india legal 03 april 2017

Chief Justice Jagdish Singh Khehar has tossed the Ram Mandir-Babri ball back into the laps of

community leaders to try again for a non-legal solution even as tensions mount

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ITelecom Wars: Survival of the Biggest

Donald Trump: Looming Constitutional Crisis

OLLOWING the BJP’s stunning electoralvictory in Uttar Pradesh, several politiciansand public figures have raised the issue ofrigged electronic voting machines (EVMs)and manipulation of postal ballots. Critics

argue that when suspicions arose, the ElectionCommission (EC) could have intervened, failingwhich, aggrieved candidates could haveapproached the courts for redress.

There are endlessly confusing arguments aboutthe powers, or lack of them, of the EC. Without get-ting into the merits or demerits of these accusa-tions, one thing is abundantly clear. The law, asinterpreted by the Supreme Court, clearly lays outthat the EC has colossal discretionary powers—which it must use in the interests of preservingdemocracy—to postpone and reschedule electionand order re-polls. But it has to see the electoralprocess to its conclusion and announce the resultsthereafter. Candidates with grievances of any sortcan resort to only one remedy available to them—filing an election petition after the process is com-plete. Even the high courts should be wary of

entertaining appeals mid-way notwithstandinghow compelling their arguments are.

These principles were laid down in anexceptional Supreme Court judgment

penned in 1978 by the venerable KrishnaIyer in a bench comprising Justices M

Hameedullah Beg, PN Bhagwati, PK Goswami andPN Shingal (Mohinder Singh Gill vs Chief ElectionCommissioner).

On March 22, 1977, the Chief ElectionCommissioner received a wireless message fromthe Returning Officer of Punjab’s Ferozepur parlia-mentary constituency: “Mob about sixteen thou-

sand by over powering the police attacked thecounting hall where postal ballot papers were beingcounted. Police could not control the mob beingout numbered. Part of postal ballot papers except-ing partly rejected ballot papers and other electionmaterial destroyed by the mob.”

The CEC ruled “… as a consequence it is notpossible to complete the counting of the votes inthe constituency and the declaration of the resultcannot be made with any degree of certainty.” Evenas the EC was mulling a repoll and recount, Gillapproached the CEC to revoke the order and todeclare the result of the election, but without suc-cess. He then appealed to the High Court arguingthat the EC had no jurisdiction to order a re-poll ofthe entire parliamentary constituency; the orderwas violative of the principles of natural justice asno opportunity of a hearing was afforded to theappellant before passing the order.

The matter was ultimately referred to theConstitution Bench of the Supreme Court,which said in a final ruling: “We are clearly

of opinion that the Election Commission is compe-tent in an appropriate case to order repoll of anentire constituency where necessary. It will be anexercise of power within the ambit of its functionsunder Article 324. The submission that there iscomplete lack of power to make the impugnedorder under Article 324 is devoid of substance.Such an order, relating, as it does, to election withinthe width of the expression as interpreted by thisCourt, cannot be questioned except by an electionpetition under the Act.”

In this observation, the Court reiterated thefamous N.P. Ponnuswami v. Returning Officer,

F

PREGNANT PROBLEM OF POWER

Inderjit Badhwar

Letter From The Editor

4 April 3, 2017

Nanmakkal Constituency & Ors. 1952 case: “TheRepresentation of the People Act provides for onlyone remedy, that remedy being by an election petition to be presented after the election is over,and there is no remedy provided at any intermedi-ate stage.”

“The super-authority,” said the Supreme Courtin the Gill judgment, “is the Election Commission,the kingpin is the returning officer, the minions arethe presiding officers in the polling stations and theelectoral engineering is in conformity with the elab-orate legislative provisions.”

Further: “If the grounds on which an electioncan be called in question could be raised at an earli-er stage and efforts, if any, are rectified, there willbe no meaning in enacting a provision like article329 (b) and in setting up a special tribunal. Anyother meaning ascribed to the words used in thearticle would lead to anomalies, which theConstitution could not have contemplated, one ofthem being that conflicting views may be expressedby the High Court at the pre-polling stage and bythe election tribunal, which is to be an independentbody, at the stage when the matter is brought upbefore it."

The Court, in reminding us all that constitu-tional and statutory remedies exist and must be

pursued, made a telling observation: “The pregnantproblem of power and its responsible exercise isone of the perennial riddles of many a modern con-stitutional order. Similarly, the periodical process offree and fair elections uninfluenced by the caprice,cowardices or partisanship of hierarchical authorityholding it and unintimidated by the threat,tantrum or vandalism of strong-arm tactics, exactsthe embarrassing price of vigilant monitoring.Democracy digs its grave where passions, tensionsand violence, on an overpowering spree, upsetresults of peaceful polls, and the law of elections isguilty of sharp practice if it hastens to legitimize thefruits of lawlessness. The judicial branch has a sen-sitive responsibility here to call to order lawlessbehaviour. Forensic non-action may boomerang,for the court and the law are functionally the body-guards of the People against bumptious power, official or other.”

[email protected]

WELL-DEFINED POWERS(L-R) The ElectionCommission of Indiabuilding in Delhi, Pollingofficers checking EVMs

The SC-interpreted law says that the EC has powers to postpone, reschedule election and order re-polls. But it mustsee the electoral process to its end and announce the results.

| INDIA LEGAL | April 3, 2017 5

Anil Shakya UNI

Contents

Conflict ResolutionThe Chief Justice of India offers a negotiated settlement to the Ram Mandir-Babri Masjiddispute, but with tensions on the rise, can it work out?

16LEAD

VOLUME. X ISSUE. 20

APRIL 3, 2017

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6 April 3, 2017

Unravelling the RiddleAn analysis of the 137-year-old dispute shows why the Muslim community should be magnanimous enough to accept the verdict of the Allahabad High Court

20

Safeguard against InjusticesA Private Member’s Bill by Shashi Tharoor promises remedies against all sorts of discrimi-nation. But will it convince the political class enough for it to be passed in parliament?

22ACTS & BILLS

R E G U L A R S

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Ringside............................8Delhi Durbar......................9Courts .............................10Briefs...............................14Media Watch ..................48Satire ..............................50

Cover Design & Illustration: ANTHONY LAWRENCE

ConstitutionalCrisisWill the links between the Russians andthe US president hit America at its core?Will the compromised material Putin hastrigger Trump’s resignation?

46


A Question of VeracityThere are numerous cases of men being falsely implicated by women and it isonly the courts that can offer succor

GENDER

GLOBAL TRENDS

38

How to Clean a CityA landmark judgement has issued guidelines for waste man-agement which could serve as a template for the entire country

30 Mega EntityThe Vodafone-Idea merger has led to the birth of India’s largest telecom entity.Will it lead to a duopolistic market with the consumer being squeezed?

