the know toldIndia Legal: “The calculations were maderather haphazardly. I believe that if the planhad been discussed in the finance ministry,the glaring loopholes would have been point-ed out. Similarly, had the CCEA been takeninto confidence, it would have raised severalobjections and pointed out the pitfalls. Butthat did not happen. I understand that eventhe RBI was informed about the intro-duction of new notes but very few people inthe central bank were aware of the enor-mity, suddenness and scale of the demoneti-zation exercise.”

In retrospect, the black money math wasrather simplistic. It was initially assumedthat of the `15.44 lakh crore of high denom-ination notes in circulation, not more than`8-9 lakh crore would be returned to thebanks. The unreturned (about `5 lakh crore)money would constitute the black compo-nent in circulation that could be declaredneutralized. This is the money that the gov-ernment hoped it could leverage for develop-ment work and to kick-start the economy.

NARRATIVE CHANGESHowever, it became clear within a fortnightof demonetization that no significant amo-unt of black money has been neutralized. Itbecame evident by the volume of deposits inbanks that much of the money in circulationwould be returned. So the black money van-quished through demonetization would notbe big enough to trumpet about and scorepolitical brownie points.


Union revenuesecretaryHasmukh Adhia(above) and ateam ofresearchers,data crunchersand those associated withNarendraModi’s socialmedia campaign planned thedemonetizationexercise.


The narrative had to be changed. ByNovember 20, the punchline was no longer a“war on black money”. It had changed to a“march towards a cashless economy”. Theprime minister’s speeches suddenly becameless focused on black money, although hecontinued to berate those who opposed note-bandi as belonging to the corrupt class.

Meanwhile, a month into demonetiza-tion, only 30 percent of the money that hadbeen declared illegal was replaced with legaltender by the RBI. The result: a severe cashcrunch that hit practically every strata ofsociety, more so the poor. Queues at banksand ATMs have shown no signs of shrinkingand news that it would take at least six months for normalcy to return spread panic.People began to hoard acceptable curr-ency at home and became austere in theirspending—an unwelcome sign for a growingeconomy.

Even the IT raids on black money publi-cized in the media were due to establishedmethods of detection and not thanks to

demonetization. What’s worse, in many ofthe raids, the black money unearthed was inthe new `2,000 notes or its counterfeits. Sothe introduction of new currency did notdeter fraudsters.

Frustration soon began to rear its head. V Ranganathan, a former IIM professor whoinitially backed the demonetization drive,had this to say: “I now feel like kicking my-self. I was among the first to welcome theinitiative on November 9. I thought the PMand his team had all the logistics worked outand the plan would roll out in an acceptablemanner. Today I feel like an idiot. And theunfortunate part is the man on the groundthinks that the rich guy is getting screwed soit is worth paying for. The poor sucker doesnot know that it’s people like him from thelower strata who are getting screwed.”

Slowly but surely, the tide began to turn.A Huffington Post-Business World-C Votersurvey on December 8 across India sho-wed that sentiment was swinging against thedemonetization drive in both rural andurban India. While people were highly sup-portive of the government in the first twoweeks, the continuing cash crunch and the prolonged disruption of their lives wastesting their patience. However, they stillwere with the BJP given the disarray in theopposition.

ECONOMIC EMERGENCYThe paucity of cash in banks imposed a rece-ssion and an undeclared economic emer-gency in the country. The farming commu-nity is in dire distress with cooperative banks

On November 10, two days after demone-tization was announced, a new entrant

to the payments bank sector was incorporat-ed. The outfit, Jio Payments Bank Ltd (JPBL),is a joint venture of Reliance Industries Ltdand State Bank of India. The company has received initial approval from the RBI tooperate.

The fact that Reliance Jio has tied up withSBI, the largest PSU bank, is considered sig-nificant. Many industry sources say that the

Jio joins the pack

SENSINGOPPORTUNITY

Chairman andManaging Director

of RIL, MukeshAmbani with PrimeMinister Narendra

Modi. RIL hasseized the chance

to launch Jio payments, in a

joint venture with SBI


UNI


cashless and non-functional, several small-scale sector units have had to shut shop andthe unorganized sector is in total disarray.Industrial production has plummeted anddaily wage earners have no source of employ-ment. There is chaos all around.

In fact, one question that looms large inmany minds is this: If the objective of demo-netization was not fighting black money butto only transform India into a cashless anddigital economy, then was it worth all thispain and suffering?

The government has not been forthcom-ing in providing answers. Instead, cabinetministers and party spokespersons havebeen spreading Modi’s gospel of a cashlesssociety across the country. Typically, Comm-erce Minister Nirmala Sitharaman describeddemonetization a digital detergent thatwould clean the economy. “This large, boldand historic initiative was taken by thePrime Minister keeping in mind the long-term economic future of India,” she said.Power minister Piyush Goyal describeddemonetization as “innovative disruption”while dismissing the criticism of two NobelLaureates—Amartya Sen and Paul Krugman—as views of people who “either do notunderstand the Indian psyche” or are “seizedby Modi-phobia”.

Professor Amartya Sen had described thegovernment’s demonetization move as a“despotic action that has struck at the root ofeconomy based on trust”. And Krugmanpointed out that demonetization “seems likea highly disruptive way to deal with theproblem of illicit hordes of cash, though it is

not clear what significant long terms gainswill come of it”.

HUGE TASKSo, what does one make of the march to-wards a cashless economy? Like the fightagainst black money, it too is a laudableobjective. But a shift from cash to a digitaleconomy cannot be achieved overnight. Itwill take a lot of doing for a 120-crore pluspopulation to embrace a new system oftransaction when close to 90 percent retailtransactions are currently in cash. In fact, itcould take several years even if the commit-tee set up under Niti Ayog’s chief executiveofficer Amitabh Kant takes on the task of“making India a cashless economy on a warfooting”.

The following factors point to the enor-mity of the task ahead:�In the US which has been encouraging dig-ital spending for decades, the cash compo-nent has only been increasing. A report inThe New Yorker magazine in April

newly incorporated company may be thelargest beneficiary of the government’scashless drive given the nationwide net-work of the SBI.

According to details submitted to theRegistrar of Companies, JPBL has sevendirectors on its board, including SBI’sdeputy managing director (CorporateStrategy and New Business) ManjuAgarwal. No date has been fixed for theformal launch of the bank but its entry isexpected to be a game-changer and a bigplus for the Reliance group.

Nobel laureateProfessor Amartya Sendescribed the government’s demonetization moveas a “despotic actionthat has struck at theroot of economybased on trust”.

Paul Krugman, also aNobel laureate, callsdemonetization “ahighly disruptive way”to deal with the problem of illicithordes of cash, anddoubts its long-term gains.

IL


quotes official figures and notes that in thelast two decades, US currency in circulationhas more than tripled to about $1.4 trillion,mostly in $100 bills. Given this, can Indiaturn cashless overnight? �The Indian spin that we are better poisedto go digital since the number of internetusers in India is higher than in the US is mis-leading. Figures quoted in the websiteIndiaspend note that with 34.2 crore inter-net users, we may have overtaken the US butthis impressive figure only represents 27-28percent of our population. This means that73 percent Indians have no internet access.Also, of the total 34.2 crore net users in thecountry, only 13 percent are in rural India. �India may have 102 crore mobile sub-scribers but only 17 percent adults havesmart phones which can download apps. So the task of turning India digital is stu-pendous.�Even the spread of banks is such that of the1.38 lakh branches, only 47,000 are in ruralIndia. The spread of ATMs is also skewedwith 90 percent in 16 states and a sizeablenumber in urban centers.

�A huge majority of the unlettered popula-tion do not trust banks and find it inconven-ient to operate accounts. One estimate is that80 percent of the population for all practicalpurposes are unbanked. �The push towards a digital economy willincrease cyber crime which India is notequipped to handle (see accompanyingstory).

The digital push will, no doubt, boost thebusiness of existing and newly formed (seebox) electronic financial payment compa-nies. Many of them have already begunreporting a huge spurt in business sincedemonetization and have begun to heavilyadvertise their services in the media. Butcould the drive towards a cashless economyhave been achieved without the pain of note-bandi? Economic commentator and editor,TN Ninan puts it rather succinctly: “Theseobjectives (establishing a digital economyand introducing tax reforms) could havebeen done independent of notebandi, which,at this stage, looks like a bad idea, badly exe-cuted on the basis of some half-bakednotions.”

CLUELESS COMMONERS

Cart pullers inDelhi waiting for

work in the aftermath of

demonetization


Anil Shakya

AS cash is in short supply postdemonetization, you use yourcredit/debit cards wherever youcan. It is nice to carry plasticmoney. But watch out for what

can happen. As you type in the details ofyour card while shopping online, beware. Asyou store passwords in your diary, beware.You love technology as it makes your life eas-ier, but beware of the hacker who is on theprowl in another part of the world watchingevery digital move you make.

Online payments are going to open uplucrative opportunities for cyber criminalswho will trick you into divulging sensitivebanking information before you figure outthat you have been tricked.

With a large illiterate population forcedto use credit and debit cards or even mobile

phones to transact business, the danger isreal. There are millions of new Jan Dhanaccounts, mostly held by those who cannotcomprehend what cyber crime can do totheir hard-earned money. And this is one ofthe biggest threats that India will face asthere is an almost maniacal hurry to go digi-tal without having constructed firewalls toprotect people.

SPOOFING BANKSThis was evident when news came in recent-ly that malicious phishing websites had beencreated by cyber criminals that could spoof26 Indian banks and in the process, stealyour banking information and siphon offyour money. These include top banks likeHDFC Bank, ICICI Bank, IDBI Bank andState Bank of India. Think of smaller banks.

DigitalDangersAs India attempts to go digital andcashless in a hurry, threats of cybercrime haunt banks, traders, customers and investorsBy Ramesh Menon


LEAD/DEMONETIZATION/CYBER CRIME

from your spoofed online banking page.Once criminals have this data, a page willpop up announcing that there has been anerror and you should therefore try after sometime. This often happens in online transac-tions. When you log in later, you could wellfind that you have been robbed off your cash.

Here is another alarming incident thatshould indicate what lies ahead. Cobalt, agroup of hackers, recently targeted ATMsacross Europe making them dispense hugeamounts of cash using malicious software.Such realities should make India realize thatwhile going digital might be a great idea, itshould not do it in a hurry without creatingthe necessary safeguards.

Just a few weeks back, major banks inIndia like SBI, HDFC Bank, ICICI Bank,Axis Bank and YES Bank blocked over 3.2

Think of cooperative banks in villages.FireEye, a cyber security firm from the

US, discovered a new domain called csecure-pay.com that was registered a couple ofmonths ago which served fake logins fromthe 26 banks. This should worry millions ofIndia. In its report, “2017 SecurityLandscape-Asia Pacific Edition”, FireEyeclaimed that ATMs, particularly in underde-veloped countries, were vulnerable as theycontinued to use old software which couldeasily be broken into by cyber criminals.

When you unsuspectingly navigate to theURL to get to your bank, you are gentlytaken to a page which looks like the one yourbank has. You are requested to enter thebank account number, pin, mobile number,email address and other details. As you dothis, malicious software copies crucial data


Illustrations: Anthony Lawrence

Saudi Arabia’s aviationagency was attacked lastmonth by an aggressivecomputer virus intended todisrupt high-profile govern-ment targets, officials andexperts said. The attackreportedly emanated fromoutside the country, andused a version of Sha-moon, malware used to tar-get the Saudi energy sectorfour years ago. The Saudigovernment confirmed thelatest breaches, reports The New York Times.

Cyberattacks strikeSaudi Arabia

million debit cards that were compromisedby cyber criminals. It was one of the biggestbreaches in the financial sector in India.There is reason to fear.

SUPREME COURT MOVEAs there has been a huge surge of cybercrime, the Supreme Court recently asked thecenter if it was contemplating setting upexclusive cells to probe such crimes. It was shocked at the circulation of rape videoson social media by criminals. With the government failing to come up with ananswer, a bench of Justices Madan B Lokurand UU Lalit pointed out that no action had been taken in the last one year though the government had said it wasworking on it. The Court had taken suo motu cognizance of the growing number of cyber crimes in the country after Prajwala,a Hyderabad-based NGO, had written to theChief Justice of India about numerous rape

videos being circulatedthrough WhatsApp. It haddirected the CBI to investi-gate all the cases.

After numerous banksworldwide were cheated bycyber criminals, theReserve Bank of India ear-lier this year asked banksto step up the vigil againstcyber crimes and work outa security policy. Banksshould also have a systemto exchange informationwith other banks anddevelop a quick responsesystem to deal withincreasing cyber crime,financial fraud and datatheft.

The RBI missive cameafter a heist in aBangladeshi bank earlythis year when cyber thie-

ves issued instructions to transfer $951 mil-lion out of a Bangladesh bank’s account atthe New York Federal Reserve. Fortunately,most of them were declined. But an amountof $81 million was transferred to a bank in the Philippines. It was never found. It naturally shook up the international ban-king community.

While numerous small Indian entrepre-neurs are quickly trying to switch to digitaltechnology to manage payments, it hasopened a new window of opportunity forcyber criminals. We have seen how they can swiftly and effectively operate fraudulentmonetary transfers and do counterfeiting of credit and debit cards. India with its huge population will definitely be on theirradar. It will be easier for them as India will have more mobile phones than mostother countries.

Firms that have anything to do withfinancial services will now have to build robust cyber risk management programs to achieve invincible security. They have no option but to do this as soon as they can. Cyber thieves have alreadydemonstrated how dangerous they can be.You might just be their next victim. IL


In its report, “2017 Security Landscape-Asia PacificEdition”, FireEye claimed that ATMs, particularly in

underdeveloped countries, were vulnerable as they used old software.

LEAD/DEMONETIZATION/CYBER CRIME

THE traditional salesman’spitch goes like this: Theworld runs on that onesalesman selling some-thing somewhere. Whenthat stops, the world stops.In the north-eastern dis-

tricts of West Bengal, namely SouthDinajpur, Nadia, Malda, 24 Parganas(North) and others, something like this hashappened following Prime MinisterNarendra Modi’s announcement of banning

Waiting toExplode

`500 and `1,000 currency notes onNovember 8. The entire economy of the areavirtually vanished into thin air. Nobody wasselling, no one was buying.

Sure the entire nation is reeling under aterrible cash crunch—as it should when 86percent of the currency in circulation issucked out through a hastily formulated andpoorly implemented policy change—butthese districts near the Bangladesh bordernow exist in a virtual vacuum.

The economy of these districts of farmers

THE CASH CRASHPeople queue up at a

bank in Barasat, North24 Parganas


Note crunch in the wake of demonetizationhas hit the economy inthe border districts ofWest Bengal. How willthe resulting public furybe contained? By Sujit Bhar

LEAD/DEMONETIZATION/ECONOMY

rests on a few “verticals”. Farming is possiblythe only legal one—mangoes from Maldawere once the much awaited summer delica-cy of all of Bengal, a leading export item thathas seen a massive dip in the recent past.

Malda and its adjoining districts pro-duced five lakh tons of the fruit per year,almost five percent of the national output.But an advisory from India’s Agricultural &Processed Food Products ExportDevelopment Authority (APEDA) earlierthis year said that the Ministry of ClimateChange & Environment of the UAE wasalarmed at the high level of pesticide foundin fruits and vegetables imported from India.This effectively shut out the mango exportmarket to the UAE, where almost 70 percentof Indian mangoes used to be shipped. Thiswas the second blow after eastern Europeancountries banned such exports for similarreasons last year, before revoking the banlater. By then, Indian mango exports haddipped from 63,500 tons in 2011-12 to43,000 tons in 2014-15.

The other “verticals” exist in the shadows.They are: human trafficking into India; cat-tle smuggling out of India; the growing, pro-cessing and sale of heroin, and the huge“cash” inflow to fund terrorist sleeper cells.The National Investigation Agency (NIA)has found this area to have the maximumnumber of such sleeper cells in the country.

How have such criminal activities sur-

vived and even thrived in these areas? Thereason has been a lack of political will, some-thing that has denied the requirement toform the required logistics of checks and bal-ances for long.

It started as simple vote bank politics.These have been the areas where infiltrationfrom Bangladesh has been rampant, the bor-der being extremely porous. Unofficial esti-mates put this at over 650 people per day.

The interesting part is that many of thosewho walked in from across the border wouldbe immediately welcomed by political par-ties—the Left Front during its rule and theTrinamool Congress (TMC) thereafter—whonot only provided them official identitypapers, such as Aadhaar Cards, voter IDs,etc., but also turned a blind eye when someeven got to “buy” land, according to a seniorpolice officer. Of course, these land deals arefake, too, because there isn’t any land left inthose areas to sell promptly to one who wasa “foreigner” maybe a week before.

Therein lies the catch. Much of the esti-mated `400 crore Fake Indian Currency


Much of the estimated `400 crore FICN incirculation in India sloshes around in the border districts because this is the mainpoint through which it enters the country.

SITTING ON A VOLCANOScenes from the Kaliachakriots that shook Malda onJanuary 3

Youtube

hundreds of cattle are driven across the bor-der, with the BSF unable to open fire becauseof “friendly neighbor” restrictions. This hascome down with the center’s stringent cowprotection policy, hitting the Bangladeshbeef industry hard.

It had been estimated that about two mil-lion heads of cattle used to be smuggled outeach year, amounting to a staggering $600million-a-year underground “trade”.

This “black” economy had a large FICNcomponent, too. Much of this money wouldslip through the system’s loopholes to theterrorist sleeper cells. The rest went tounsuspecting farmers, villagers, tribesmenand others. With banks few and far between,such activity flourished unhindered anduncontrolled.

Black wealth was generated, siphoned offby the criminally minded within politicalparties and not till they reached the banks(which was rare) did they face any real hur-dle. People went about their “work”, growingpoppy on paddy fields, acting as “mules” tofreshly-minted FICN that had just arrivedfrom across the border, earning a decent“commission”, and sometimes, delving in abit of agriculture and also politics.

It has been estimated that in these dis-

Notes (FICN) in circulation in India sloshesaround in this region, simply because this isthe main transit point for almost all FICN that enters the country (printedillegally in Pakistan and those printed illegally in Bangladesh). Much of all such illegal transactions happen in FICN,mostly unknown to the dealers in these cur-rency notes.

This is true for the reverse traffic thathappens across the border, too: that of illegalcattle smuggling. In the dark of the night


Mamata Banerjeeis seeking

opportunity indemonetization

which couldplunge the state in a deep crisis.

With large parts ofthe state waitingto explode, she

has much toworry about.

PARTY ON!Government doles to

“registered” pujas to appease Trinamool

workers have dried up

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LEAD/DEMONETIZATION/ECONOMY

IL

The economy ofthe border districts has been reduced to avacuum with `500and `1,000 legaltenders beingbanned. Fake currency that hadentered even villagers’ homes isnow useless.

tricts, quite like in the rest of India, over 80percent of all transactions were in cash. But,unlike the rest of India, nearly 40-45 percentof those cash transactions were in FICN.And `500 and `1,000 currency notes formedmost of it. The situation post demonetizationis critical.

Here are some of the possible scenarios: 1. Scenario today: Poppy growers hadclashed with the police in the Kaliachak area of Malda on January 3 this year. Initial communal flare-up reports were dis-missed by the intelligence bureau, as well asby chief minister Mamata Banerjee, andrightly so, because it was later found that thepolice had accompanied some excise officialsand destroyed a large portion of the poppycrop. This was a no-no as per an unwrittenagreement between the lawkeepers and thepoppy growing mafioso. The mafia, there-fore, wanted to teach the police a lesson.Akhil Bharat Hindu Mahasabha leaderKamlesh Tiwari had, on December 3 lastyear, allegedly insulted the ProphetMuhammad at a Lucknow rally, and this was used by the mafioso to draw in commu-nal sentiments.

Future scenario: This time, the mafiosocrops will not sell. There is no money. Andthere is little that the law enforcementmachinery can do to contain public (readmafioso) fury if it erupts. 2. Scenario today: Cattle smuggling yielded


a huge “black” surplus within the local socie-ty, and a large portion of that slipped quietlyinto illegal cartels, as well as into someundisclosed political coffers. It was enoughto fund social “peace” and stem disquiet that was festering in an employ-ment vacuum.

Future scenario: This social “securitybank” and political funding bank has disap-peared. Quite like in the cities, where the“syndicates” siphoned money out of realestate ventures and where the ruling TMCdoled cash for locality pujas, a lot of thismoney was redistributed to realize the polit-ical ambitions of the rulers. A huge law andorder chaos looms on the horizon. Also,there being a ban on legal cattle exports, ahuge inventory will build up in the region,needing tending to and controlling.3. Current scenario: FICN has, through theyears, entered the farmer’s homes, into hissmall savings in cash, his insurance againstrainy days and for small seed, fertilizer andpesticide purchases, his medical bills. Thiswent hunky dory for so long.

Future scenario: Now, when the farmergoes to revive his Jan Dhan Yojana accountand deposit those currency notes, he will bein for a shock when the banks declare themas FICN. There is absolutely no social safetynet to help the farmers survive this tragedy.

The region is waiting to explode, and nofire tenders are in sight. Mamata Banerjeehas a lot to worry about as she sets her sightson New Delhi.

20%80%

46%

Cash transactions 80%

Fake currencytransactions 46% (of 80%)

Transactionby banks 20%

No Currency!The economy of Bengal’s border districts today

WITHERING BUSINESSPesticides robbed Malda mangoes of their biggestmarket, the UAE, where almost 70 percent of theIndian produce would be shipped

This Himalayan kingdom too is facing acash crunch which has affected trade,

tourism and pilgrimages to IndiaBy Ramesh Menon in Thimpu

Rocky Road Ahead

BHUTAN, India’s neighbor, isclearly feeling the pinch ofdemonetization. A serious cashcrunch has already affectedborder trade. India is Bhutan’s

largest trading partner and a free traderegime exists between both the countries.Indian currency is legal tender in Bhutanand this Himalayan kingdom is a major re-cipient of Indian aid and gets around `5,490crore annually. India also exports electricity,cement, iron dolomite, gypsum, ferro-alloysand oranges to Bhutan.

Demonetization has affected farmers inPhuentsholing, a town bordering India, and


LEAD/DEMONETIZATION/BHUTAN

they are struggling to sell potato and car-damom stocks to Indian traders who are fin-ding it difficult to make cash payments. Af-ter demonetization, cardamom prices fellfrom 900 Ngultrums a kg to 700 Ngultrums(one Ngultrum is equivalent to an Indianrupee). The unofficial exchange value of `100 has now become about 130 Ngulturmsin the black market. There have been re-ports of border villages in Assam now usingBhutanese currency so that trade does notcome to a standstill. They fervently hopethat in the next few months, they will beable to cash the Ngultrums in return forIndian currency.

TRADING PARTNERSources told India Legal that India shouldhave made some alternative arrangementsto send in new currency notes to Bhutan asit is a major trading partner and is whollydependent on India. Prime Minister Naren-

DIFFICULT DAYSShops in Paro,

Bhutan. The cashcrunch has seriously

affected business

Ramesh Menon

dra Modi has always stressed on his “Neigh-borhood First” policy and said that ties withneighboring countries would be his first pri-ority and this would be the cornerstone ofIndia’s foreign policy.

The Bhutanese Central Bank has directedbanks to freeze withdrawals of Ngultrums byBhutanese individuals and companies in ex-change for demonetized Indian currency of`1,000 and `500.

Marketing advisor Bhim Raj Gurung ofthe Food Corporation of Bhutan said thatdemonetization of Indian currency has badlyimpacted both the Bhutanese farmers andthe Corporation.

Potato exports from Bhutan to India havealso been seriously hit. According to reports,there are more than 1,000 metric tons of po-tatoes waiting to be sold. Hit by the cashcrunch, Indian traders have not been able tobuy it. Many farmers grow only potatoes asthey have been accustomed to deal with thiscash crop. The prices of potatoes have drop-ped from 50 Ngultrums to 23 Ngultrumsdue to the cash crisis.

Also, a substantial amount of businessbetween Bhutan and India was earlier main-ly through the barter system. But in recenttimes, many small traders come in and dobusiness using cash. They have now beenseriously affected. Shopkeepers in Thimpusay that their cash flows have considerablyreduced as they depend a lot on Indiantourists who have stopped coming. SanjeevMehta, an economics professor at the RoyalThimpu College, feels that if the tourism andreal estate sectors are hit due to demonetiza-tion, the GDR rate would dip in Bhutan.

NO PILGRIMS’ PROGRESSDemonetization has also affected pilgrim-ages to India. At this time of the year, manyBhutanese usually go on a pilgrimage toIndia as the harvesting season is over. Theyusually visit Buddhist monasteries inSikkim, Varanasi, Bodhgaya, Kushinagarand Sarnath. They are now desperately ask-ing Indian tourists to give them rupees asthey are unable to garner enough funds fortheir pilgrimage. Sonam Tshering, whoworks with the Bhutan BroadcastingService, was requesting every Indian he met

for some Indian currency as his parents werescheduled to go to Bodhgaya in mid-December. With great difficulty, he managedto get `10,000, but it was not enough for afortnight-long visit to India and back.Dechen Zam, a receptionist at NamgayHeritage Hotel here, said: “I have persuadedmy parents to cancel their pilgrimage toIndia as I have not been able to gatherenough Indian currency for them."

The Royal Monetary Authority (RMA) ofBhutan, the country’s Central Bank, used toearlier issue `15,000 per person every monthbefore demonetization changed the rules. Itreduced it to `10,000 per person per monthand then to `5,000. But even this small am-ount is distributed to only 50 people everyday through a lucky dip. Many Bhutanesetravel from all over the country to Thimpu toget this amount as Indian currency can onlybe procured at this bank. The RMA has alsoasked Bhutanese to avoid travelling on a pil-grimage this year. But for faithful Buddhists,this is not a solution.

Bhutan’s Economic Affairs Minister Le-key Dorji said that Bhutan was in regular to-uch with the Reserve Bank of India on theneed to replenish `100 notes to tide over thecurrent crisis. In an interview to BusinessBhutan, a Thimpu-based weekly, he said thatBhutanese need to be vigilant about beingused by Indian agents in the exchange ofdemonetized notes.

It looks like a long haul ahead.


Sources in Bhutansaid India shouldhave made somealternativearrangements tosend in new currency notes tothe country as it isa major tradingpartner and iswholly dependenton India.

TRADE CRISISPotato exports from Bhutan to India have also been hit due to demonetization

IL

Former Union Carbidechairman WarrenAnderson escaped theclutches of law for theBhopal gas tragedy. Butthe then collector andSP are in legal troublefor letting him goBy Rakesh Dixit in Bhopal

In the Dock forAnderson’s

Bolting

IT will always remain a mysteryas to who facilitated the breezyescape of then Union CarbideCorporation Limited (UCCL)chairman Warren Anderson, themain accused in the Bhopal gastragedy, out of India 32 years

ago. However, it was never a mystery as towho executed the order. On December 7,1984, it was then Bhopal collector MotiSingh and Superintendent of Police SwarajPuri who had escorted him in their officialcars to Bhopal airport. Anderson flew in aMadhya Pradesh government plane to Delhiand subsequently, flew off to the US the


STATES

UNENDING WAIT(Left and above) Women survivors of the gasleak demand justice for their sufferings; theiconic photograph of a child who died in thetragedy, by Pablo Bartholomew

Wikimedia/obi

same evening. Now the officers, long retired,are in legal trouble.

Alower court in Bhopal has summonedthem on January 13, 2017, to explainwhy they should not be prosecuted

for helping Anderson escape. The UCCLchairman never returned to India and allattempts by the CBI to extradite him to faceIndian courts for the world’s worst industrialdisaster proved futile. The disaster, causedby the sudden release of 40 tons of toxicmethyl isocyanide gas from the defunctUnion Carbide factory on December 3, 1984,killed over 3,000 and maimed over five lakh.

Anderson, who landed in Bhopal fourdays after the gas leak, was arrested and keptin a guest house. After a few hours in captiv-ity, he was mysteriously released on “anorder from someone higher up”. The nextday he flew back to the US and managed tosecure bail from the police. It was allegedthat he had access to a landline phone wherehe was detained and used his contacts. Heremained a proclaimed absconder till hisdeath at a nursing home in Vero Beach,Florida, on September 29, 2014, at the age of91. His ghost has now returned to hauntthose who helped him escape.

It was on November 19 this year thatBhopal’s chief judicial magistrate (CJM)Bhubhaskar Yadav passed an order that MotiSingh and Swaraj Puri should be bookedunder Sections 212 (harboring an offender),217 (public servant disobeying direction oflaw with intent to save a person from pun-ishment) and 221 (intentional omission toapprehend on the part of the public servantbound to apprehend) of the IPC. The CJMhad summoned them on December 8.However, as the judge was indisposed, thenext date for summons has been fixed onJanuary 13.

“Prima facie it is evident that thousandsof people were dying in Bhopal due to leak-age of poisonous gases and the heads of thedistrict, the collector and the SP, were usingall their expertise and system to help a crim-inal escape rather than helping the victims,”the judge said on November 19. He said theofficers helped the main accused escapewithout the approval of the court and despite

his being booked under a non-bailable section (304—culpable homicide notamounting to murder).

The order came on a petition filed byAbdul Jabbar, an activist of theBhopal Gas Peedit Mahila Udyog

Sanghthan, in 2010. He did so in the wake ofa national uproar then over the light sen-tence given to the accused by the BhopalCJM’s court. Seven accused were sentencedto two years in prison and fined `1,00,000each. The accused were prosecuted underSections 304-A, 336, 337 and 338 (all relat-ed to deaths caused by negligence). Victims’groups and activists who had sought moreserious charges criticized the verdict andsaid death by negligence is most frequentlyused when it involves car accidents and car-ries a maximum two-year sentence.

The CBI, the Madhya Pradesh govern-ment and the NGOs working for the sur-vivors had filed criminal revision petitionsagainst the judgment before the SessionsCourt, Bhopal, which rejected the pleas onAugust 28, 2012. Interestingly, the ex-offi-cers’ own statements in the media and vari-ous panels that probed Anderson’s escapewere cited by the judge as evidence against them.

In his book, Bhopal Gas Trasadi ka Sach(The Truth of Bhopal Gas Tragedy, 2009),Moti Singh wrote: “Anderson did not appearsatisfied and kept on saying that he want-


Union CarbideCorporation Limitedchairman WarrenAnderson, who landedin Bhopal four daysafter the gas leak, wasarrested and kept in aguest house. After afew hours in captivity,he was mysteriouslyreleased on “an order from someonehigher up”.

Bhopal court order in 2010. The Shivraj Singh government is in a

dilemma over the court order on registrationof FIRs against Moti Singh and Puri. Afterall, it was the Justice Kochar Commission,instituted by the state government, whichhad given a clean chit to the officers. Thoughthe report was submitted to the state govern-ment in February last year, it is yet to betabled in the assembly. Sources said that asper the Commission’s report Moti andSwaraj followed instructions of their seniors.