40TELECOM

Abdicating Responsibility? The new national health policy is tilted in favour of the privatesector, a clear departure from the established norm

26HEALTH

Right Person for the JobThere are several points to be factored into the MoP forappointment of judges for quick clearance of case backlog

24LEGAL EYE

Is This Life?Though the Uttarakhand High Court has granted “living entity”status to the Ganga, political will is imperative to save it

ENVIRONMENT

28

For God’s SakeThe murders of atheists like H Farook show how their constitu-tional rights are unprotected while their killers go scot-free

CRIME

36

Pee and PayCan the government make it mandatory for restaurants to giveaccess to the public to their toilets based on Article 15(2)?

SOCIETY

34 Ghost in the MachineCan EVMs be manipulated? That’s the question that Mayawati and the BSPposed before the Election Commission, post-UP assembly election

42MY SPACE

Teach, Don’tIndoctrinateA proposed state-run TV channel aims toeducate the public on legal issues. It canserve its purpose only if it does notbecome a mouthpiece of the government

44MEDIA

8 April 3, 2017

“

RINGSIDE

There is no need to make humble requests anymore, as the basic reason for which members

get elected is to attend parliament.

—Prime Minister Narendra Modi, interrupting parliamentary affairs minister Ananth Kumar who was

requesting MPs to attend parliament

There is nothing unethical.The word unethical comesinto picture when youindulge in horse-trading ofpeople from other politicalparties…. In a hung situa-tion, to form a governingcoalition post-election is anecessity of democracy.

—Goa CM ManoharParrikar, on the BJP beinginvited to form the govern-ment, in The Times of India

It is clearly the RSS agen-da and UP is the newexperimental field for it….This gentleman has acriminal record. Severalcharges like rioting andmore serious offences areagainst him in variouscourts in UP. Then whythis rhetoric of endingcriminalisation?

—CPI (M) leader BrindaKarat, in FirstPost

One should not raisequestions about a chiefminister barely a day after he takes charge. Iwill not speak a singleword against him for six months.

—Samajwadi PartyGeneral Secretary RamGopal Yadav, talking aboutUP Chief Minister YogiAdityanath with mediapersons

It is now clear… that thebeliefs and approach toleadership that have guid-ed my career are inconsis-tent with what I saw andexperienced at Uber, and Ican no longer continue aspresident of the ridesharing business.

—Outgoing Uber Prez Jeff Jones, in a statementciting reasons for resign-ing from the company

If you intend to fight,fight the newspaper andtelevision. Let go of yourstubbornness to salvagejournalism. Journaliststhemselves do not wantto be saved!

—NDTV anchor RavishKumar, receiving KuldipNayyar Award forJournalism in recognitionof his “outstandingjournalism”

Just one advice, startrespecting human beingsalso apart from animals.All are not as successfulas you are. All are not astalented as you are…Youare the wittiest, and thebest in your field. Butdon’t act like a ‘God’.

—Comedian Sunil Grover,on a popular show hostKapil Sharma’s outburstagainst him, on Twitter

There are two spins being given at the partyheadquarters on Akbar Road to theCongress debacle in UP. One school holdsRahul Gandhi (right) completely responsibleand recommends a major surgery at the topif the Congress is to revive. But there are oth-ers who blame it all on Prashant Kishor, thewiz-kid strategist who forged the mahagat-bandhan between the Congress and the SP.After the results, Kishor has literally becomean untouchable with Congress chief ministersof Karnataka and Himachal Pradesh sayingthey don’t require his services when assem-

bly elections are due next year. Meanwhile,the buzz is that the Samajwadi Party may notpay for the “disservice” rendered by Kishor,adding to his woes. TheCongress, it is learnt, willclear the 60 percent shareit owes him, but Akhileshmay not cough up theother 40 percent. Moralof the story: thosewho work forpolitical partiesmust take theirmoney inadvance.

Delhi DurbarAn inside track on

happenings in Lutyen’s Delhi

It seems incredible, but just one remote district in Pauri-Garhwal in Uttarakhand hasproduced a contemporary power list that isimpossible to match. That list includes thecurrent National Security Adviser, Ajit Doval

(left), the newly-elected chief ministerof the state, Trivendra Singh Rawat,as well as his predecessor, HarishRawat, the current army chief, BipinRawat, the recently appointed chief ofIndia’s external intelligence agency,the Research & Analysis Wing(R&AW), Anil Kumar Dhasmana, andthe Director General of MilitaryOperations (DGMO), General AKBhatt. Collectively, considering theinstitutions they head, they are easilythe most powerful group in the gov-ernment. And to think they all belong

to a district which has a population of just fivelakh! The buzz is that Doval may be the manpushing his jaatbhai—he has control overR&AW, the army chief superseded two othersand the DGMO (Bhatt has just taken over)plays a key role in dealing with Pakistan andcross-border surgical strikes.


One man whose politicalfortunes seem on thedownside is Home MinisterRajnath Singh (left). Thefact that his name wasbeing mentioned in thecontext of a shift to thechief minister’s bungalow inLucknow immediately afterthe election results wereout, suggested that his role

as head of the home min-istry could be under threat.That was followed by thefact that his son, Pankaj,who had won handsomelyfrom Noida in his debutassembly election, was noteven considered for a postin Yogi Adityanath’s ministryeven though other first-timers like Srikant Sharma

and Siddharth Nath Singhgot in. Sharma is said to bea loyalist of FinanceMinister Arun Jaitley, whileSN Singh owes his politicalclout to BJP chief AmitShah. Even during the wildcelebrations by the BJPafter the election results,Rajnath stayed in the background.

A tweet by maverickpolitician SubramanianSwamy (above) whenvotes were beingcounted for the UPelections raised manyeyebrows. It said: “Ithink Mayawati will pulloff a Donald Trump.”The correction onlycame a few hourslater: “I had intendedto say Namo, insteadby oversight, I saidMayawati.’’ As a manwho tweets obsessive-ly, it’s difficult to imag-ine him misspellingMayawati for Namo.

COMEDY OFERRORS

HOME OR OUT?

PAURI POWER

THE FALL GUY

The Supreme Court agreedwith the contention of the

Competition Commission ofIndia (CCI) that telecastingdubbed serials of films inBengali was not illegal andattempting to disrupt theirtelecast was against theCompetition Act 2002.

The CCI had gone toCourt against a decision ofthe Competition AppellateTribunal supporting a moveby Eastern India MotionPicture Association (EIMPA)and Coordination Committeeof Artists and Technicians ofWest Bengal Film and Tele-vision Investors. They hadasked TV channels in WestBengal not to show theMahabharat serial, dubbed inBangla. Doing this, they felt,was against the interests ofthe film and TV industry inWest Bengal. In their com-munication to the channelsthey also cited the old andaccepted trend in the statenot to telecast serials dubbedin Bangla.