The report states that then prime minis-ter Rajiv Gandhi and then home ministerNarasimha Rao had verbally ordered theUnion cabinet secretary to ensure the releaseof Anderson. The cabinet secretary passedon the orders to Madhya Pradesh chief secre-tary Brahma Swaroop and, subsequently, theHanumanganj police station was ordered toallow Anderson to walk free. Several reportshave suggested that Gandhi was pressuredby the US to let Anderson go.

Senior Congress leader Arjun Singh, whowas then chief minister of MP, wrote in hisautobiography A Grain of Sand in theHourglass of Time that home secretary RDPradhan had called him “on the instructionsof then Union home minister PV NarasimhaRao”. Pradhan denied the allegation, sayinghe was chief secretary of Maharashtra at thetime and became Union home secretary onlyin January 1985.

The truth will never be known.

ed to look at the scenario here (Bhopal) andto meet with the chief minister.” He added:“Despite being told that there was hugeresentment among people and it was notpossible for him to visit anywhere, he(Anderson) kept on evading the proposal toleave for Delhi. He agreed to leave Bhopalonly after a discussion of 1.5-2 hours andonly then signed the bail document.”

Moti Singh also wrote that Andersonmanaged to get away by using a phone in theroom where he was detained. “Had weremoved the landline phone from his room,Anderson would not have escaped. He possi-bly made calls to contacts in the US to helphim leave India.” The US embassy reported-ly mounted pressure on the Indian govern-ment, which released Anderson on a person-al bond of `25,000.

Meanwhile, Swaraj Puri told theUnion Carbide Toxic Gas LeakageEnquiry Commission (also known

as the Justice KL Kochar Commission): “Wearrested him on the basis of a written orderbut released him on an oral order”, which hesaid came “from higher-ups”. Puri wassacked in September 2006 when a case wasfiled against him for using an NRI quota forhis son’s admission to a college in Indore.After retirement, he was appointed as amember of Complaint Regulatory body ofthe Narmada Valley Development Tribunal,but was removed from there also after the


IL

Ex-Superintendent ofPolice Swaraj PuriHe told the UnionCarbide ToxicGas Leakage EnquiryCommission thatAnderson was arrested on the basis of a writtenorder but released on an oral order that came “from higher-ups”.

Abdul Jabbar ofBhopal Gas PeeditMahila UdyogSangathan He filed a plea in2010 in the wake of a national uproar over thelight sentencegiven to theaccused by the Bhopal CJM’s court.

STATES


STATES

WITH less than a yearto go for assemblyelections, the rulingBJP in Gujarat is aworried lot. Gone isthe bravado and blus-ter that led to the ali-

enation of almost all major caste configura-tions in the two years after Narendra Modileft for Delhi. Instead, anti-BJP groups haveunited to take on the Gujarat governmentwhich has literally been lurching from onestir to another.

It was in November that a new caste con-

figuration emerged in the state. A joint rallyof OBCs and Dalits with support from thePatels marked the emergence of a new polit-ical axis in Gujarat. Muslims had alreadyannounced their support to the Dalits.Heading these caste configurations is a newyouth leadership which is not in awe ofestablished political parties.

These leaders are: Alkesh Thakore who isspearheading the OBC-Dalit campaign un-der the aegis of the Ekta Manch, Jignesh Me-wani who is coordinating the Dalit offensiveand of course, Hardik Patel of the PatidarAnamat Andolan Samiti (PAAS). The

Gujarat: BJP Blunders OnA new political axis has emerged in this state as OBCs, Dalits,Muslims and Patidars join hands to take on a government that seems to lurch from stir to stirBy RK Misra in Gandhinagar

A POTENT THREATHardik Patel beingwelcomed by supporters on arrival at his hometownViramgam, after hisrelease from LajporeCentral Jail in Surat, this year

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OBC-Dalit rally had all three voicing theirsupport for the stir.

GROWING STIRRealizing that a mere change of chief minis-ter—from Anandiben Patel to Vijay Ru-pani—may not be enough, the governmentearlier this month opened a line of commu-nication with Hardik Patel. Predictably, theopening round of talks between the two par-ties failed with the warring Patels threaten-ing to restart their stir. However, the secondround on December 8 saw the PAAS delega-tion handing over various documents to back

their claims that many states had implemen-ted more than 49 percent reservations des-pite a Supreme Court order.

“Where there is a will, there is a way. Theconstitution provides for 50 percent reser-vation of which 27 percent is reserved forOBCs. Our demand all along has been thatwe should be included in the OBCs,” saidHardik to India Legal. The PAAS convenermade it clear that the Patels would resumetheir agitation if they found the governmentlacking in sincerity.

PAAS has been demanding reservationsfor Patidars in government jobs and educa-tional institutions, setting up of a statutorycommission on the lines of the OBC commis-sion for redressal of their grievances, with-drawal of all cases against Patidar leadersand initiating penal action against policeofficers responsible for atrocities perpetratedon them during the agitation. PAAS is alsodemanding a compensation of `35 lakh tothe next of kin of all those who lost their livesduring the stir and a government job for atleast one person from each of these families.

The Patidar stir, which started in July2015, took 14 lives. PAAS activists, includingPatel, were arrested and charged with sedi-tion. Others were subsequently bailed out.Hardik was given bail on the condition thathe would leave Gujarat. He has since beenstaying in Udaipur, though he has been per-mitted to shift to Uttarakhand.

Deputy chief minister Nitin Patel said:“The government is bound by the ambit ofconstitutional provisions and will discusswith all concerned stakeholders to find anamicable solution.” A panel of ministers hasalready been set up for the purpose and he isheading it.

CAUGHT IN A BINDHardik’s demand for the inclusion ofPatidars among OBCs is a treacherous mine-field for the government. The OBCs, led byAlpesh Thakore, have already made it clearthat they will not tolerate any dilution of thequantum of their reservation and have beenmuscle-flexing.

Ironically, the issue chosen by them isliquor prohibition. Though Gujarat has been“dry” since its birth, its present lax prohibi-

STATES

For over 16 months now, many social andcaste groups have been agitating against theGujarat government. This includes the Patels,

SC/STs, OBCs as well as the Dalits.

NEW POLITICAL AXIS(Clockwise from belowleft) Jignesh Mewani is

coordinating the Dalitoffensive against theGujarat government;

Alkesh Thakore is heading the OBC-Dalitcampaign; supportersof Hardik Patel waiting

for his release fromLajpore jail

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tion policy has become a magnet for anti-BJP groups to take on the government.Though touted as dry, Gujarat is as wet as awatermelon. Thakore has been organizing aseries of public meetings across the statepointing to the ruinous effects of drinkingand has administered an oath to his follow-ers to shun liquor. He has been demanding aBihar-like strict anti-liquor law. However,they intend to intensify their agitation fromJanuary next year by taking out awarenessmarches through 112 of the 182 Vidhan Sa-bha constituencies. Clearly, elections are alsoplaying on their minds.

Such a show of force would normally haveraised the hackles of the BJP governmentheaded by Rupani. But, realizing the poten-tial for damage that these groups can do, thegovernment immediately asked senior cabi-net minister Bhupendrasinh Chudasama topromise that the government would seek le-gal opinion and if need be, table a new bill inthe ensuing assembly session to tighten pro-hibition laws. This was a departure from theearlier haughty approach of the governmentwhen glorifying the Gujarat model.

ON THE WARPATHFor over 16 months now, numerous socialand caste groups have been agitating stri-dently against the government. While thePatels are demanding reservation in jobs andeducation under the OBC quota, SC/STs andOBCs are on the warpath against any changein this policy. Dalits have already taken upcudgels against the government after cowvigilantes lynched four of them for skinninga dead cow. And now, the prohibition policyis another weapon in their armory.

Though the opposition Congress is yet toget its act together and the Aam Admi Partyis still desperately trying to stitch up somesemblance of a presence in Gujarat, thiscaste grouping is clearly giving the rulingBJP here anxious moments.

The history of communal conflict in Guj-arat is replete with instances of Dalits bac-ked by majoritarian caste groups being atstrife with the minority community. How-ever, this traditional alignment has under-gone a drastic change in the last 16 months,more so after the Dalit lynchings in Somnath

district which led to a statewide Dalit outcryand forced a change of guard with Anan-diben being replaced by Rupani. Muslims,who were at the receiving end of cow protec-tion vigilantes, immediately rallied to the su-pport of Dalits with OBCs joining the axisand the Patidar leadership also announcingits support. The clock seems to have comefull circle against the ruling BJP which de-rives its strength from propagation of majo-ritarian politics.

With the prohibition issue now becominga millstone around the BJP government’sneck, efforts to sow dissension among themhave come a cropper. The agitation has virtu-ally brought the BJP government to itsknees. This was quite a change from its ear-lier stand where it did everything to subju-gate the leaders. Hardik was kept in jail foran extended period, with sedition chargesalso slapped against him and others. He waseven forced out of Gujarat on court orders.

But the BJP has had to eat crow now. ThePatidars were the backbone of the BJP. Notonly will a dent in this vote bank cause a set-back to the party, any likelihood of the threecastes making common cause would spelldisaster for it in the 2017 polls. This couldplay havoc with the BJP’s chances of return-ing to power at the center in the 2019 gener-al elections.

Not only will a dent in the Patidar vote bankcause a setback for the BJP, but if other castesmake common cause it would spell disasterfor it in the 2017 assembly polls.

CRISIS MANAGERS(Clockwise from left)Former CM AnandibenPatel, present CM VijayRupani and Deputy CMNitin Patel

POLITICS

IT is often said that UP is Indiaand India is UP. It is also saidthat the road to Raisina Hill isthrough Lucknow. With assem-bly polls early next year, it will, nodoubt, be a Kurukshetra as thestakes are high for all parties, be

it the ruling Samajwadi Party, the BJP, BSPsupremo Mayawati, the Congress and otherstakeholders. Over the past 25 years, the SPand the BSP have been alternating in UP.

It is clear that this will be a multi-cor-nered contest as there are no significantpolitical realignments. Even as parties werepreparing for the coming battle, PrimeMinister Narendra Modi in one stroke

As this crucial state goes to the polls next year, political parties gearup for a royal fight in the face of demonetization, caste polarizationand law and order problemsBy Kalyani Shankar

UP’s Modern Kurukshetra

changed the election scenario not only in UPbut in other poll-bound states such asPunjab, Manipur, Goa and Uttarakhand byhis demonetization move.

The first response from the oppositionwas that Modi wanted to wipe out the cashreserves of his opponents. The presumptionwas that the BJP would have secured its ownfunds much before the demonetizationmove. Whether this is true or not, the poll campaign of other parties has beenadversely hit.

SWINGING FORTUNES In the 2012 elections, of the 403 seats, theSP swept 224 and 29.29 percent of the vote


Photos: UNI

share. The BSP bagged 61 seats with 25. 91percent votes, while the BJP won 47 seatswith 15.21 percent. The RLD, which haspockets of influence in western UP, won nineseats, while the Congress won 28 seats with13.27 percent vote share.

In the 2014 LS polls, things changed dra-matically. Riding on the Modi wave, the BJPmade a stunning comeback winning 71 ofthe 80 seats and 42.3 percent vote share,decimating the SP and the BSP. The SP wonfive seats with 22.2 percent share, theCongress two seats with 7.5 percent voteshare, while the BSP didn’t even open itsaccount despite a 19.6 percent voteshare.

The fight next year in UP will be intenseand more so for the BJP. If Modi wants towin the 2019 general polls, the BJP shouldensure the continuation of his magic. After1991, the BJP has not come to power on itsown strength. A win in the 2017 assemblypolls will prove that the 2014 win was nofluke. It will also give more clout to the BJPin presidential elections due in July 2017.The BJP is in an advantageous position asthe opposition is not united either at thenational or the state level. The SP haddeclined to join an attempted GrandAlliance on the model of the Bihar experi-ment in UP.

BJP’S GAINSThe BJP thinks it has a lot going for it in UP.At the top of the list is the demonetizationdrive against black money and the surgicalstrike on Pakistan in September. A win in UPwill also give it an upper hand in the RajyaSabha where it can push through its eco-nomic reforms agenda. For a win, the BJP isbanking on its core voters—upper castes andBanias. It is also hoping to add votes fromMost Backward Castes (MBCs) and someDalits. And the best bet for the party in thisregard is polarization along communal lines.

On the minus side, Modi is riding a

MAKING A PITCH(Clockwise from below) BJP national president Amit Shah and others inMaharajganj; Congressvice-president RahulGandhi, Sheila Dixit and RajBabbar in Lucknow; ChiefMinister Akhilesh Yadav at arath yatra in Lucknow;Samajwadi Party supremoMulayam Singh Yadav withUP party president ShivpalSingh Yadav and others in Ghazipur


prominent MBC leader from the BSP, andCongress leader Rita Bahuguna, a high-pro-file Brahmin leader. Appointing KeshavPrasad Maurya as the state party chief was also a move to consolidate MBC supportagainst Yadav dominance.

DEMONETIZATION MOVE Topping the list of election issues is deterio-rating law and order, followed by corruption.In this regard, Modi’s demonetization moveis significant. According to BJP leaders, thiswill be the party’s key theme in its publicityblitzkrieg while the opposition may use it asa key poll plank to highlight the sufferings ofthe common man.

Other issues include price rise and infla-tion and national security showcasing thesurgical strike. Ayodhya too remains a sensi-tive issue for the BJP. BJP leader DrSubramanian Swamy reportedly said: “TheRam (temple) issue is part of our 2014 man-ifesto, how can we run away from it? Wehave to deliver.” The Congress party too istrying to play a soft Hindutva card withRahul Gandhi visiting Ayodhya some timeago. The BJP has already laid the foundationfor issues like triple talaq and the commoncivil code.

However, what counts most in UP is thecaste factor. While the BSP succeeded in2007 in forming a rainbow coalition ofupper castes, Dalits and Muslims, it could

tiger as the cash-crunch has started to pinchthe common man and the BJP’s core vot-ers—businessmen, traders and rural voters—who supported Modi in the 2014 polls.Added to that the fact that farmers are alsofacing a fiscal crisis during the rabi season.

Also, the BJP lacks local leaders ofstature, which is why it has not announced achief ministerial candidate. Although thenames of Union ministers Rajnath Singh,Smriti Irani, Mahesh Sharma and VarunGandhi are doing the rounds, the party has consciously not projected anyone.Rajnath Singh is not interested while theothers are keen. As part of a well-laid-outplan to get leaders from outside, the BJPrecently roped in Swami Prasad Maurya, a

INTO THE BJP FOLD(L-R) Swami Prasad

Maurya andRita Bhauguna Joshi

The Congress’poll strategist,

Prashant Kishore(right) has advised

the party thatunless the

Brahmins comeback, other

castes would not look at it.

POLITICS


IL

Thanks to demonetization, itis struggling to match thecampaign of others.

The party has lost its corevoters, including uppercastes, Muslims and Dalitsand has no credible second-rung leaders. That was whyit had to bring in formerDelhi chief minister SheilaDixit as its chief ministerialcandidate but she is seen as aspent force. Its poll strate-gist, Prashant Kishore, hasadvised the party that unlessthe Brahmins come back,other castes would not lookat the Congress. Kishore,who was in Modi’s poll teamin 2014, has rubbed manysenior leaders the wrong wayand they want him out. He and his team havereportedly even been told tokeep away from theCongress’ 50-day “Shiksha,Suraksha, Swabhiman” cam-paign where it will reach outto Dalits in some 3,000 vil-lages. The Congress will playup the deleterious effects ofdemonetization as its mainpoll plank, along with poorlaw and order. It has not been able to forman alliance along the Bihar model with non-BJP parties.

If polls were held today, the fight for thenumber one position would be between theBSP and the BJP. The SP could slide to thirdposition and the Congress, fourth. However,there is no knowing how voters will react.The present cash-crunch could turn intopublic anger.