Two of the TV channelowners went to CCI afterEIMPA and the other commi-ttee said that they wouldwithdraw their support if the channels did not fall inline. CCI had challenged the tribunal’s stand in theapex court.

Telecastingdubbed serialsnot illegal

To provide relief to people restricted by the Specified Bank Notes Cessa-

tion of Liabilities Ordinance from depo-siting `500 and `1,000 notes afterDecember 31, 2016, the Supreme Courtasked the centre and RBI if they werethinking about giving them anotherchance to do so by March 31, 2017. The ordinance became operational onDecember 31, 2016.

The top court wanted to know whythe centre didn’t think of allowing peoplewith “real problems” to deposit bannedcurrency by March 31, 2017, when it didthe same for NRIs and people stayingabroad. It pointed out that the PM him-self had given an assurance on Nov-ember 8 that demonetised currencycould be deposited by March 31, 2017,

at RBI branches all over India. The centreshould have taken cognizance of hisassurance, it felt.

The centre was asked to file itsresponse by April 11. The Court wasresponding to a plea which alleged thatdespite the PM’s promise and the RBI’snotification, the ordinance was imposed.

The counsel for the centre arguedthat law was above the PM’s promiseand the earlier RBI notification and noth-ing could be done.

Extending the bannednotes deadline

The Supreme Court not only put itsseal of approval on the Calcutta High

Court order asking for a CBI probe intothe Narada sting case but also extendedthe timeframe of the probe to one month.The Calcutta High Court had asked theCBI to submit a preliminary enquiry into

the sting operation done by NaradaNews, within 72 hours. The sting hadshown ministers of Trinamool Congressaccepting bribes for favours. As permedia reports, CBI had already comple-ted the preliminary enquiry.

The Bengal government had rushed tothe top court after the March 17 HighCourt verdict arguing that the probe wou-ld be unfair and motivated as the CBIwas under the NDA government’s con-trol. It also questioned the high court’s

intention in asking for a CBI probe,although it later apologised profusely.

The state government was readyfor a SIT probe overseen by theSupreme Court. The top court struckdown the plea, but gave the assur-ance that if doubts arose over theveracity of the CBI probe, the HighCourt would be asked to monitor it. It observed that doubting the inten-tions of the CBI wouldn’t be proper as it was a premier agency of thecountry. The report of the prelimi-nary enquiry could always be challenged in courts, the top cou-rt observed.

Courts

10 April 3, 2017

No relief forMamata

AGurugram court handed out life sen-tences to 13 accused in the murder of

Awanish Kumar Dev, the general manager(human resources) of the Maruti Suzukiplant in Manesar. Apart from the 13, fourmore were given five-year imprisonment,with 14 others, accused in rioting, injuringofficials and the murder in the plant beingfined and released. The accused hadalready served four years in detention, sothey had one year left.

In August 2012, when disciplinary act-ion was taken against a worker at a facilityof the plant, employees got agitated andwent on the rampage. They torched a partof the factory in which the manager,Awanish Kumar Dev, was present at thetime. The workers had not stopped at that.They assaulted 100 others, bludgeoningthem with rods. The wounded includedsome foreigners and policemen.

Maruti murder case

APIL to double the number of judges athigh courts was set aside by the

Supreme Court as it felt that the existingvacancies needed to be filled beforehand.According to reports, the 24 high courtshave a sanctioned strength of 1,079 judgesbut are operating with 624 judges.

The PIL pointed out that such a movewas necessary to ensure time-bound deliv-ery of justice. The Court felt that the pleawas redundant but agreed to send the PILto a committee which discussed ways toexpedite the judicial process.

PIL on judges struck downKarnataka was directed by the Sup-

reme Court to continue releasing2,000 cusecs of water from the Cau-very river to Tamil Nadu till it took afinal call on all pleas (from Karnataka,Kerala and Tamil Nadu) on the CauveryWater Dispute Tribunal order, afterhearing them from July 11.

Tamil Nadu and Kerala were in thetop court over the sharing of Cauverywaters. While Tamil Nadu alleged thatKerala was flouting the Tribunal’s

orders for building check dams, Keraladenied that water from the Cauveryriver was being used for the purpose.

The Court, however, sought anundertaking from Kerala on this but didnot pass orders to stop the construc-tion of check dams.

Cauvery Tribunalorders to stay

ALudhiana farmer has been com-pensated for the loss of his land in

kind. The Railways had acquired apiece of Sampuran Singh’s land forlaying a track but he felt he hadbeen underpaid. He approached atrial court in 2015 and won thecase for enhanced compensation of`one crore. But when the Railwaysstill didn’t pay him, he filed anappeal. Additional Session JudgeJaspal Verma not only ordered theSwarn Shatabdi train running

between Delhi and Amritsar to thefarmer, he also gave the farmer own-ership of the station master's office in Ludhiana.

The Railways sought further timeto pay the compensation, and thecourt has agreed to give it threeweeks’ time, till April 7.

The Supreme Court was told that thetanks used by the priests of the

Sree Padmanabhaswamy Temple inThiruvananthapuram to bathe (beforeperforming daily rituals) were filthy,with sewer being released into them

from areas close by. The amicus curi-ae, Gopal Subramaniam, also pointedout that the principal deity needed tobe restored and the roof of the sanc-tum sanctorum fixed.

Taking strict cognizance of thefeedback, the Supreme Court orderedthe Kerala Water Authority to stop theflow of sewer into the tanks by May15. It also asked the temple adminis-tration to invite expressions of intentfrom experts to do the other jobs,including cleaning up of the tanks byApril 17. The Court would then lookinto these applications and decide howthe work will be shared.

Repair Kerala temple


Train as compensation!

The Supreme Courthas said that a larger

bench should examinethe process of designat-ing senior advocates.This was consideringthe importance of theissue and the effect itmay have on advocatesif the Court gave a ver-dict. It decided to placethe matter before thechief justice of India sothat a larger benchcould be constituted.

Former additionalsolicitor general, Indira

Jaising, hadobjected to thecurrent systemadopted by highcourts and theSupreme Court.She alleged thatit was unconsti-tutional, unfair,opaque and

exclusive. Jaising hadapproached the Court inJuly 2015. She felt thatpromising lawyers didnot get the designationand the voting systemunder secret procedurewas riddled with inten-sive lobbying. Jaisingpleaded for fresh anduniform rules in thematter.

The Bar Associationwanted the old systemto continue till the apexcourt reached a conclu-sion but the NationalLawyers’ Campaign forJudicial Transparencyheld the view that itcouldn’t be allowed.

Advocates’matterbefore CJI

The case relating to postingof objectionable videos ofwomen and children on

social media went a step furtherin the Supreme Court. Afterinternet companies still showedhelplessness in blocking suchcontent, the Court formed acommittee led by additional secretary in the Ministry ofElectronics and IT. It would alsohave home ministry officials andan advocate, Aparna Bhatt.

But most significantly, Goo-gle, Microsoft, Yahoo and Face-book were asked by the Court to depute experts to attend ameeting with the committee for15 days from April 5 to April 20.According to the Court order,the head of the committee wasalso asked to submit a report onthe deliberations. The hearinghas been postponed to April 24.

The apex court is lookinginto various aspects of the mat-ter for more than a year now ona petition filed by Prajwala, anNGO in Hyderabad.

Committee on offensive videos

— Compiled by Prabir Biswas

Courts

Why were welfare schemes of the gov-ernment like the Mahatma Gandhi

National Rural Employment GuaranteeScheme (MGNREGS) and the National Food

Security Act not being takenseriously by states hit bydrought, the Supreme Courtwondered. It asked the chiefsecretaries of all these states toappear in court and give anexplanation on April 26. TheCourt had earlier asked thestates to set up a foolproof sys-tem that worked in implementingthe schemes.

The centre was also asked to inform theCourt about its efforts to make MGNREGSeffective in these states in a detailed report.The Court’s remark came after it noticedcertain loopholes related to man-days ofworkers involved in the scheme.

The Supreme Court agreed thatpension, allowances and perks

given to former MPs and MLAswere indeed questionable at facevalue. It wants proper guidelines tobe framed in this regard and hasreferred the matter to the centreand the secretary generals of theLok Sabha and Rajya Sabha, theElection Commission and theattorney general.

The Court was responding to apetition from NGO Lok Prahari wh-ich had objected to such “need-less” benefits, and wanted it topass an order to cancel them. Itpointed out that money for thesebenefits came from ordinary, tax-paying citizens’ salaries.

The NGO’s plea was earlierstruck down by the AllahabadHigh Court. The top court had alsoasked advocate Kamini Jaiswal toassist in the case, and she raisedmany significant points: a) moneyfor pension given to erstwhile legislators came from the Conso-lidated Fund of India, to whichthey did not contribute; b) a majority of legislators were toorich to depend on pensions; c) there was no legal process tosift or scrutinise the facilities; d) uncalled for changes had beenmade over the years in the con-cerned act to suit MPs.

Examine facilitiesfor former lawmakers

12 April 3, 2017

Explanation soughtover welfare schemes

Courts/ Lawyers’ Protest

HE Bar Council of India(BCI) has withdrawn its rec-ommendations to the LawCommission of India seek-ing a ban on lawyers going

on strike and imposing tough penalties(fines and suspension of licenses) onthose who seek to defy the rule. One ofthe recommendations was tough actionagainst lawyers who keep away fromappearing in courts and for other defi-ciency of services.

BCI president Manan Kumar Mishrawas forced to take this step after lawyersin Delhi did not attend courts as a markof protest and instead, assembled out-side BCI’s office in Delhi on March 23.They took objection to BCI’s sugges-tions, claiming it was an infringementon their rights and their freedom wasbeing restricted. The strike was called bythe lawyers’ coordination committee ofthe All District Court Bar Associations.

Mishra assured the lawyers that the

recommendations had been withdrawn,and said that he had to take this stepkeeping their sentiments in mind. Hepointed out that the Delhi BarAssociation’s demands could not beignored as it had always supported BCIand was very active. He said that it wastime that members of the Delhi BarAssociation, other such associationsacross India sat down together to evolvea consensus on the issue.

Mishra said that the Law Commi-ssion had sent a different set of sugges-tions on penalising errant lawyers to thelaw ministry despite withdrawal by theBCI. He said that no suggestions couldbe accepted which did not have thesanction of bar councils and bar repre-sentatives. Government nominees bythemselves could not decide arbitrarilyon the action to be taken againstlawyers, he stressed.

A countrywide agitation by lawyerswould take place in case the LawCommission did not retract, he said.

CORRUPT SYSTEMRajiv Khosla, former president, DelhiHigh Court Bar Association, who spear-headed the strike, was livid when askedabout the action taken by the LawCommission. He told India Legal: “TheLaw Commission can only recommendand even its earlier recommendationshave been struck down by the govern-ment.” Supporting the strike called by

the lawyers, he said: “The interests oflawyers need to be protected from abiased, corrupt and high-handed legalsystem. We are only fighting for therights of litigants and the public are vic-tims of the current judicial system.”

Hitting out at the Law Commission,Khosla said: “The Law Commission isheaded by a retired judge of the Sup-reme Court and it wants to ensure thatlawyers remain mere puppets in thewhole scheme of things. The judiciarywants to suppress lawyers and throttletheir voice.” Lashing out at the judicialsystem, he said: “Lawyers have to bearthe brunt of a system that smacks ofcorruption, nepotism and other ills.They are squarely blamed for all themalaise in the system. The situation isdeplorable, to say the least.”

He lamented that the governmenthad looked the other way instead oftackling the issue. “The government isscared of the judiciary; an effectivemechanism needs to be evolved to tackleproblems.” When asked what would bethe next step if the Law Commissiondoes not withdraw its recommenda-tions, Khosla warned: “An all-Indiastrike by lawyers would follow and wewill ensure that all judicial work comesto a standstill in India.”

GatheringStormAn attempt by the Bar Council of India toact tough against these professionalsgoing on strike was thwarted when theywarned of an all-India protest By Prabir Biswas


T

ON THE SAME PAGE: (L-R) BCI PresidentManan Mishra and former president of DelhiHigh Court Bar Association Rajiv Khosla

Despite the withdrawal of suggestions by theBCI, the Law Commission submitted its ownrecommendations to the government

Briefs

The Election Commission hassupported the demand for a

lifetime ban on contesting polls forthose candidates who have beenconvicted in criminal cases. The EC

was responding to a PIL by DelhiBJP spokesperson Ashwini KumarUpadhyaya in the Supreme Court.The EC is in favour of setting upspecial courts to decide criminalcases involving people's representa-tives, public servants and membersof the judiciary. As of now, convictsare debarred from contesting for sixyears after serving their sentences.

The SC-mandated EnvironmentPollution Control Authority, in

consultation with the CentralPollution Control Board, has pro-posed in a draft plan for air pollutioncontrol that parking on footpaths bemade a cognizable offence and vehi-cles be impounded for severe parkingviolations. Among “short term”measures, it seeks raising parking-related fines to 10 times the presentamount. The draft plan also suggests

that parking areas be demarcatedand equipped with metering sys-tems, signages and IT for informa-tion on parking availability to reducecruising time and on-street manage-ment.