UP will be a litmus test for all parties.And the results of national and local elections are often quite different. In 2009,the Congress did well in the national elec-tions, but in 2012, it failed to convert it intoa state victory. In the 2014 general elections,the BJP did spectacularly well. Will it trans-late into victory in 2017? A million-dollarquestion.

not sustain it. This party is again looking atthe same coalition for the coming polls. TheMBCs had backed Mayawati in 2007 butshe rewarded the Brahmins by giving themplum posts.

MUSLIM VOTESAs for the SP, in 2012, the MBCs backedMulayam Singh, but credit for the victorywent to the Muslims. The BSP and the SPhad also attempted to coalesce Dalits andOBCs in the nineties but it was short-lived.The alliance of Muslims with some domi-nant OBCs remains contingent on politicaltactics. The SP is now depending on its corevote base of Muslims plus Yadav votes. It is,however, on a weak ground with this minor-ity community due to various incidentswhich occurred during its regime. Also, theugly feud in Mulayam Singh’s own family isdamaging the party. His son, Chief MinisterAkhilesh Yadav is youthful and driven, but his own party, father and uncles haveundermined him although he has come outwith a better image. The real fight will be at the time of ticket distribution.

Coming back to Mayawati, she has been quietly working hard to make a comeback. She plans to go solo and is counting on a Dalit-Muslim consolidation.Demonetization has hit her party the hard-est because Mayawati deals in cash and thefunding is mainly crowd-sourced. In 2014, the BSP had submitted to the ElectionCommission that it had not received a singledonation above `20,000. (Donations abovethis figure need to be declared.) The BSP hasbeen weakened in recent times and she is now left with Satish Mishra andNaseemuddin Siddiqui as seniors. In someways, a Congress-BSP alliance would makea lot of political sense but Mayawati is shun-ning it.

The Congress is also fighting for survivalas it faces a leadership crisis and suffers fromlow morale. The party has been in thewilderness for more than 25 years in UP andis practically non-existent there. It is banking on the dynasty and the anti-incum-bency factor to get seats. It is difficult for it torecover from its downward spiral, irrespec-tive of whether Priyanka Gandhi campaigns.


2012 Assembly elections

2014 Lok Sabha elections

29.29%

SP224

25.91%

15.21%

13.27%

403 seats

80 seats

BSP

BJP

16.32%

RLD +

Others

Congress

42.3%BJP

22.2%SP

19.6%BSP

7.5%Congress8.4%

Others

2843

71

2

0

2

5

47

61

%: Total vote share of party

LEGAL EYE

JAYALALITHAA is no more. Withher death, Tamil Nadu had lostone of its most charismatic lead-ers. The 68-year-old leader willbe remembered for many things,especially her freebies, be theylaptops, bicycles for girl students,

mixies, grinders and ceiling fans, or herAmma canteens and Amma pharmacies. Shewill be remembered for filing the most num-ber of defamation cases against her politicalopponents and media-persons. But morethan anything else, Jayalalithaa will beremembered for her constant battle with thejudiciary for the past 23 years or more.

Her legal battles started in 1993 and didnot end till her death. The Supreme Court is

The legal battles of TamilNadu’s late leader have been

legendary and long. Whileshe won and lost cases

stupendously over the last 23 years, some will continue

even after her demiseBy R Ramasubramanian

in Chennai

Jaya’sJudicial

Battles


yet to pronounce its judgment in the muchfamous disproportionate assets (DA) case.There were four accused in this case—Jayalalithaa, her close confidante Sasikala,VN Sudhakaran (Jayalalithaa’s foster son)and Sasikala’s brother’s wife, Illavarasi.

DA CASEJayalalithaa was charged with amassingwealth to the tune of `66 crore during herfirst tenure in 1991-1996. She and the otherthree were convicted for four years by a spe-cial court in Bangalore on September 27,2014, in this case. However, the KarnatakaHigh Court acquitted all of them on May 11,2015, thanks to some glaring mathematicalerrors. The Karnataka government appealedagainst this judgment. Incidentally, the casewas dealt by the Directorate of Vigilance andAnti-Corruption of Tamil Nadu, but shiftedto Bangalore in 2004 on a petition filed bythe DMK. A division bench of the SupremeCourt headed by Justices Pinaki ChandraGhose and Amitava Roy reserved its orderon June 7 this year.

Though her legal battles started in 1993,they picked up momentum from December1996. Though Jayalalithaa had capturedpower with a brute majority of 160 MLAs in the 234-state assembly, she was routed inthe 1996 elections, thanks to allegations of corruption.

The DMK, which came to power in the1996 elections, constituted three specialcourts to try corruption cases againstJayalalithaa and her erstwhile council ofministers. Forty-one cases were filed, withJayalalithaa herself facing 12 cases. But shewon 11 cases in whichever court they cameup in.

POLITICAL BATTLESIn fact, Jayalalithaa has the dubious distinc-tion of losing power twice while being chiefminister. The first was in 2001. Jayalalithaawas convicted in two corruption cases by atrial court in February 2001 and hence, notallowed to contest the 2001 assembly elec-tions. She filed nomination papers from fourconstituencies and all four were rejected.

However, her party, the AIADMK, won alandslide victory and on May 14, 2001,

Jayalalithaa became CM. This was chal-lenged by the DMK in the Supreme Courtand a five-judge Constitution bench headedby Chief Justice SP Bharucha quashed herappointment as chief minister. The benchruled that a person who cannot contest andbe an MLA, can’t hold the chief minister’spost. She, however, won her appeal in theMadras High Court and bounced back asCM in March 2002.

The second unseating was on September27, 2014. A special court in Bangalore con-victed Jayalalithaa in the DA case to fouryears simple imprisonment and imposed afine of Rs 100 crore on her. She was sent tojail immediately. Again, she bounced backafter registering a stunning victory in herappeal in the Karnataka High Court. JusticeCR Kumaraswamy gave a new lease of life toJayalalithaa and three others. But the casewill be remembered for its controversialjudgment and errors.

Jayalalithaa once again took over as

DYNAMIC DUOJayalalithaa withSasikala Natarajan

Jayalalithaa hasthe dubious distinction of losing powertwice whilebeing chief minister. The firsttime was in 2001while the secondwas in 2014.

IL


CM, this time on May 22, 2015. She was also the first chief minister

against whom the governor granted sanctionfor prosecution while in office in a corrup-tion case. This was on March 25, 1995, whenthen governor M Chenna Reddy grantedsanction on a private complaint/petitionfiled by then Janata Party president DrSubramanian Swamy to prosecute her.

This was challenged by Jayalalithaa in theMadras High Court, but a division benchheaded by Justice M Srinivasan dismissedher petition and upheld the governor’s sanc-tion. However, Jayalalithaa got a stay in theSupreme Court in May 1995 and the matterwas referred to a Constitution bench whereit is still pending. One of the important ques-tions raised by the division bench whilereferring the matter to the Consti-tution bench was whether a governor couldgrant a sanction like this on a private peti-tion without the aid and advice of the councilof ministers.

LEGAL LUMINARIESThe protracted legal battles would had costseveral crores for Jayalalithaa if one goes bythe sheer volume of cases she fought in the

last 23 years. But she hiredthe services of almost allthe top lawyers of thecountry to argue her cases.Four former Union minis-ters—Ram Jethmalani,Kapil Sibal, Arun Jaitleyand Ravi ShankarPrasad—appeared for her.

Other legal eaglesincluded KK Venugopal(he probably representedher the most), KParasaran, Fali S Nariman,Rajeev Dhawan, MukulRohatgi, Harish Salve, GRamasami (former

Attorney General) and Siddhartha ShankarRay. In fact, Ray appeared for Jayalalithaa ata magistrate court in Bhuvangiri, a taluk inCuddalore district, in April 2001. The magis-trate was also the returning officer of thatconstituency. As she was convicted in twocorruption cases, her nomination paperswere rejected by the returning officers.Anticipating this, Jayalalithaa brought inSiddhartha Shankar Ray, who travelled overbumpy roads to reach the Bhuvanagiri mag-istrate’s court. However, he lost the case asthe magistrate refused to buy his argumentsand dismissed the nomination papers.

Just the fees paid to the battery of lawyerswould be an interesting topic for anyresearcher. Even by a conservative estimate,it would cross several crores. RajeevDhawan, who appeared for Jayalalithaa atthe special courts constituted by the DMKgovernment in 1997, frankly speaks aboutthis in his column to a British newspaperimmediately after Justice Kumaraswamiacquitted Jayalalithaa in the DA case in May2015: “If you want to be in the litigationbusiness, you have to be rich. Law is cheap.Lawyers are expensive. For all its majesty,the law is for the wealthy.”

Meanwhile, if judgment in the DA caseimplicates Sasikala, it will have huge ramifications not just for the AIADMK and Tamil Nadu politics, but for center-state relations.

The Sword of Damocles does indeed hangover the state.

Jayalalithaa hired the services of almost all ofIndia’s top lawyers. Among them were Ram

Jethmalani (left), Kapil Sibal (center) andincumbent finance minister Arun Jaitley.

LEGAL EYE


LEGAL EYE

IN the tiny picturesque Himalayankingdom of Bhutan, peace and hap-piness are values that are cherished.Gross Domestic Happiness is moreimportant than Gross DomesticProduct. The Bhutanese are proudof this and it is a concept that only

this country has floated. But peace may beshattered as a judgment in a defamation casewill determine the borders of freedom andfree speech.

Namgay Zam, a well-known freelancejournalist, has been slapped with a defama-tion notice by Sonam Phuntsho, a well-heeled businessman, who has claimed acompensation of 2.59 million BhutaneseNgultrum for a Facebook post of a doctorwhich Zam shared and which he claimedhad sullied his reputation internationally.(One Ngultrum equals one Indian rupee).

Phuntsho, incidentally, is the father-in-law of Chief Justice Tshering Wangchuk.

Defamation CaseHits BhutanIn a first of its kind, this country has beenrocked by a case that will determine freespeech on social media. At the center ofthe row is a spunky journalist who hastaken on the chief justice’s father-in-lawBy Ramesh Menon in Thimpu

Photos: Ramesh Menon


LEGAL EYE

Zam was formerly a radio jockey and ananchor with the Bhutan Broadcasting Ser-vice. She has also been a Humphrey Fellowof Walter Cronkite School of Journalism.

NO JUSTICEZam had shared a post written by SashaWangmo, a medical doctor, who alleged thather sister and mother’s joint property wasfraudulently claimed by Phuntso by forgingdocuments. Her attempt at getting justice inthe courts had failed, she alleged, as the chiefjustice was the son-in-law of Phuntso.

Zam, while sharing it, said that she wassharing the post of a brilliant 26-year-oldmedical doctor fighting hard to get justicefor her family. The post went viral as she hasa huge following.

Earlier, Phuntso had filed a case in theThimpu district court saying that he had aclaim on the house as he had bought it. Thecourt agreed with his claim. Wangmo thenappealed to the Supreme Court where theHigh Court judgment was up-held. In theCourt, Phuntso claimed he had paid anadvance of Ngultrum 18 million toWangmo’s sister, Sonam, to buy a propertythat she jointly owned with her mother,Tandin Bidha.

However, both of them contested this

claim saying that the documents were forgedand so should be sent for a forensic test. Butit was not sent. This has obviously raisedquestions in the public mind.

Wangmo then approached His MajestyJigme Khesar Namgyel Wangchuck with aplea that they had not got justice. The kingcommanded the Supreme Court to relookthe matter. The case is currently being heard.The last hearing was on December 12. It willtake a while for the final judgment to come.Whatever it is, it is bound to create ripples inthe country.

CONTEMPT NOTICEIn both media and social circles, this case isbeing debated vociferously. Sources inThimpu told India Legal that the chief jus-tice of the Supreme Court might soon file acontempt notice against Zam for defamingthe judiciary by sharing the post. Steven MEllis of the International Press Institute saidthat it raised serious concerns as it couldhave a potentially chilling effect on journal-ists’ ability to seek information.

Observers in Bhutan say this case will testthe boundaries of freedom of speech and willlay down parameters of what can be said onsocial media. Others see it as a veiled attackon the media which is in its nascent stages

and struggling to grow. In pri-vate, journalists say that it couldcreate a fear about taking anindependent stand or criticizingthe powers-that-be. None ofthem want to be quoted. Onesenior journalist said that thereis an invisible fear that thosewho take a view against the gov-ernment will be taken to task.There is self-censorship by themedia as far as criticizing thegovernment is concerned, manyfelt. They also shied away fromtalking about the case as thechief justice was appointed bythe revered king, though hedoes so in consultation with theNational Judicial Commission.

Namgay Zam is determinedto fight towards the end. Shetold India Legal: “Just for

Namgay Zam isopenly taking on

the establishment, saying that to

secure democracy,one must have the

right to exposethose who are

corrupt. She hasinitiated a petition

on Change.orgdemanding aninquiry into thechief justice of

Bhutan.


demanding justice and fair playas well as freedom to vocalizewhat is fundamentally wrong, Ihave been called anti-national. Iwill continue to fight for my basicrights and democratic valueseven if I have to pay a price to payfor it. We got the gift of democra-cy from our fourth king, JigmeSingye Wangchuck, and we mustdo everything to protect it andstrengthen its values. I am notdoing it for myself. It is for theentire country.”

A young Thimpu-based jour-nalist, who did not want to benamed, said: “The verdict in theongoing case could have someconsequence on social mediausers in Bhutan. If the journalistwins the case, people might thinkliberally about freedom of speech.If she loses, it is likely thathealthy discussions will not takeplace due to the fear of beingslapped with a defamation suit.”

While freedom of the press is guaranteedin Bhutan’s constitution, almost all journal-ists India Legal spoke to believed that it didnot really exist and the media with meagerresources was fighting for survival. Investi-gative journalism was non-existent.

GUTSY FIGHTERThough democracy was ushered in 2008after almost a century of absolute monarchy,there is a general feeling that the establish-ment should not be criticized or questioned.Zam says that to secure democracy, one musthave the right to expose those who are cor-rupt. She has initiated a petition onChange.org demanding an inquiry into thechief justice of Bhutan. She has also writtento the country’s parliamentarians, but noth-ing came of it as they refused to be drawninto a case that is in court.

While Prime Minister Tshering Tobgayhas said that it could be a landmark case, DNDhungyel, Bhutan’s information and com-munication minister, suggested that restric-tions on social media could be introduced.

In the letter to parliamentarians and the

prime minister in October, Zam demandedthat an enquiry be held into the actions ofthe chief justice. She accused him of violat-ing his constitutional duty and lacking judi-cial integrity.

No lawyer in Bhutan wants to defendZam as it is a sensitive case, leaving her todefend herself. “I have made all my submis-sions and fighting it out myself. Lawyerswere even scared of talking to me or be seentalking to me. That is the kind of fear wehave today in a free democratic country,” shesaid.

The case is definitely going to be a land-mark one as the government is mulling overa plan whereby certain controls are put onwhat will be acceptable on social media.Tobgay said that while the constitution givesthe right to freedom of expression, it did notmean that the right of others can be under-mined. “Our job collectively is to enjoy ourrights by protecting the rights of others andto make social media a safe, credible placewhere vibrant discussion takes place. Itshould not be a divisive debate that some-times take place and definitely not whileusing an anonymous account.” IL

SILENT VOICESThe flip side of thepeaceful kingdom isthat freedom of expression is now beingthreatened

FOCUS

With rising instances of intimidation,verbal and physical, by lawyers in

various courts across the country, theSupreme Court calls for an urgentreview of the Act under which the

legal profession regulates itselfBy Nayantara Roy

Crackdown on N

OT many people haveheard of Mahipal Sin-gh Rana. It’s time theydid. He is an advocatewho has created dubi-ous history by forcingthe Court’s hand into

taking a hard look at the manner in whichthe legal profession regulates itself and dealswith errant members.