The Jat agitation in the nationalcapital region has been suspend-

ed for a fortnight following assur-ances by Haryana chief minister ML

Khattar even as dharnas continue todisrupt life in the state. The commu-nity demands inclusion in the OtherBackward Classes (OBC) list whichwould give them reservation in edu-cation and jobs. A law was passed bythe Haryana assembly on March 29last year in the wake of the Jat agita-tion, providing 10 percent quotas ingovernment jobs for Class III and IVposts and six percent reservations inClass I and II posts to them.However, the High Court had stayedit in May.

Will parking on footpathsbe an offence?

New CBSE format

for VI-IX classses

The Central Board of SecondaryEducation has replaced its con-

tinuous and comprehensive evalua-tion scheme for classes VI-X with a“uniform system of assessment,examination and report card”. Thenew format, a “gradual movementtowards quality education throughstandardisation of teaching, assess-ment, examination and report card“,will require schools to adhere to theCBSE’s template. These range fromexams to report cards, which willbear the logo of the board. Thechanges being brought in are linkedto the restoration of the Class Xboard exams from 2018, Boardchairperson RK Chaturvedi has said.

Cabinet clears fourGST Bills

The Union Cabinet has clearedfour supporting GST legislations,

paving the way for their introductionin parliament. The CompensationLaw, the Central-GST (C-GST),Integrated-GST (I-GST) and UnionTerritory-GST (UT-GST) would beintroduced as money bills. While theState-GST (S-GST) has to bepassed by each of the state legisla-tive assemblies, the four other lawshave to be cleared by parliament.“With the Cabinet approval of thesefour bills, the GST regime in India isin the final stages of culminationand the GST law will most likely beimplemented from July 1, 2017,” thefinance ministry said.

Jat stir called off for now

EC ban on convicts

14 April 3, 2017

Anil B Divan, senior advocate, consti-tutional expert and one of the most

respected members of the SupremeCourt bar, passed away on March 20.He was 86. The father of eminentSupreme Court senior advocate ShyamDivan, Anil was yet to hang up hisgown, having appeared in the Cauverywater disputes as counsel for the gov-ernment of Karnataka. He had recentlybeen appointed by the Supreme Court toreplace Fali Nariman as amicus curiaein the BCCI case. A founder of theCentre for Public Interest Litigation inthe 1980s, he appeared in many land-mark cases, including the Jain hawalacase, the Oleum gas leak case, theBhopal gas tragedy case, the case chal-lenging the Prevention of Terrorism Actand Rupa Hurra vs Ashok Hurra case,in which the law relating to curativepetitions was set out. He also appearedin the NJAC case and had been amember of the Committee on Judicial Accountability.

Legal luminary Anil Divanpasses away

The CBI has arrested the chairman-cum-managing director of public

sector enterprise Engineering ProjectsIndia Limited (EPIL), SPS Bakshi. Itstwo executive directors have also beenheld. They were caught taking a bribe of` 10 lakh. CBI spokesperson RK Gaursaid a case was registered against thetrio and a Raipur-based company forcriminal conspiracy. The bribe wasreportedly sought from the company inexchange of a contract for a project in Odisha.

PSU officers in CBI net


Women employees in the centralgovernment, who file com-

plaints of sexual harassment at theworkplace, can now claim up to 90days of paid leave during pendency ofthe inquiry. The special leave will begranted on the recommendation ofthe internal panel probing the chargesand will be in addition to leave givento central government employees. Themove comes amid complaints of theaccused trying to threaten survivors.

The government has proposed to makethe Aadhaar number mandatory for

filing income tax returns and while apply-ing for a new Permanent AccountNumber (PAN) from July 1. According tothe new provisions in the finance bill, tax-payers must link their PAN cards with theAadhaar numbers or else these will bedeemed invalid. Those not havingAadhaar cards as of now must submittheir enrollment numbers. The movecomes after the labour ministry made thelinking of Aadhaar cards with employeeprovident fund (EPF) accounts mandato-ry in January despite an order to the con-trary by the apex court.

On March 23, the centre justified thestep with Finance Minister Arun Jaitleysaying it was necessary to plug evasion

and fraud and the UID could eventuallyreplace other identity cards such as PANand voter ID. Mentioning that 98 percentof Indian adults, or 108 crore people, havesuch a card, Jaitley said: “We can't allowpeople to say ‘I won't apply for Aadhaar,but through multiple PAN cards will con-tinue to evade taxes’.”

The Enforcement Directorate has attached assetsof controversial Islamic preacher Zakir Naik and

others, worth `18.37 crore. These were in the form ofmutual funds, properties and bank balance. Themove is in connection with the money launderingprobe against Naik. The agency issued a provisionalorder under the Prevention of Money Laundering Act attaching mutual funds worth about `9.41 croreand five bank accounts containing deposits worth`1.23 crore in the name of Naik’s NGO, IslamicResearch Foundation.

Soon, Aadhaar must for filing I-T returns

ED attaches Zakir Naik’s assets

—Compiled by Sucheta Dasgupta

Paid leave for harassed women

Lead/ Ayodhya Dispute

16 April 3, 2017

HIEF JUSTICE of India,Justice JS Khehar, throughhis oral observations incourt on March 21, in res-ponse to the plea of Bha-ratiya Janata Party (BJP)

member of Rajya Sabha and habitualgadfly Dr Subramaniam Swamy for theconstruction of Ram temple on the siteof Babri Masjid in Ayodhya has sent thepolitical class and the media into a tizzy.

Khehar said that he would be able totake up the Ayodhya case only after the

summer vacation, or until three morejudges are appointed to the apex court.He also said that this was a difficult iss-ue, involving sentiments, and it wouldbe better if the parties involved were tocome to an out-of-court settlement. Heoffered that he would not mind beingthe mediator, or if the parties wanted hecould ask someone from among the“brother judges” to be the mediator.

Chief Justice Khehar said: “These areissues of religion and sentiments. Theseare issues where all the parties can sit

together and arrive at a consensual deci-sion to end the dispute. All of you maysit together and hold a cordial meeting.”He asked Swamy to contact the partiesand get back to the court.

Subramaniam Swamy filed a petitionfor the construction of Ram temple onthe mosque site in November, 2016. Itwas clubbed with the other appealsagainst the Allahabad High Court judg-ment in the Ayodhya case. Swamy want-ed an early hearing of the case. He isseeking “judicial intervention” for res-

Temple TensionsRise AgainThe overwhelming victory of the BJP in the UP assembly elections fuels expectations that the party would use its electoral majority to build the Ram temple on the site of the Babri MasjidBy Parsa Venkateshwar Rao Jr

C

olving the issue and for building thetemple. He is not challenging the Alla-habad High Court judgment like theother appellants.

The Muslims have reacted withalarm, and the Hindu organisa-tions welcomed the Chief Jus-

tice’s remarks. Kalraj Mishra, a seasonedBJP leader from Uttar Pradesh andmember of the Union cabinet, told IndiaLegal: “It is a good suggestion. If thetwo sides agree to an out-of-court settle-ment, we would welcome it.”

When asked whether the BJP wouldtake the initiative of bringing about acompromise, given the fact that the par-ty is comfortably ensconced in powerboth at the Centre and in the state, heclearly ruled out any role for the BJP inthe matter.

BJP patriarch LK Advani told rep-orters: “The Supreme Court’s observa-tion is a welcome step and I hope in thelight of the apex court’s advise, all con-cerned parties will reach a consensusand find a solution to resolve the RamTemple issue.”

Asaduddin Owaisi, leader of the AllIndia Majlis Ittehadul Muslimeen(AIMIM) of Hyderabad, and Member ofParliament (Lok Sabha), said therecould not be any talk of mediation andcompromise because earlier attempts todo so have failed, and that the SupremeCourt must now dispose of the appealagainst the Allahabad High Court judg-ment of September 30, 2010, now pend-ing in the apex court. As to whether hefeared that the BJP would pass a lawfacilitating the construction of the tem-ple on the disputed site, he told IndiaLegal: “The BJP government would notdo it. It will wait for the Supreme Court

to give its verdict.” Owaisi, known as anadversarial Muslim voice, is confidentthat the BJP would not use its majorityin Parliament and a brute majority inthe UP assembly to push for the con-struction of the temple.

Majid Memon, prominent Mumbaicriminal lawyer and the NationalistCongress Party (NCP) member of RajyaSabha, welcomed the Chief Justice’s sug-gestion, but thinks it would be difficultfor Justice Khehar to push for it. “Jus-tice Khehar has only few months left inoffice and it will not be possible for himto oversee the mediation. It will requirea longer time,” he told India Legal.

A senior Congress functionary andmember of Rajya Sabha, speaking oncondition of anonymity, welcomed thesuggestion. And he too expressed theconfidence that the BJP would not mis-use its legislative majority in Delhi andLucknow to push for the construction ofthe temple. He said UP Chief MinisterYogi Adityanath would not be theHindutva hothead in office.

The reason that the observations ofJustice Khehar went viral, usingthe jargon of social media, is that

there is a sense of expectation on thepart of Hindu right-wingers and appre-hension on the part of the Muslims andsecularists that with the BJP enjoyingan impregnable majority in the UttarPradesh assembly poll verdict, and asimple majority in the Lok Sabha post-2014, the party which gained politicaldominance over the contentious RamJanmabhoomi-Babri Masjid dispute isnow finally in a position to facilitate the

construction of the “grand temple” inAyodhya at the site where the BabriMasjid stood and which was razed tothe ground by a mob of karsevaks orHindutva storm-troopers on Decem-ber 6, 1992.

The BJP’s calibrated stance over theissue has been that there should eitherbe a negotiated settlement or all sidesshould have to abide by the court ver-dict. But the party is not a disinterestedor a neutral bystander. The constructionof Ram temple in Ayodhya is part of thecore agenda of the BJP, along with Art-icle 370 regarding special status to Jam-mu and Kashmir and Uniform CivilCode (UCC).

Since Modi’s take-over of the party,the issue of Article 370 has receded intothe background, especially so since theBJP is part of the coalition governmentalong with the Peoples Democratic Party(PDP) led by Mehbooba Mufti inSrinagar. The party has not abandonedthe goal of bringing in the UCC. ManyMuslims suspect that the BJP’s opposi-tion to triple talaq is part of the strategyto push forward UCC.

The stand of the BJP on the Ramtemple issue is not as clear as its posi-tion with regard to the other two ques-tions. During the 2014 Lok Sabha elec-tion campaign, then prime minister-ial candidate Modi did not refer to it. The party’s then in-charge of UP, AmitShah cursorily referred to the goal ofbuilding a grand Ram temple inAyodhya, but subject to the proviso ofnegotiated settlement or abiding by thecourt verdict.

The question that right-wing Hindu


“These are issueswhere all the parties can sittogether and arriveat a consensualdecision....”Chief Justice ofIndia, JS Khehar

I hope in the light of the apex court’sadvise, all con-cerned parties willreach a consensusand find a solution.LK Advani, on CJI’sobservation

Legal luminary Soli Sorabji pointsout that judgment of the court

would be binding on all the parties, which is not so in thecase of a mediated decision.

Lead/ Ayodhya Dispute

and Muslim organisations face is whe-ther they would accept the apex courtverdict if it goes against them. ZafaryabJilani, Lucknow-based lawyer and convenor of the Babri Masjid ActionCommittee (BMAC) told India Legal ina telephonic conversation:“We will abidethe verdict of the court. What the courtsays will be the law of the land.” But heinsisted that the court must deliver thejudgment, and that there is no scope formediated settlement.

Jilani explained that there were fourattempts at mediation over the last30 years, and all of them had fai-

led. The first was by the Kanchi Shan-karacharya, Chandrasekhara Saraswatiin 1986 but it fell through because the

All India Muslim Personal Law Board(AIMPLB) wanted the terms and condi-tions of the compromise from the Hinduside to be presented in black and white,and it was not done.

The second attempt was duringSamajwadi Janata Party leader ChandraShekhar’s tenure as prime minister inlate 1990 and early 1991. The talks fellthrough because Congress withdrewsupport to his minority government.

The third attempt was made by

18 April 3, 2017

Prime Minister PV Narasimha Rao inthe second half of 1992, months beforethe Babri Masjid was demolished.

The fourth attempt was made byKanchi Shankaracharya JayendraSaraswati in 2002. But the compromisedocument prepared by him, which cameinto public domain, was unacceptable as it said that Muslims should surren-der three mosques, including the one at Ayodhya.

Jilani says that keeping in mindthese failed attempts at a compromise, itdoes not serve any purpose to suggestanother round of mediation. But he saidthat Chief Justice Khehar’s suggestionfor an out-of-court settlement was legalbecause Section 89 of the Civil Proce-dure Code (CPC) empowered the court

�1528: During the reign of MughalEmperor Babur, a mosque, Babri Masjidwas built in Ayodhya on a site whichmany Hindus consider as the place ofbirth of Lord Ram. Babri Masjid wasnamed after Babur.�1853: First recorded violent clashesbroke out at the religious site.�1859: The colonial British administra-tion created fences to separate worshipplaces; Muslims were allowed to use theinner court while the Hindus used outercourt.�1949: Idols of Ram Lalla are placedsurreptitiously under the central dome.The Government proclaimed the site as a disputed area and locked the gate.�1950: Gopal Simla Visharad filed firstsuit in Faizabad civil court for rights toperform pooja to Ram Lalla.