Rana was not the sole reason—lawyershave attacked JNU student Kanhaiya Kumar


LAWLESSNESS Lawyers of the Lucknow bench of theAllahabad High Court indulged in violence during their protest againstthe killing of one of their colleagues inFebruary 2016

UNI

in the Patiala Court in Delhi; their counter-parts appeared before the Madras HighCourt in an inebriated state, and similarincidents have been witnessed in othercourts—but it was largely because of Rana’scase that the Apex Court requested the LawCommission of India to look into the provi-sions of the Advocates Act, 1961.

In April, 2003, Rana barged into theCourt of the Civil Judge (Senior Division) inEtah, Uttar Pradesh, and, according to thecomplaint filed by the Judge, declared:“Kanchan Singh is my relative and how wasthis order passed against my relative? Nojudicial officer has ever dared pass an orderagainst me. Then, how did you dare do so?When any judicial officer passes an orderagainst my client, I set him right.”

He also boasted about his criminal past,saying: “I have relations with highly notori-ous persons and I can get you harmed bysuch notorious persons to the extent I wantto do, and I myself am capable of doing anydeed as I wish, and I am not afraid of anyone…. I was prosecuted in two murder cases.And I have made murderous assaults onpeople and about 15 to 20 cases are going onagainst me. If you, in future, dare pass anorder on the file against my client in which Iam a counsel, it will not be good for you.”

A month later, appearing before the sameJudge, Rana insisted that another of hiscases be taken up and heard out of turn.When the judge refused, he created a com-motion in the courtroom.

The judge lodged a complaint, whicheventually reached the Allahabad High Cou-rt for reference. The Allahabad Court sum-moned Rana and after hearing his version,held that “Shri Mahipal Rana, the contem-nor, is guilty of criminal contempt in intimi-dation and threatening Shri Onkar SinghYadav the then Civil Judge (Senior Division)Etah in his Court on 16.4.2003 and

13.5.2003 and of using loud and indecentlanguage both in Court and in his pleadingsin suit No. 515/2002.”

Rana then appealed to the SupremeCourt where a three Judge bench, on July2016, held him guilty of contempt.

The Rana case provided a timely trig-ger since the court, taking note of var-ious instances of unruly behavior by

lawyers across the country, opined: “Thereappears to be urgent need to review the

Errant Lawyers


TAKING MATTERS IN THEIR HANDS(top) JNU student union leaderKanhaiya Kumar, accused ofsedition, was attacked bylawyers on the Patiala House premises in Delhi inFebruary 2016

(Above) Lawyers protesting against those supportingKanhaiya Kumar

UNI

Getty Image

provisions of the Advocate’s Act dealing withregulatory mechanism for the legal profes-sion….” The Court then requested the LawCommission of India to “go into all relevantaspects relating to regulation of legal profes-sion in consultation with all concerned at anearly date. We hope the Government of Indiawill consider taking further appropriatesteps in the light of report of the LawCommission within six months thereafter.”

The Rana case, which was essentiallyone of contempt of court, was viewedagainst a larger canvas because of the

inaction of the Bar Council of Uttar Pradesh.Ordinarily, the governing bodies of variousprofessions, such as lawyers, chartered acc-ountants, doctors, architects etc., regulatetheir respective professions by various meth-ods, including rules to entertain complaintsagainst errant members and punish thosefound guilty, which may include removalfrom the profession.

Recently, the conduct of some lawyers inthe district criminal court of Patiala House,where JNU student Kanhaiya had been pro-duced, led to them receiving show causenotices by the Bar Council of Delhi. Thatincident, played out in the public eye, sho-cked many. There have been other recentinstances of lawyers’ unruly behavior beingin the public eye, such as the lawyers whoappeared before the Madras High Court inan inebriated condition. It led the MadrasHigh Court to issue rules empowering theHigh Court to debar lawyers who appearedin such a condition before the Court.

The ball is now with the Law Commi-ssion, which is examining the Advocates Act,1961, which deals with such issues. It has


�District-wise physical scrutiny toidentify the advocates who havelicenses from respective Bar Coun-cils. A list of such advocates shouldbe with every Reader of the Court.The Reader will see whether theadvocate appearing is enrolled asan advocate or not. This will excludeappearances by fake advocates.�The Supreme Court should have a contempt bench like it used tohave a Green Bench. That will send a message to advocates whohave a tendency to commit con-tempt of court.

�The subordinate judiciary shouldbe protected by the High Court. The members of the subordinatejudiciary have no roots in the dis-tricts where they are posted andthus have no support system. �Audio video/ CCTV should beinstalled in every courtroom so that there is proof of any ugly inci-dent. This way, the conduct of thepresiding officer will also be recorded. This will also ensurepunctuality of the presiding offi-cer and his conduct throughoutcourt hours.

How can errant lawyers be tamed? JUSTICE AK SRIVASTAVA suggests ways to ensure that there isgreater discipline in the courts

CS Vaidyanathan, former additional

He says most professionalbodies have been unable totake action against erringmembers. The miscreantsoften form part of the votebank of the persons elected.

LEGAL EYE

lawzmag.com

sent out requests to the Bar Council of India(BCI), state bar councils, judges and barassociations for inputs and suggestions onhow to deal with misconduct.

The BCI has constituted a committeewhich is working on a report to be submittedto the Law Commission. Opinions vary onthe issue. KC Mittal, former chairman of theBar Council of Delhi and former president ofthe Delhi High Court Bar Association, feelsthat there is no need to make amendmentsto the existing law (primarily Section 35 ofthe Advocates Act, governing misconduct bylawyers). He believes the problem lies withthe individuals who compose the commit-tees, as in Rana’s case when there was lack ofaction by the UP Bar Council. The discus-sion, he feels, should revolve around how toget the existing mechanism to function as itshould, rather than in trying to change thesystem.

He adds that the logic behind the mecha-nism set out in the Advocates Act whichrequires elections to the Bar Councils, was todemocratize the profession and ensure reg-ulation by people who have experience in theprofession.

Regarding strikes by lawyers, he pointsout a mechanism is needed for lawyers to beable to air grievances for redressal, thusobviating the need for strikes.

Senior Advocate CS Vaidyanathan, for-mer Additional Solicitor General of Indiaand former ex-officio member of the BarCouncil of Delhi, feels that most professionalbodies have been remiss in taking necessaryaction against erring members.

He says that experience has shown that,often, those guilty or accused of misde-meanors form part of the vote bank of thepersons elected thus creating problems forenforcement and implementation of conductrules. Vaidyanathan feels that an independ-ent non-partisan body should be created to regulate professional conduct in the legalprofession.

Justice Ashok K Srivastava, a formerjudge of the Allahabad and Delhi HighCourts opines: “Almost 80 percent of

the Bar is good, hard-working and disci-plined. The trouble makers are only 20 per-cent whose practice is entirely on activitiesother than those permissible under the law.They propagate that they are so powerfulthat they can obtain any order from the Sub-ordinate Courts. They are neither controlledby the Bar Associations nor the Apex Courts.

The seniors in the Bar, for protectingtheir own respect, avoid them for the risk ofugly incidents. The most unfortunate part isthat many of them get elected as Presidentsand Secretaries in many Bar Associations,acquiring power to intimidate the judicialadministration in all respects”.

He emphasizes that in order for it to beeffective, action against erring advocates bybar councils and the courts needs to be swiftand stringent. Delayed action only embold-ens wrongdoers.

Against that backdrop, it seems the LawCommission will have a complex and deli-cate task to perform. It’s the classic case of“physician heal thyself ”.

KC Mittal, former chairman,Bar Council of DelhiThe discussion, hefeels, should focuson how to get theexisting mechanismto function as itshould, rather thanin trying to changethe system.


Justice Ashok K

Allahabad and Delhi HCsHe emphasizesthat almost 80 percent of the Baris hard-workingand disciplined.Only 20 percentare troublemakers.

IL

Though the Punjab andHaryana High Court has

asked the state governmentto take a decision on thefrozen body of Ashutosh

Maharaj, a Dera chief, it is clearly reluctant

to do soBy Vipin Pubby in Chandigarh


FOR nearly three years, thebody of the spiritual chiefof a Dera has been lying ina freezer inside a sprawlingcomplex near Jalandhar.Doctors have declared himclinically dead but the Dera

followers insist that he is in a state of samad-hi and will wake up soon. This stalemate hasput the Punjab government as well as thePunjab and Haryana High Court, which ishearing a petition in this regard, in a quandary.

Ashutosh Maharaj, who headed the DivyaJyoti Jagrati Sansthan (DJJS) and had ahuge following, passed away suddenly on

COURTS

Frozen by Faith!

The Dera which calls itself “a socio-spiri-tual-cultural, not-for-profit organization”(www.djjs.org) was “established and rununder the Mentorship of His Holiness ShriAshutosh Maharaj Ji”. Its aim is to usher in aworld where “every individual becomes anembodiment of truth, fraternity, and justicethrough the eternal science of self-realiza-tion—‘Brahm Gyan’, uprooting in its wake allsocial evils and threat”.

Two months after he was declared “clini-cally dead”, two petitions relating to hisdeath came up before the Punjab andHaryana High Court. One of the petitioners,Dalip Kumar Jha, claimed he was Ashutosh’sbiological son. He claimed that the Swamiwas a resident of Madhubani in Bihar andhad abandoned his family. He sought therelease of the body for performing the lastrites and demanded a DNA test to prove hisrelationship with him. He wanted an inquiryto ascertain the cause of his “mysteriousdeath”. The other petitioner, Puran Singh,said he was the driver of the spiritual headand sought a CBI inquiry into his death.

January 28, 2014, leaving his followersstunned and grief-stricken. Local doctorswho were called by the Dera staff to attendon him declared him clinically dead. How-ever, his followers, estimated to be lakhs,began gathering at the Dera headquartersand prevented the media and local adminis-tration from entering the complex. Fearing alaw and order problem, the administrationref-rained from taking any action.

ASSEMBLY POLLSThe state government too decided to stayaway from the Dera to avoid a political fall-out. A majority of the followers belong to theDalit community which constitutes 32 per-cent of the total population of Punjab andcould be a crucial factor in the assembly elec-tions in February.

In order to avoid a confrontation, the gov-ernment strengthened security around theDera and let the followers decide who wouldbe allowed inside the complex. However, themedia continued to raise questions about thebody of Ashutosh lying in a freezer.


OVERPOWERINGINFLUENCEAshutosh Maharajheld a considerablesway over his disciples, so muchso that when hedied they believedhe was in deepmeditation

“We don’t wantthe stalemate tocontinue. We willtest the case onthe basis of law,science, belief,morality andethics and givethe verdict."

—Justice MaheshGrover, Punjab and

Haryana High Court


COURT DIRECTIVEIt was on December 1, 2014, that JusticeMMS Bedi of the Punjab and Haryana HighCourt had declared that Ashutosh had died a natural death and directed the Punjab gov-ernment to cremate his body within 15 daysin accordance with due religious rites. Thejudge said that in the interim period, Ashu-tosh’s body would be given all due respectand may be displayed for the “last darshan”.

Justice Bedi said the belief of the follow-ers that he was in deep mediation could notbe regarded as an integral part of the reli-gion, and could not be protected under theRight of Freedom of Religion. The belief wascontrary to the fundamental duty underArticle 51 A (h) of the constitution requiringus to have scientific temper and humanism,the Court observed.

It gave the verdict that Dalip Kumar Jhaand Puran Singh did not have any locusstandi on the basis of the material producedby them before the Court to claim possessionof the body which deserved to be disposed ofby cremation. The Court also dismissed thepetitions seeking directions for conductingan autopsy of Ashutosh Maharaj’s body and

a DNA test. The judgment was chal-

lenged by the Punjab gov-ernment as well as by thetwo petitioners. The gov-ernment expressed its in-ability to form any opinionregarding the disposal ofthe body in view of “thefaith and belief of lakhs ofdevotees spread all over theworld”. It said that it wasthe fundamental right of asect or religion to hold anybelief or faith.

PUNJAB HESITANTSince then, the state gov-ernment has been draggingits feet on the issue andsought numerous adjourn-ments from a division ben-ch of the Punjab andHaryana High Court. At arecent hearing, the govern-

ment told the Court that the matter had beenreferred to the Department of Medical Edu-cation and Research for its opinion onwhether a clinically dead person could bepreserved through artificial refrigeration! Itfurther asked the Department to provideinformation that it was the “correct methodfor preservation and whether such preserva-tion would have any effect on public healthor posed any threat to the environment”.

At the last hearing in November, JusticeMahesh Grover, who is heading a divisionbench, said: “We don’t want the stalemate tocontinue. We will test the case on the basis oflaw, science, belief, morality and ethics andgive the verdict.”

After going through a report submittedby the Punjab government in a sealed cover,the division bench observed that the reporthas nothing much to say and had onlytouched upon the constitutional provisionsand Directive Principles of the state.

Clearly, the government is trying to stayclear of any controversy and is not taking anydecision to avoid antagonizing the Dera fol-lowers. It has virtually thrown the ball at theHigh Court to take a decision.

COURTS

WARY OF TROUBLESThe ruling Shiromani

Akali Dal, bracing up forassembly elections,doesn’t want to get

embroiled in the Dera issue

IL

UNI


SECURITY

IT began with Pathankot, went on toUri and then, Nagrota. In all threecases, terrorists were able to breachIndia’s defenses. Why were thesecurity lapses repeated at a time ofheightened tension between Indiaand Pakistan when Kashmir and

Punjab were both on high alert? Both Uriand Nagrota are in Jammu and Kashmirwhich has been on the boil since summer.Why are the defense forces not able to stemsuch breaches?

There are no easy answers to these ques-tions. The second largest army in the worldhas exposed its vulnerability time and time

again. After Pathankot, Defense MinisterManohar Parrikar had declared that hewould make sure that this kind of securitygap would be plugged. But in Nagrota thesame lapses were evident.

WORLD REACTIONCondemning Pakistan is not enough. Weneed to fix our defenses. Former foreign sec-retary Shyam Saran has been consistentlyspeaking of India putting its house in order.“Look to secure yourself—that is the priori-ty.’’ The rest of the world can only sympathizeand condemn terror. Beyond that, there islittle else they will do. Getting the world to

Of Borders,Bombers and

BreachesRepeated infiltration by terrorists

into army camps shows the vulnerability of the army. It is

time the defense forces girdedup to tackle new realities in an

era of suicide bombersBy Seema Guha


condemn Pakistan for encouraging anti-India groups to strike across the LoC is allvery well. Nor is it a difficult task. All countries, in fact, all sane human beings, willcondemn terrorism. During the BRICS(Brazil, Russia, India, China, South Africa)summit and the outreach meeting which fol-lowed, Delhi spent time and energy to target Pakistan.

At the UN and in every multi-lateralforum, India has not missed an opportunityto highlight terror emanating from acrossthe border. During the Heart of Asia confer-ence in Amritsar recently, Indians weredelighted with Afghan President Ashraf

Ghani’s tough words for Pakistan. But con-demnation is good for the domestic con-stituency and winning television TRPs.Apart from a feel-good factor, it is nei-ther here nor there. It is part of the diplo-matic game. The Modi government and itsNational Security Adviser must seriouslyconsider why neither the Indian army norparamilitary forces have paid much heed to ensuring that terrorists don’t get accessinto India.