Paramahansa Ramachandra Das alsofiled a suit for continuation of pooja andkeeping idols in the structure.�1959: Nirmohi Akhara filed third suit.�1961: UP Sunni Central Wakf Boardfiled fourth suit �1984: Vishwa Hindu Parishad (VHP)formed a committee to liberate the birthplace of Lord Ram and build a temple. �1986: Muslims also formed BarbiMosque Action Committee after the dis-trict judges issued an order to open thegates of the mosque and allow Hindus to worship there.�1989: The newly-elected Rajiv Gandhigovernment allowed the VHP to performshilanyas for the Ram temple on the dis-puted land. VHP laid the foundation tobuild a Ram Temple adjacent to the dis-puted mosque site. �1989: The four suits pending weretransferred to the High Court.�1990: The then BJP president LalKrishna Advani took out a cross-countryrathyatra to garner support for a Ramtemple at the site. He was arrested inBihar on October 23. The BJP withdrewits support to the government. �1991: Kalyan Singh government in UP

acquired 2.77 acre land in the area andgave it on lease to Ram JanmabhoomiNyas Trust. The Allahabad High Courtstopped any permanent constructionactivity in the area. �1992: In July, several thousand karse-vaks assembled in the area and the workfor maintenance of temple started. Thisactivity was stopped after intervention ofthe prime minister. Meetings startedbetween Babri Masjid Action Committeeand VHP leaders in presence of thehome minister. On October 30, DharamSansad of VHP proclaimed in Delhi thatthe talks have failed and Karseva will pre-sume from December 6.

�6 Dec 1992: The Babri Mosque wasdemolished by a gathering of near200,000 karsevaks. Communal riotsacross India followed.�16 Dec 1992: The Congress govern-ment at the Centre, headed by PVNarasimha Rao, set up a commission of inquiry under Justice Liberhan.

A timeline of the dispute as it has unfolded

Ayodhya: Such a Long Journey

The Ram temple in Ayodhya ispart of the core agenda of the

BJP, along with Article 370 andthe Uniform Civil Code.

to ask the contesting parties to go forarbitration or mediation.

Former attorney general Soli Sor-abji told India Legal that JusticeKhehar’s suggestion was “well-

intentioned but impractical” and thecourt now must decide the case. Hesaid a judgment of the court would bebinding on all the parties, which is notso in the case of a mediated decision.

The Supreme Court will have todecide the case on legal merits anddemerits. What is the crux of theAllahabad High Court judgment? In asection of the judgment called “Gist ofthe Findings”, it noted that “both theparties (Hindus and Muslims) havefailed to prove the commencement of

their title. Hence by virtue of Section110 Evidence Act both are held to bejoint title holders on the basis of jointpossession.”

The High Court therefore gave thepreliminary decree that 2.77 acres of thedisputed site should be partitionedamong the Nirmohi Akhara, the HinduMahasabha representing the deity, RamLalla, and the Sunni Wakf Board.

It is usually the case that only one ofthe parties is aggrieved with a verdict.

But here, all the parties involved in thecase challenged the judgment. JusticesAftab Alam and RS Lodha of the Sup-reme Court had stayed the order of theAllahabad High Court on May 9, 2011.Justice Aftab Alam of the Division Ben-ch which issued the stay order said: “Atleast on one issue, all of you are unani-mous. The High Court has granted anew relief which no one has asked for it.The High Court has done something onits own. It has to be stayed.”

Justice Lodha described the HighCourt’s conclusion as “something stra-nge” and observed: “A new dimensionhas been given by the High Court as thedecree of partition was not sought bythe parties. It was not prayed for by anyone. It has to be stayed.”


�1993: The government took over 67acres of land around the area, soughtSC's opinion on whether there existed aHindu place of worship before the struc-ture was built.�1994: Case sent back to LucknowBench of HC.�27 Feb 2002: VHP declared March15 as the deadline to begin constructionof Ram Temple. Hindu activists returningfrom Ayodhya on a train were attacked inGodhra. Nearly 58 people were killed.�Mar 2002: 1,000-1,500 people werereportedly killed in the riots following theGodhra incident in Gujarat.�Apr 2002: The Lucknow bench ofAllahabad High Court of three judgesbegan hearings of the case.�Jan 2003: Archeologists started acourt-ordered survey to find out if a RamTemple existed on the site.�Aug 2003: The survey found evi-dence of temple beneath the mosque.However, Muslim groups disagreed withthe findings �Sept 2003: A court ruling chargedseven Hindu leaders and said theyshould stand trial in the demolition case.However, no charges were broughtagainst LK Advani on the ground that thecase was relating to the volunteers who

had razed the mosque. The same wasupheld by Allahabad High Court in 2010. �Nov 2004: An Uttar Pradesh courtruled that previously ruling of exoneratingLK Advani should be reviewed againsince he said in October 2004 that hisparty was unwaveringly committed tobuild the Ram Temple.�July 2007: The apex court refused toadmit a review petition on the case.�July 2009: The Liberhan Commissionfiled its report on Babri Mosque demoli-tion—17 years after it was set up.�Nov 2009: The commission’s contentwas made public which followed hugeuproar in the parliament as the reportnamed many leading BJP politicians.�Sept 2010: Allahabad High Court’sruling gave one-third possession of thesite each to Muslims, Hindus andNirmohi Akhara.

By a 2-1 majority verdict, (in the ben-ch of Justice SU Khan, Justice SudhirAgarwal and Justice DV Sharma), plaintiffs representing Lord Ram, the Nirmohi

Akhara and the Waqf Board weredeclared joint title-holders of the pro-perty. The bench asserted that the portion under the central dome of thedemolished three-dome structure wherethe idol of Ram Lalla had been kept in amakeshift temple was the birthplace ofLord Rama “as per faith and belief of the Hindus.”�2010 Allahabad High Court upheld thedecision of trial court to drop the chargesagainst LK Advani. �Dec 2010: The Akhil Bharatiya HinduMahasabha and Sunni Waqf Boardmoved to the Supreme Court, challen-ging part of the Allahabad High Court’sverdict.�2011: The CBI appealed against theHigh Court order against dropping ofcharges against LK Advani. Advani and others sought dismissal of the CBIpetition, citing delay as reason.�9 May 2011: The Supreme Courtstayed the High Court order splitting thedisputed site in three parts; remarkedthat the HC verdict was surprising as no party wanted a split of the site.March 21, 2017: The Supreme Courtsaid charges against senior BJP leaderLK Advani and other leaders cannot bedropped and that the case may berevived. The apex court said Ram Temple is a sensitive issue and shouldbe settled out of court through discus-sion between the two sides.

BMAC convenor Zafaryab Jilanisays there’s no scope for a

mediated settlement as four earlier attempts have failed.

Lead/ Ayodhya/Legal Background

20 April 3, 2017

HIEF JUSTICE JagdishSingh Khehar has actedwith sagacity in asking foran amicable settlement inthe Ram Janmabhoomi-Babri Masjid Case. The

failure of previous endeavours shouldnot stand in the way of another attempt.There were a total of four suits filed,which were clubbed and jointly tried bythe three judge bench of the AllahabadHigh court.