Soon after the terror attack on the front-line Indian air force base of Pathankot earlythis year, a tri-Service committee headed byLt General (retd) Philip Campose was

A SENSE OF CONTROLAn Army personnel mansa barricade in theSrinagar valley

UNI


ordered to investigate the incident. Thepanel went into the security lapses and alsorecommended measures to shore up securityin defense installations. That report was sub-mitted in May, but the drill does not appearto have been followed through.

“The committee identified loopholes as itexisted at that time, which need to be

plugged on priority with a combination of means—technological, physical andprocedural,’’ said GeneralCampose to India Legal.“The challenge for com-manding officers of everyunit is to ensure 24x7 alert-ness and robust counter-measures, backed by highlevels of technology, equip-ment, motivation, train-ing and security audits,’’ he added.

BETTER RESPONSEOne of the recommendationsof the committee was: betterresponse to intelligence-based alerts about impend-ing terror attacks (very oftenthe red tape in the defensebureaucracy also ensuresthat all messages take around-about route to reach).This is especially important

as intelligence alerts are often missed,including that on Pathankot. The committeealso called for overhauling of the DefenceSecurity Corps, with better-trained andyounger people, raising quick reaction commando platoons in high-risk areas, bullet-proof jackets and better weapons for soldiers.

While these measures take time, thequestion of repeated security lapses whichresult in loss of lives is unpardonable. Thearmy loses its own officers and men, and yetnothing moves. Major-General (retd) AshokMehta admitted that security is lax in theouter perimeters of army camps. “Terroristshave been scaling the walls, so the walls needto be guarded better. The focus generally ison the main entrance or as we say, the tech-nical installation. The ideal situation is uni-form security around the camp but securingthe entire area requires more resources andis costly. Usually for a while after a majorincident, there is general awareness allaround, but this slips after a few months andthe usual complacency kicks in.’’

Much of this has to do with the general

SECURITY

“The committee identified loopholes...which need to beplugged on priority witha combination of means—technological, physi-cal and procedural.”

—Lt General (retd)Philip Campose, Head of

a tri-Service committee

“The security in ourdefense installationswas designed for anearlier gentler era when terror threats aswe see today were non-existent.”

—Ajai Sahni, ExecutiveDirector of the Institute

for Conflict Management

“Terrorists have beenscaling the walls, so thewalls need to be guarded better. Thefocus generally is on themain enterance... Theideal situation is uniformsecurity...”

—Major-General (retd) Ashok Mehta

AN UNPARDONABLE LOSSThe coffin of Major Akshay

Girish Kumar, martyred in the terror attack at Nagrota

army camp

UNI


“chalta hai’’ attitude of Indians as a whole.But when the damage inflicted by a smallgroup of three terrorists puts lives at stake, surely shouldn’t this be tackled on apriority basis?

In its defense, the army points out thatfor every one lapse, there are 20 otherattacks which are foiled by various units. The public doesn’t get to hear of these. Also, there are hundreds of army unitsspread across Kashmir and Punjab, and fool-proof alertness is out of question. Theseunits, according to army sources, arewatched all the time by “sleeper cells’’ oper-ating in the area. There are also sympathiz-ers watching every movement of the targetedcamps. Whenever a weak spot is found, it is exploited.

FENCE PROTECTIONIt is common sense that the perimeters ofevery army camp should be well-guarded.The days of ordinary barbed wire fences arelong over. Electronic fences are in order andthe walls around an army unit must be atleast 8 to 10 feet high. Electronic fences areable to detect the slightest movementaround. A second fence about 20-40 feetshould be fitted with cameras, which allowsthe control room to see if there is any breachin the forward perimeter. Also, watch towersand manned guards are a must. Visibility atnight is also important, so night vision gog-gles should be provided.

“Patrolling an area by marching up anddown with a gun in hand is hardly going toprovide security. In fact, the men become sit-ting targets for terrorists. There is more tosecurity than meets the eye,’’ said Ajai Sahni,Executive Director of the Institute forConflict Management and a counter-terror-ism expert.

“The security in our defense installationswas designed for an earlier gentler era whenterror threats as we see today were non-exis-tent. This is why there is no strict segrega-tion of civilian and military quarters in manycamps. When families live inside a camp,strict security drills are not followed and sowe see the easy breach of security at theperimeters of defense installations,’’ saidSahni. “It is time for the government and the

army top brass to realize that things cannotbe as they were in the past. The whole systemneeds to be overhauled and funds are neededto equip the army, navy and the air force withadvanced technology. A new concept ofsecurity must be put in place to deal withnew realities in an era of suicide bombers,’’he said.

Cantonments in the British days, heexplained, were generally built away fromthe main cities and towns and usually isolat-ed. But as the pressure of populationincreased, towns and cities expanded intothe fringes of cantonments. Now many are inthe heart of cities and towns. This expansionpresents its own set of problems. Those whoplan terror attacks are in a better position towatch the movement of the army, find theweak points and pass on the information toterror modules.

Hauling up the entire security systemneeds both time and money. Funds arerequired to have multi-layered protectionacross army camps in sensitive border areas.It is up to the Modi sarkar to give the armywhat it requires. Promoting love for the armythrough gimmicks like Diwali-sandesh are oflittle consequence unless the governmentprovides money to equip the forces withmodern technology to guard their own. If thearmy fails after this, fingers can be raised,said defense experts. Not before.

Former Foreign SecretaryShyam Saran has been consistently speaking of Indiaputting its house in order. Hisadvice: “Look to secure your-self—that is the priority.”

Defense Minister ManoharParrikar had declared afterPathankot that security gapswould be plugged. But inNagrota the same lapseswere evident.

IL

TIES between pilots and theDirectorate General of CivilAviation (DGCA) have often beentesty in the best of times, leadingthe regulator to often crack down

on them. This time the issue is pilots report-ing sick, with the DGCA coming out with astrict draft Civil Aviation Requirement(CAR) in November relating to Flight CrewStandards Training and Licensing (Section 7,Series X, Part III) and their adherence to theflight duty assigned to them.

The CAR signed by the D-G, BS Bhullar, saysin unequivocal terms: “…it has beenobserved that pilots at times do not adhere toassigned flight duties that have a bearing onflight safety or public interest. Patterns havebeen observed wherein pilots rostered forflights report sick especially during times offestivals, weekends or at times during periods of disagreement with the management….In some cases, groups ofpilots report sick without notice and as aresult airlines are forced to delay or cancel

Dogfight in the SkiesA DGCA move to cancel the licenses of pilots who feign sickness hasrebounded on it as pilot unions have sent it a legal notice. This is yetanother skirmish in the testy ties between both parties By Shobha John


AVIATION

Illustrations: Amitava Sen

the window of circardian low (when one issupposed to sleep and generally between 12am-5 am), he stressed. “It is the job of air-lines to track the FDTLs of their pilots.”

But what was the sudden provocation?According to pilot unions (see box), in thefirst week of November, Jet’s rosteringdepartment constantly kept calling pilots forroster changes. This resulted in delays andthe DGCA coming down on them.

ANOTHER CARIncidentally, this is not the first time that theDGCA has pulled up pilots. Way back in2005, when pilots left en masse for greenerpastures in other airlines leaving manyflights disrupted, the regulator brought out aCAR which made it mandatory for them togive a six-month notice. That CAR is stillvalid and many pilots privately chaff at theunfairness of being targeted when profes-sionals in other sectors can hop jobs at will.

Though the DGCA has claimed that air-lines publish planned flight rosters—dynam-ic rosters is what it calls them—on a periodicbasis, this is far from the truth. There are air-lines which plan their roster on a day-to-daybasis and even go so far as to violate FDTLnorms, leaving pilots to face the raw end ofthe stick. This was evident in August 2016when Jayant Sinha, minister of state for aviation, told the Lok Sabha that the DGCAhad suspended 63 SpiceJet pilots for violat-ing FDTL norms. But surely pilots don’t“violate” FDTLs on their own? Airline man-agements often push them to fly their

their flights at the last minute….This is ahighly undesirable practice and goes againstthe public interest.

“Such an action on the part of pilotsattracts the provisions of sub-rule (2) of rule39A of the Aircraft Rules, 1937, which readsas follows: ‘The Central Government maydebar a person permanently or temporarilyfrom holding any license or rating men-tioned in rule 38 if in its opinion it is neces-sary to do so in the public interest’.”

It further added: “Airlines publish pla-nned flight roster for pilots on periodic basis,which serves as a planning tool. However,due to the dynamic nature of flight opera-tions, such planned roster undergoes changeat regular intervals. Pilots shall undertakethe flight duties as per the dynamic roster aslong as they are within the Flight Duty Time Limitations (FDTL) norms. Airlines shall ensure that pilots, who often report sick on periodic basis… are examined by company doctors immediately upon theirreporting sick.”

UNIONS REPLYThis CAR has so irked pilots that threeunions—the Indian Pilots Guild (IPG), theIndian Commercial Pilots Association(ICPA) and the National Aviators’ Guild(NAG) representing the pilots of Air India,erstwhile Indian Airlines and Jet Airways—issued a six-page legal notice to the DGCAon November 23 over this. And in a surpris-ing show of support, Air India’s CMDAshwani Lohani wrote to the DGCA report-edly saying that such a CAR would adverselyaffect flight safety and that sorting out pilotissues was the airline’s job.

A senior aviation medical expert said oncondition of anonymity that this kind of“military diktat” from the DGCA wasuncalled for and the regulatory body shouldnot take its brief from airlines. “The FDTLwas framed with the objective of givingpilots adequate rest and airlines utilizingthem well. A pilot is the last word on his ownfitness. An aviator pretending to be unwell isworse than one who is actually unwell.”

Airlines should be able to utilize pilotswithin the FDTL which has provisions foreight hours sleep and also takes into account


“The FDTL wasframed with theobjective of givingpilots adequaterest and airlinesutilizing them well.A pilot is the lastword on his own fitness. An aviatorpretending to beunwell is worsethan one who isactually unwell.”

—A senior aviationmedical expert

machines to the maximum. FDTL, inciden-tally, is defined as the period when “a flightcrew member is required to report for dutyand finishes when the plane finally comes torest at the end of the last flight on which heis a crew member”.

An airline head, who didn’t want to benamed, admitted that “dynamic rostering”was common in airlines but that he wascorrecting these glitches in his ownairline.

EXPANSION PLANSThe moot reason behind this fracas hasbeen the expansion plans of airlines them-selves which have seen a shortage of experienced commanders. This makes them stretch their pilots, sending their lives into a tailspin. Many are sleep-deprived and many are exhausted.This lowers their reflexes, a dangerous situa-tion when flying.

The legal notice sent by the IPG, ICPAand NAG to DGCA was the last straw on the camel’s back. It says: “Section 42 Part V of The Aircraft Rules 1937,expressly proscribes that ‘the holder of a


AVIATION

DGCA’s draft CAR says that if pilotsdon’t adhere to assigned flight duties, itwill have a bearing on flight safety orpublic interest. What are your views on this?Public interest is a loosely termed andconveniently misused phrase. Flightsafety will be further jeopardized ifpilots don’t get adequate rest. The rootcause of all this is the systematic failureof airlines to hire enough pilots for theirfast-expanding fleet. They have hiredlesser number of pilots and offer themlucrative overtime allowances to flymore. While the younger lot gets

enticed by these offers, the seniors seethrough these. Unfortunately, the DGCAappears confused about its actual roleand interferes in every aspect of airlineoperations and ends up deviating fromits role of administrating the civil avia-tion sector. It has got into issues suchas human resources and pricing andairlines are able to influence it to thedetriment of pilots.

But aren’t pilots themselves toblame? Many Jet pilots took leave in November, upsetting flights.Firstly, news that pilots availed sick

Three pilot unions have come together to take on the DGCA over the draft CAR which makes it difficult for them totake sick leave. CAPT SAM THOMAS, president of the Air Line Pilots Association, India, tells SHOBHA JOHN thatthe Flight Duty Time Limitations have often been violated by airlines. And the refusal of pilots to have doctors cometo their homes is because the medics too are part of airline managements.

“Most airlines flout flight duty time limitations”

IL

licence shall not exercise the privileges of hislicence during any period when he is awarethat his physical condition has deterio-rated below the standard required for that category of licence’. Thus the entire emphasis on the Rules is that a pilot must not fly at all if at any time he is aware that his physical condition has deteriorated….”

It further says: “Member pilots have beenfacing a very major issue in the airlines theyfly for—that of irregular and last-minute ros-tering. Indeed that has become the normespecially for short haul flights. The correctprocedure is that a flying roster is drawn upmonth wise, or every 2 weeks at themost...However…the roster is almost neverfollowed and is changed on a daily basis.”

The pilots challenged the DGCA to do asurvey of the actual “scheduling system”. “Itis most interesting that the CAR claims tohave ‘observed patterns’ of pilots rostered forflights ‘falling sick’, but has not observed thepattern of the rostering itself,” said thenotice. The pilots also denied that there wasany “mass sick leave” as alleged. Their onlydemand, they said, was for the management

to stick to a proper published roster and nothave daily changes.

They also called for a survey of the num-ber of pilots in each company vis-a-vis thenumber (and type) of aircraft. They askedthe DGCA to “ensure the recruitment of andtraining of sufficient pilots instead of issuingCARs to penalize pilots and compel them tofly against their will”. They questioned theDGCA entering the rostering arena when itshould be an internal administrative matterof individual airlines.

The legal notice also alleged: “My clientsstrongly feel that the draft CAR has beentaken out purely at the instance of and forthe benefit of the operators of the airlines tomaximise flights and profits, and to thedetriment not only of the pilots but publicsafety.” The notice said that “dynamic roster-ing” today simply means no rostering and isnot based on any scientific principles andwould greatly impair a crews’ level of alert-ness. It asked the DGCA to immediatelywithdrawal the draft CAR, failing which,legal proceedings would be instituted.

It is obvious that a dogfight is ensuing inthe skies.


leave in large numbers in November iswrong. As per the National Aviator'sGuild, our member associate, Jet has aflight safety program to alleviate mentaland physical fatigue in pilots. It’s a week-long program, done periodically. The lastone was in the first week of November.The pilots are advised to avoid alcohol,non-veg and sea food (some types offish can upset the stomach), stick to theroster and spend time with the family.The rostering department constantly keptcalling pilots for roster changes due toan acute shortage. This resulted indelays. The delays, however, continueand the pressure put on pilots to operatebeyond their published roster is what iskeeping the system going on a day-to-day basis.

What is unscientific about dynamic ros-tering as long as it falls with the FDTL?Many airlines violate FDTL with impunitydue to the CAR on FDTL being open to

interpretation. Unfortunately, except forIndiGo which has expanded in a con-trolled manner, very few airlines havesystematic rostering. As per NAG in Jet,they are sometimes changed on a hourlybasis. A pilot may be called to do aSingapore flight and when he comes tothe airport, he is told to do the HongKong flight. He too needs time to pre-pare for a flight. Also, there are fewstandbys and with Jet having four differ-ent types of planes, pilot rostering ispoorly managed.

Why are your unions against doctorsbeing sent to the homes of pilots tocheck if they are sick?These doctors are also part of the man-agement. The ramifications of a pilotbeing sick are different. For example, ifhe has a cold and flies, he can rupturehis eardrum. If he has a backache, itcan become serious. The rule book says we should be fit to fly, but

managements expect us to work underall circumstances.

But what about passengers who areinconvenienced by your protests? That’s an undesirable consequence ofprotest by anyone. How come it's okwhen parliament is brought to a standstillby protests? Banks and other organiza-tions periodically go on strike too.Lufthansa just came out of a strike andtheir management cancelled more than600 flights.

Is the FDTL in India more stringent thanwhat the FAA prescribes?One cannot compare Indian conditionswith what is abroad as the weather here,especially during monsoons, can be tax-ing. Also, many Indian airports lackradars and other infrastructure. Flying isquite challenging here, particularly in theabsence of consideration for human fac-tors and DGCA’s punitive actions.

A WHO group has dropped theword “counterfeit” and replaced it

with “substandard and falsified”with regard to drugs. This is more inkeeping with public health concerns

than intellectual property rightsBy Nayantara Roy

WHAT’S the differencebetween substandard,spurious, falsely labeled,falsified, counterfeit(SSFC)—all terms relat-

ing to medicine? The World HealthOrganization (WHO) Member StateMechanism recently decided to simplify thisterminology on the basis of recommenda-tions by an informal working group. Thisincluded representatives from India, China,Brazil, the US, Argentina, Ireland, Indo -nesia, Tanzania, Nigeria and Spain. Insteadof “counterfeit”, the terms used henceforthwill be “substandard and falsified”. This willbe placed before the World Health Assemblywhen it meets in May 2017.

So what’s in a name, one might ask?India is a large manufacturer and exporterof generic medicines. In 2008 and 2009,almost 20 shipments of generic medicinesfrom India to developing countries were


MEDICINE

Much Ado aboutCounterfeits

Amitava Sen

detained at customs by European Unionauthorities while in transit through Europe.They were stopped on the grounds that theymay be “counterfeit” medicines, ie medicinesthat infringe trademark.

CONFUSING TERMMichael Deats, group leader for the SSFFCSurveillance and Monitoring, Safely andVigilance, Essential Medicines and HealthProducts at the WHO told IntellectualProperty Watch: “[T]he term ‘counterfeit’ isnow usually used in the context of protectionof intellectual property rights. Substandardand falsified products are a public healthissue and the focus should be firmly on pro-tecting public health.” He also reportedlyinformed the website that the terms spuri-ous, and falsely labeled were dropped as “fal-sified includes all variations of deliberateand fraudulent misrepresentation”.

Dr Unni Karunakara, formerly Inter-national President of Medicine Sans Fron-tieres (Doctors Without Borders) and cur-rently Senior Fellow, Jackson Institute forGlobal Affairs, Yale University, explained toIndia Legal: “The term ‘counterfeit medicine’ is overly broad and creates confu-sion because it conflates intellectual proper-ty issues with public health problems.Different organizations and countries usedifferent definitions of the word, making ithard to know exactly which problem is being referred to when this term is used.Some definitions focus on broad intellectualproperty terms and so confuse legitimategeneric medicines with dangerous fakes. Forthis reason, MSF believes the term counter-feit should not be used in relation to medi-cine and instead more accurate and preciseterms such as ‘fake’ or ‘substandard’ shouldbe used.”

He also explained that “a generic medi-cine is a legitimately produced medicine thatis an exact copy of the originator productand performs in exactly the same way.Generic medicines used in donor-fundedtreatment programs and by MSF must meetquality standards to prove they are just aseffective as the originator product. Healthprograms around the world rely on theseaffordable copycat medicines.

“A substandard medicine is a drug thatdoes not meet quality standards—it maycontain too much or too little of the activeingredient, may be contaminated, may bepoorly packaged or fail to meet quality stan-dards in other ways. These medicines may belegitimately produced mistakes or may havebeen knowingly produced to a substandardlevel. Both originator and generic medicinescan be found to be substandard, and theissue of substandard medicines is a neglect-ed one that needs far more attention.

“A fake medicine is deliberately andfraudulently mislabeled, giving false infor-mation on where it was made or by whom sothat people will think it is a legitimate medi-cine. Fake medicines are dangerous as theyare unlikely to contain the active pharma-ceutical ingredient needed to make the med-icine effective, and may even contain harm-ful substances. They present a serious threatto public health that needs to be appropri-ately addressed.”

NEFARIOUS MEANSIn addition to “counterfeit” meaning deliber-ately fraudulent products being passed off as the real thing, Karunakara said it couldalso be applicable when a company repack-ages and sells expired medicine with a fresh expiry date printed on the new


While “counterfeit”means deliberatelyfraudulent products beingpassed off as thereal thing, genericmedicines arelegal copies of anoriginal productand for a variety ofreasons, are muchcheaper to produce. India is alarge manufacturerof generic medicines.

group of pharmaceutical companies (manyof them multinationals) which attempted tosue the South African government in 1998for making changes to the law which wouldhave helped people get access to cheaperAIDS and other medication. The companiesalleged that South Africa’s amended Section15C of the Medicines and RelatedSubstances Control Act (allowing parallelimports of patented medicines) was in viola-tion of both the South African constitutionand the Trade-Related Aspects ofIntellectual Property Rights (TRIPS). Theamendments also contained provisions forgeneric substitutions of “off-patent” (i.e.where the patent has expired so the formulais now in the public domain) medicines andtransparent pricing of medicines.

The government argued that the amend-ments were neither in violation of the SouthAfrican constitution nor of TRIPS. In fact,some of the changes had been drafted withhelp from the World Intellectual PropertyOrganization.

The flexibilities within TRIPS were fur-ther clarified later in the Doha Declaration(the Declaration on the TRIPS Agreementand Public Health, WTO Ministerial 2001).But in the interim, the US had withheldtrade benefits and had even laid out thethreat of sanctions against South Africa.However, there were large-scale publicdemonstrations in the US as well as inEurope against the action of the phar-maceutical manufacturers, which forced theUS government to reconsider its actions.Due to the strong public reaction, the casewas withdrawn.

SUBSTANDARD DRUGIn India, the case of Novartis vs Union ofIndia made a bit of stir when the SupremeCourt upheld the denial of patent to Novartisfor its anti-cancer drug Gleevec. Section 3(d)of the Indian Patents Act, 1970 has stringentrequirements for patenting and it was foundthat Gleevec did not fit the standardsrequired to be given a patent in India.

Generic medicines can be manufacturedlegally in three ways. One is when the patentterm expires and the process and productcome into the public domain. Another is to

packaging. This was recently done in Kenya.Generic medicines, on the other hand, are

legal copies of an original product and for avariety of reasons, are usually much cheaperto produce. Karunakara gives the example ofhow the cost of retroviral medicines forAIDS in 1999-2000 was about $10,500 peryear per patient. Cipla’s Yusuf Hamied saidthat he would make medicine costing $1 perday, around $360 per year per AIDS patient.

Generics also help in keeping the pricesof medicines down, which can be inflated bypatent holders in a practice termed “pricegouging”. This was illustrated vividly in thecase of Martin Shkreli, CEO and founder ofTuring Pharmaceuticals, who acquired alicense to manufacture the anti-parasiticmedicine, Daraprim. He reportedly raised itsprice from $13.50 to $750. Daraprim is usedfor treatment of people with “compromised”immune systems. Shkreli reportedly defend-ed his action by citing the high cost of mar-keting and distribution.

This also brings to mind the case of a


“The term ‘counterfeitmedicine’ is overly-broadand creates confusionbecause it conflatesintellectual propertyissues with public health problems.”

—Unni Karunakara, Senior Fellow, Jackson

Institute, Yale University

“WHO’s stand on dropping the term counterfeit does notaddress the issue of big pharma fighting tosave its turf from genericmanufacturers.” —Rahul Chadha, CEO and

Wholetime Director atRWL Healthworld

MEDICINE

get a license from the patent owner who thengets royalties and the third is “compulsorylicensing”, i.e., when a government adjudgesthat there is a public health crisis in thecountry and it gets a compulsory license to manufacture the patented medicine. Inthe past, the US and Brazil have had issuesover compulsory licensing policies followedby Brazil.

When Rahul Chadha, CEO and Whole-time Director at RWL Healthworld Ltd.(which operates businesses and retail prod-ucts under the brand names FortisHealthworld, Wellness Tree and Medsource)was asked about the possible effect thatremoval of the term “counterfeit” would haveon the Indian generics industry, he said:“WHO’s stand on dropping the usage of theterm counterfeit in lieu of falsified is a mat-ter of semantics...it does not address theissue of big pharma fighting to save its turffrom generic manufactures… till such timeas medicine is big business such commercialtussles between corporates, countries andtrade blocs will continue…”

The change in nomenclature is, therefore,more to do with making sure that “bad”medicine does not get into the market andthat agencies do not waste their time stop-

ping the sales of perfectly usable medicine.As Karunakara said, governments (includingIndia) need to develop the capacity to stop“bad” medicine from reaching people.

Access to medicine is an issue that isfraught. The contentious point is whether itshould be viewed from a largely commercialpoint of view or by balancing commerce withneed. In the meanwhile, governments needto improve their capacity to fight criminalswho have no compunction about selling spu-rious or substandard material to the sick.


IL

BEYONDONE’S MEANS(Top) Patients atthe OPD of aJaipur hospital.With brandname medicinespriced sky-high,access to treat-ment remains afraught issue

Yawning price gap

Disease Brand NameMedicine Cost (`) Generic Medicine Cost (`)

HIV, chronicHepatitis B

Viread (Gilead) 68,000 Tenvir (Cipla) 1,500

Psychiatrictreatment

Risperidon 8,200 Risperdal 608

CancerGleevec(Novartis) 680,000

Gleevec (withoutpatent) 4,000

Hepatitis CSofosbuvir(Novartis) 68,000

Manufactured byNatco & Hetero 710

UNI

THERESA MAY’S government sti-rred a hornet’s nest in Septemberwhen it announced that it intend-ed to undertake a full public con-sultation on caste discrimination

in the UK. The Hindu diaspora of just undera million has been thrown into a tizzy, withthe upper castes insisting that there is noneed for such an exercise as caste is not a fac-tor in British society. However, those belong-ing to lower castes say that caste discrimina-tion is a reality they face, mainly within theIndian community.

Though the government is yet to lay outthe modalities of the consultation, the issue

has already raised passions and a high deci-bel debate is under way.

The British parliament had justified theinsertion of a provision against caste dis-crimination in the Equality Act of 2010—which deals with other forms of discrimina-tion—on the assumption that the caste sys-tem exists in UK’s Indian diaspora. The Actoriginally gave power to the minister todecide whether to implement the provisionor not. However, in a landmark decision, anamendment in 2013 made implementationobligatory, but so far it has not been done.The decision to outlaw caste discriminationcame after a long and hard battle fought by

CasteCan’t

beCast

Away The UK government’s exercise to have a public consultation on castehas stirred a hornet’s nest. Even in such a developed country, this isan emotive and ugly issue By Sajeda Momin in London

DIVIDED WE STANDIndian community

members with PrimeMinister Narendra Modi

during his UK visit in2015. Unfortunately, the

diaspora has deep caste-based divisions


GLOBAL TRENDS

UNI

numbers are estimated to be in lakhs. CasteWatch UK, IDSN and other rights group saythat caste discrimination is often very subtleand takes different forms. These includeupper caste patients refusing appointmentsfrom doctors once they realize they are fromthe lower castes, health care professionalsrefusing to treat elderly from the Dalit com-munity, victimization in the workplace andunfair dismissal because of caste.

The landmark Begraj & Begraj Vs HeerManak became the first case of caste-baseddiscrimination in the UK to be recorded incourts. In 2011, an Indian couple told anemployment tribunal they faced discrimina-tion in the workplace, ironically a solicitor’sfirm, and were unfairly dismissed becausethey were from different castes. Vijay Begrajand his wife, Amardeep, met when workingat Heer Manak, the solicitor’s firm, inCoventry. Amardeep, a Jat, said she waswarned against marrying Vijay, a Dalit,

the International Dalit Solidarity Network(IDSN) and other human rights groups.

The current Labour Party leader, JeremyCorbyn, who has been a trustee of the IDSN,had said he was aware of caste discrimina-tion abroad but was “horrified” to “realisethat caste discrimination had been exportedto the UK too”.

HORRIFIC REALITYA number of research papers carried out bythe IDSN and government-commissionedresearchers like the UK Equality and Hu-man Rights Commission have documentedthat caste discrimination exists in variousforms within diaspora communities from theIndian sub-continent. It can lead to harass-ment, bullying and violence in the work pla-ce, in the provision of services and in educa-tion, says a briefing paper of the IDSN.

“While caste discrimination in the UKdoes not reach the same level of brutality asin India where Dalits are subjected to vio-lence, rape and murder, it can have seriousconsequences for the victims,” explained theIDSN report.

Ram Lakha, the former mayor of Coven-try—a city in central England about 100miles north of London and which has a largeGujarati population—faced discriminationin his political career because he was a Dalit.“During campaigning for the council elec-tions I was told that I would not get the sup-port of the Gujarati voters because I was a‘chamar’. So I filed my nomination from anon-Indian constituency and was able towin,” said Lakha.

It is also customary for the local Indiancommunity to honor each new mayor electedso as to maintain good relations with thecouncil, but Lakha’s achievement was notrecognized in the same manner because hewas from a low caste. “I recently discoveredfrom my children that they suffered difficul-ties at school too but they never told me.Caste feelings are there and it will take a longtime for them to die out,” explained Lakha.

HARSH FORMSAs no caste-based census has been carriedout in the UK, there is no exact figure of howmany low caste Hindus live here, but their


STIGMATIZED EVERYWHERE(Left) A demonstrationagainst caste-based discrimination within theAsian diaspora in the UK

“During campaigning for thecouncil elections I was told

that I would not get the support of the Gujarati votersbecause I was a ‘chamar’. So

I filed my nomination from anon-Indian constituency and

was able to win.” Ram Lakha, former

mayor of Coventry

idsn.org

IL

“recipe for disaster”, creating friction withinthe Indian community.

Trupti Patel, president of the Hindu Fo-rum of Britain, said her organization hadfound scant evidence of caste-discrimina-tion. She claimed that the legislation wouldhave the negative effect of making youngpeople “aware of their caste for the first time,and encourage people to make unfoundedcomplaints against their employers”.

Bob Blackman, the Conservative MP forHarrow East in London which is home to avery large number of Hindus, warned thelegislation would lead to “completely unnec-essary interference” and a “bureaucraticnightmare of proportion the Hindu commu-nity would not want to see”. Blackman, whois also the chair of the All Party Parliamen-tary Group for British Hindus, remarkedthat the caste legislation had generated moreinterest and involvement from the UKIndian community than any other issue hehad ever encountered.

However, for Dalit rights groups, this isnot a Hindu issue but one of basic humanrights. Satpal Muman, chair of Caste WatchUK, said: “This is not about invading thereligious and cultural space. It is purely tar-geted at discrimination in the public sphere.Caste discrimination is a human rights viola-tion.” Even if a small section of peoplebelieved in the caste system, it would have animpact on the lives of people, he stressed andadded that “victims of caste-based discrimi-nation deserve legal clarity”.

The supporters of the legislation feel thatthe announcement of a consultation is just astalling tactic at the behest of the Caste-Hin-du lobby. Section 9 of the Equality Act of2010, amended by parliament in 2013, al-ready required the government to introducesecondary legislation to make caste anaspect of race, so why the fresh consultation,they ask. “The government may be hopingthe consultation will allow them to point topopular opinion to justify them refusing tointroduce legislation required of them byParliament and the UN,” said Keith PorteousWood, executive director of the NationalSecular Society. The consultation is expectedto begin before the end of this month andrun for 12 weeks.

by a senior colleague on the grounds “thatpeople of his caste were ‘different creatures’and his position in the firm was ‘compromised’”.

Vijay claims that after the marriage, he was harassed, threatened, denied promo-tion and ultimately dismissed. But the casecollapsed in February 2013 as the judgerecused herself after a visit by police officers,and may now be subject to a retrial.

RESISTING THE MOVEThe anti-legislation lobby is led by theAlliance of Hindu Organisations, which hasexpressed “concerns about... the impact itmay have on communities living within theUK”. More importantly, it believes that anyanti-caste discrimination legislation is adirect slight on Hinduism. At a recent publicdebate on the Act organized by the IndianForum on British Media at the House ofCommons committee room, Satish Sharma,general secretary of the Council of HinduTemples, said the legislation would be a


GLOBAL TRENDS

Bob Blackman, Conservative MPHe believes that the legislation on caste discrimination would leadto unnecessary interfer-ence in the matters of theHindus and says it has generated more interest inthe community than anyother issue.

Jeremy Corbyn, Labour Party leader, earlier a trustee with IDSNHe was aware of caste discrimination abroad butwas “horrified” to “realisethat caste discriminationhad been exported to theUK too”. Though not brutal,it can have serious conse-quences for the victims.


South Korea’s parliamenthas voted to impeach

President Park Geun-hye overan influence-peddling scan-dal, setting the stage for herto become the country’s firstelected leader to be oustedfrom office in disgrace. The vote againstPark, the nation’s first femaleleader, followed weeks ofdamaging disclosures in acorruption scandal that trigg-gered huge street protests.

Her powers will now be sus-pended as the constitutionalcourt considers whether toremove her from office. Parkhas been accused of allow-ing a shadowy confidante,the daughter of a religioussect leader, to exercise influ-ence on matters ranging fromchoosing top governmentofficials to her wardrobe, andof helping her extort tens ofmillions of dollars from SouthKorean companies.

S Korea prez in the dock

INTERNATIONAL BRIEFS

Google News maybe blocked in

Russia unless it com-plies with a new ruling byRoskomnadzor, theRussian communica-tions regulator.According to the lat-est decision, foreignnews aggregators,especially GoogleNews, will be put ona special register in2017 and will haveuntil the end ofMarch to registertheir legal entities inthe country. Currently,

there are two majornews aggregatorsowned by foreigncompanies inRussia—Google andBing—whose trafficexceeds a million vis-itors per day. Bingbelongs to Microsoftwhich already has aRussian subsidiarycalled Microsoft Rus.But Google, whichmostly providesadvertising, nowneeds to change itsregistration data orset up a subsidiary inRussia.

Germany continues to be dividedover a new disability law that

came into effect recently aftermonths of debating. The FederalParticipation Law gives financialincentives to firms willing to employpeople with disabilities. It allowswell-to-do “seriously disabled” peo-

ple to avail benefits, even if theychoose to stay at home, instead ofan institution.

It is being hailed as a “systemchange” by Labor Minister AndreaNahles, whose department con-ceived the bill. Disability activists,however, say that the new law still

gives the adminis-tration the powerto move disabledpeople into aninstitution if theythink that thecosts are prohibi-tive, which isagainst the UnitedNations’ 2008Convention on theRights of Personswith Disabilities.

The parliament in Bratislava,Slovakia, approved a bill that

will prevent Islam from being reg-istered as a state religion by atwo-thirds majority.

Currently, 62 percent ofSlovakia’s 5.4 million populationis declared Roman Catholic andthe last census puts the followers

of Islam at only around 2,000people. Chairman of the SlovakNational Party (SNS), AndrejDanko, said: “We must do every-thing we can so that no mosqueis built in future.” The IslamicFoundation in Slovakia has notcommented on the new legisla-tion so far.

Islamophobia in Slovakia

—Compiled by Shailaja Paramathma

Special register for GoogleGermany’s disability law

BOOKS

THE Medical Council ofIndia warns doctorsexplicitly: ‘A physicianshall not use touts oragents for procuringpatients.’ Medicine hasbecome a business, and

one sure way this reality manifests is in theway the art is reduced to a commodity thatmust be sold. In the unregulated, unsupport-ed environment that private doctors work inin this country, attracting patients takes up amajor part of their time and effort; the kind

It’s not the doctors but a burgeoning army of middlemen that public and private hospitals are pampering. An extract from The Ethical Doctor by DDR KAMAL KUMAR MAHAWAR

The Touts

of time and effort that one hopes would oth-erwise be spent looking after patients anddeveloping science. No surprise then thatour doctors generally do very poorly in push-ing new frontiers and the contribution ofIndian private sector doctors to global scien-tific media literature is minuscule.

Touts constitute one of the most interest-ing aspects of health care in India. It mayeven sound funny if it did not have reallyserious consequences. You’ve got these help-ing hands all over the place. They act as mid-dlemen and appear from nowhere, precisely

BRISK BUSINESSHospitals devise any

number of means to attract richie-rich “customers”


when you need such help. They have con-tacts in high places. Depending on yourneed, they can arrange anything and every-thing. They will get you to the right doctor,the right laboratory and the right hospital,just when you are beginning to feel lost in anew city. In lieu, they will take a commissioneither from you or from the doctor or labora-tory or hospital, depending on the servicesprovided. For example, touts from villageswill barge into doctors’ offi-ces in towns andcities, declare to the doctor that they have‘brought’ a patient, explain what they wantthe doctor to do, clarify how deep thepatient’s pockets are, and finally agree onthe commission with the doctor.Depending on how desperate the doc-tor is, the commission can be quitesubstantial.

This phenomenon is by nomeans specific to ruralpatients seeking help in big

cities. In urban practice, it takes differ-ent forms and is rampant in both publicand private sector hospitals. In the publicsector, these touts are sometimes the chan-nels whereby government doctors and offi-cers earn extra money. In the private sector,they are employed by many doctors, labora-tories and hospitals to attract patients. Theyprey upon the sick at a time when they aremost vulnerable, masquerading as God’sangels. These are a thriving community untothemselves—the Indian medical touts.

In a very poor country like ours, there isno shortage of people who will do anythingfor you for any wage. For a monthly salary inthe range of `10,000 to `20,000, you canhire any number of ‘marketing executives’ or‘secretaries’ or ‘personal assistants’ you like.In a market where one can make tens ofthousands of rupees from just one patient,many hospitals and nursing home ownersknow that such employees finance their ownemployment and it pays back to have asmany of them around as possible. The job issimple—they have to ensure a constantstream of patients. This means interactingwith local doctors and establishing deals.

This also means tying up with quacks andRMPs in villages…. There is a third method

of getting patients to a clinic or a hospital—via a tout who preys upon helpless patientsin government hospitals, at bus stands, rail-way stations, or anywhere else. Obviouslywhen one gets better at this job, one won’twork for `10,000 a month, and voila! A free-lance tout is born.

The Indian health care system is riddledwith these touts. They are sometimes thestaff working in hospitals, looking to makesome extra money. It could be the reception-ist, the billing clerk, the ward boy, the lift-man, the toilet cleaner, and even the tele-phone operator. More often, they are profes-sional touts working for doctors and diag-nostic facilities but pretending to be a help-ing hand around sick patients and their wor-ried relatives. One does not have to be agenius mathematician to figure out that eachof these touts needs to be successful just afew times in a year for the employers torecover the wages for the whole year.

The more talented and adventurous


Thetouts can get

your tests done quicklyfor a fee, get you a bed

despite the hospital staff tellingyou that all are occupied, fix upappointments with doctors for acharge, help you get medicines

by overcharging, and even provide blood bottles in a jiffy.

—The Hindustan Times,Ranchi, June 13, 2015

Theyoffer ‘help’ in getting

an appointment, and haverecords examined and signed

by the doctors. Many touts haveacquaintance with doctors and

knowledge of the functioning of thehospital. People in the country pay`2,017 crore a year as bribes in

government hospitals. —Divya Ramamurthi andRaghava M., The Hindu,

May 31, 2000

Withtheir vast network

among hospital staff, thetouts can get your tests done

in a day, get you a bed despitethe authorities telling you that all

are occupied, help you navigate thecomplex buildings, and make sure

your stay in the hospital is comfortable.

—Mail Online India, Jan 25, 2015

IL

and government institutions knows aboutthese touts who operate in their facilities, butthey are helpless. It does not really botherthe private hospital which of their consult-ants gets the patients, as long as they arebeing seen in the hospital. In fact, if theynurture and support a consultant with aneffective (marketing) team, it is more thanlikely that this person will also pull in busi-ness for the hospital from its competitors.Given a choice between ethical doctors who,in the eyes of the management, are lazysinecures, simply waiting for patients toshow up so they can give their professionaladvice, and doctors who are sufficientlymotivated to walk an extra mile to getpatients to the hospital and encourage themto get admitted and have operations (some-times unnecessary), every hospital managerin India knows which one to choose. Healthcare is a business, and it has to be run like one.

It probably started with owners of nursinghomes and hospitals who cannot survivewithout a regular stream of patients. Theiroutgoings are fixed and the business will losemoney if each bed does not have a patient init at any given point of time. (Hospitals use atechnical term called bed occupancy rates toexpress this.) Under these circumstances, itpays to have as large a pool as possible of mar-keting executives (that is, touts) to tappatients from as wide an area as possible....

Touts know the system. Babus in govern-ment offices will not even entertain youbecause what they can’t ask for openly, thesetouts will do for them. This applies to doctorstoo. These touts keep our officers and doctorssafe from the dirty details. They put them-selves in the firing line to protect those sittingin big offices and lavish chambers.... Theyhelp our systems function smoothly despiteall the underlying imperfections. The babuswho are actually employed to do the job areable to enjoy morning tea in office, read news-papers, and also simultaneously increasetheir income, while a parallel army of toutsdoes all the work. Doctors are able to concentrate on patients while touts take careof the business of attracting business. Such innovative Indian solutions for Indianproblems!

amongst these develop significant networkswithin the system and of course do muchbetter. They know how patients turning upat a hospital can be deflected to theirpatrons. If a certain Dr Singh, in a privatehospital in New Delhi, is wondering whynobody ever comes to his clinics, he onlyneeds to send a decoy disguised as a patientto the receptionist in the hospital or to anyothers who have taken it upon themselves toguide patients in finding somebody whomthey can work with. If the hospital receptionnever puts any patient through to the tele-phone line in Dr Singh’s room, it is possiblethat the receptionist has been asked to divertall calls to a different number, or it may evenbe that the telephone ringer is turned off. Ifyou think about it, these people are moreingenious than some of the doctors whooccupy these rooms. What a waste of talentthough! The management in both private


There is no shortage of people who will do anything for you for any wage. For a monthly

salary of `10,000 or `20,000, you can hire anynumber of ‘marketing executives’....

THE ETHICAL DOCTOR Author Dr Kamal KumarMahawarPublisher HarperCollinsPages: 256; price: `350

BOOKS

WHERE HOSPITALITYMEETS HOSPITAL DUTIES

Hospital setups now offermost luxurious environs

1. DishabilleA: To cleanB: Untidily dressedC: TornD: Physically challenged

2. ArcaneA: Understood by fewB: A gasC: BeautifulD. Bitter

3. Grim ReaperA: Notorious gangster B: Famous singer C: Old ageD: Death

4. Hot under the collarA: RepentantB: SufferingC: Very angryD: Arrogant

5. Dry as a bonelA: PennilessB: ExhaustedC: ReadyD: Extremely thirsty

6. For the hell of itA: For punishment B: Just for fun C: As a last attempt D: For inviting trouble

7. Fish taleA: Fairy tale B: A big lie C: Priceless

D: Sob story

8. For the birdsA: WasteB: UnimportantC: UnhygienicD: Secret

9. Chuck it downA: Rain heavilyB: Toil C: Cancel D: Shut

10. On the off chanceA: ImpossibleB: UnfortunatelyC: Just in case D: Suppose

11. No spring chickenA: Not a foolB: No longer youngC: VegetarianD: Not clever

12. Big white chiefA: BossB: Very rich personC: PoliticianD: Doctor

13. SoireeA: MistakeB: Slip of tongueC: StyleD: Evening gathering

14. Clever clogsA: Very cleverB: Stupid

C: Great ideaD: Obstacle

15. Hit the ceilingA: Become very angryB: DieC: KillD: Do the best

16. Fat catA: Lot of moneyB: GrandmotherC: BuffaloD: Rich, powerful person

17. RagA: RebukeB: MoneyC: Low-quality newspaperD: Beggar

18. Kick one’s heelsA. Be kept waitingB. Quit jobC. AbuseD. Surrender

19. Love to bitsA: Love hesitantly B: Love a lotC: Hate D: Ready

20. Correct spelling?A: Milennium B: MilleniumC: MilenniumD: Millennium

1. Untidily dressed2. Secret3. Death4. Very angry5. Extremely thirsty6. Just for fun7. A big lie8. Unimportant9. Rain heavily

10. Just in case11. No longer young12. Boss13. Evening gathering14. Very clever 15. Become very angry16. Rich, powerful person17. Low-quality newspaper18. Be kept waiting19. Love a lot 20. Millennium

SCORES

0 to 7 correct—Youneed to do this more

often. 8 to 12 correct—Good,

get the Scrabble board out.

Above 12—Bravo! Keep it up!

Have fun with English. Get the right answers. Play better Scrabble.

By Mahesh Trivedi

WORDLY

WISE

[email protected]

ANSWERS



The New CurrencyWITH one stroke of his Mont

Blanc pen, the prime minis-ter has welcomed us to a new

India. God created the perfect world inseven days, ours will take a little longer-—50 days. While the nation takes noteof the change or changes its notes, it hasspawned an entirely new vocabulary.Here are the most popular.

AD/BC: Used to stand for Anno Dominiand Before Christ, the dating systemthat separated the old and the new.Now, it stands for “After Demonetiza-tion” and “Being Cashless”, also meantto separate the old from the new.

BFF: One of the most visible changesdemonetization has wrought can beseen on social media, where correctionshave taken place regarding the identityof BFF, or Best Friends Forever. Lovers,college mates or colleagues have hastilybeen replaced by RM, as in theRelationship Manager at your localbank. Never have so many owed somuch to so few.

PrayTM: Paytm may be raking in themoney, but most people are nowswitching to PrayTM, which is the holyritual they perform every day in frontof ATMs hoping for a miracle that willallow it to disgorge some cash. ATMshave been garlanded and have had holy water sprinkled on them accom-panied by religious chants, the mostcommon being “May (His) dispensa-tion prevail”.

Cashualty: Refers to themillions who have becomevictims of the suddenmove to a cashless society,with close to 90 peopledying of shock, commit-ting suicide or from med-ical problems associatedwith endless hours ofstanding in a queue.Cashualty figures areexpected to rise.

OK Tata: This was the mostvisible slogan across India, stamped onthe back of Tata trucks and goods carri-ers. It has now been replaced by a morevisible slogan: “No Cash” which hasbeen plastered across ATMs and bankentrances since November 8. In a liter-al sense, it means the same as OK Tata.

Sideways Mobility: Post-demonetization,the most popular mass movement hasbeen the sight of cards being swiped onPOS machines. It has introduced a newphrase in business schools—sidewaysmobility.

Black Buck: Used to refer to an antelopefound in India and Nepal. Now, itrefers to illegal notes, which, post-demonetization, are on the endan-gered species list.

Withdrawal Symptoms: The agonizingprocess of de-addiction. Nowadays, itrefers to the agonizing feeling of notbeing able to withdraw your own

money from your own bank.

Standing: Used to refer to the stature ofan individual in society. Now, itdescribes the position the entire coun-try is in as it waits to gain entry to abank or an ATM booth.

Daily Wager: The person who isemployed and paid on a daily basis.Post-demonetization, daily wager is thegamble you take every day in trying toget hold of some cash.

Cashless Society: Also titled Cheque deIndia, which describes the situation thecountry is in, thanks to the RBI beingunable to match supply and demand.

Mitron: It used to mean “friends”, aphrase used frequently by Modi. Now,the urban dictionary describes it as alarge group of unsuspecting peopleabout to be hit by something they willtake a long time to recover from.

UdayShankar

SATIRE/ DILIP BOBB

.

News & Politics

India Legal 31 December 2016