The judges, in separate judgments,passed an equitable order on the basis ofthe facts and evidence directing the divi-sion of the disputed land into threeparts. The area of the land where themakeshift temple is situated is to beallotted to the Plaintiff-deity. The areawhere the Ram chabutara and Sita rasoiis shown on the map, is to be allotted toNirmohi Akhara and the third portion isto be allotted to Sunni Wakf Board.

There were 28 issues framed in thesuit and the contentions would be rele-vant to understand the rival claims.

� Whether Babur/Mir Baqi construc-ted the mosque in the year 1528 on thearea after demolishing an existingHindu temple.� Whether the Sunni Wakf Board hastitle to the property and was in exclusivepossession and uninterruptedly per-forming prayers in the mosque till itsdispossession in 1949.� Whether the Ramlala Virajman deityhas title to the property and is in exclu-sive possession, while uninterruptedlyperforming prayers and worship� Whether the other plaintiff, NirmohiAkhara, has title to the property byadverse possession or otherwise.

PRE INDEPENDENCE LITIGATIONThe dispute between Hindus andMuslims over worshipping rights startedin 1853, resulting in periodic violence.In 1855, the civil administration madearrangements for both Hindus andMuslims to worship, by dividing themosque premises. In 1885, RaghubarDas, the Hindu mahant of Ram chabu-

tara, filed a civil suit before Faizabadsub-judge for constructions of a temple.The sub-judge and the district judgedismissed the suit but both observedthat the mosque was built on a landconsidered sacred by Hindus. The order,however, was to maintain status quo onthe grounds that it was too late to reme-dy the grievance.

Historical records disclose that Mus-lims and Hindus jointly offered prayerstill 1855. The priest of Babri Masjid in1858, in his petition to the British govt,stated that the courtyard had been usedby Hindus for hundreds of years.

POST INDEPENDENCE The second phase of the litigation start-ed in December 1949 when idols wereinstalled under the middle doom of thetemple. The District administration, toavert a law and order problem, lockedthe gates. Priests were allowed to goinside from an alternative entrance toconduct worship. A comprehensive suitwas filed seeking declaration that the

TheDeity’s

DomainThe Chief Justice has thrown the proverbial cat

among the pigeons by his suggestion for negotiations between the two sides in the

Ayodhya dispute. JJustice K Sreedhar Rao,looks at the legal implications

CHolidayiq.com

entire disputed area belongs to the deity.It sought perpetual injunction againstthe Sunni Waqf Board and individualMuslims not to interfere in construc-tion of a temple and for demolition ofthe mosque.

The Board filed a counter suit fordeclaration that the disputed property isa public mosque known as Babri Masjidand prayed for delivery of possession ofthe mosque after removal of the idols. Inlaw, a suit for declaration is not tenablewithout consequential relief. The WaqfBoard did not seek consequential reliefof possession but left it to the discretionof the court. Such a suit could not bemaintainable in law.

With regard to the title to the disput-ed property, two of the judges foundthat the Sunni Waqf Board had no titleto the property. However, the other jud-ge held that the Waqf Board, the deityand Nirmohi Akhara were in joint pos-session and nobody had exclusive pos-session. Therefore an equal allotment of one-third to each of them should bemade. In Hindu law a deity is a perpetu-al minor capable of owning the property.The person who manages the propertyof the deity is only the trustee , asguardian on behalf of the deity, can sueand be sued. In Muslim law, a propertydedicated for religious and charitablepurposes will be owned by Allah and

called Waqf property. The Waqf can becreated orally. Once created, its validly isirrevocable. A person can create Waqf ofa property rightfully held by him.

There is irrefutable finding thatbeneath the mosque under the sub-soil,exists a temple. The fact that the templewas destroyed or was in a ruined statedoes not take away the title of the deityover the land. Similarly, in Muslim law,if a mosque is destroyed or is dilapidat-ed, the property vests in Allah and con-tinues to be Waqf property. It is a invio-lable mandate of the holy scriptures ofIslam that a person can dedicate a prop-erty to Waqf over which he has a right.But a disputed property cannot be dedi-cated to Waqf. In the present litigationthe disputed property is vested with thedeity irrespective of whether temple wasdestroyed or ruined. It is impermissiblein Islam to dedicate the property forWaqf by constructing a mosque overwhich the deity had lawful rights.

The finding of the majority of thejudges was that the Waqf of BabriMasjid was not lawful and valid accord-ing to the tenets of Islam. Hence theSunni Waqf Board cannot claim titleover the disputed property.

A different view taken by JusticeSigbhat Ullah Khan is also, in one way,

correct because the facts and evidencedisclose that in the year 1885 the civiladministration managed by Britishdivided the mosque into two parts byputting a divider. It was found by thejudges that Hindus were conductingworship in the outer courtyard and theinner courtyard and there had beenjoint worship by both communities.Therefore construing the disputed prop-erty as a joint property would justify thedivision and distribution of the land inthree equal parts.

DEMOLITION AND AFTERThe first disputed contention about thedemolition of the temple and construc-tion of the mosque by Babur/Mir Baqi isa vexed question which relates to histor-ical antiquity. There are historical ver-sions which suggest that Babur demol-ished the temple and constructed amosque over the land. Some Left winghistorians seriously contest the theory ofdemolition, pointing to historical acc-ounts by Tulsidas, Babarnama,Akbarnama and the English travellerWilliam Finch, which do not refer to themosque built by Babur. The ASI excava-tion did establish a temple structurebeneath the sub-soil structure of themosque. A mosque was built in Ayodhyacalled Hanumangarhi by a general ofAurangzeb in the 17th century. The landon which it was built was granted toHindus by Nawab of Awadh on the con-dition that the Hindus should not pre-vent Muslims from conducting prayersin the mosque, which had become dilap-idated. When Muslims of Ayodhya req-uested the mahant for permission toreconstruct the mosque, he offered toconstruct the mosque at his cost.

The world is being divided on reli-gious lines. It is the need of the hourthat India should stand united. Thecause of secularism would be wellserved by an amicable settlement, as suggested by the Chief Justice.

The author is former acting chief justice of the Gauhati and Karnataka

High Courts


The fact that the temple wasdestroyed or was in a ruined statedoes not take away the title of the

deity over the land.

TESTIMONY TO HISTORY(Left) Hanumangarhi and (above) Sita rasoi inAyodhya, deeply associated with the religious beliefs of Hindus for centuries

Acts & Bills/ Discrimination and Equality Bill

RIVATE Members’ Bills(PMBs)—those presentedby Members of Parliamentother than ministers—have a very poor record ofseeing the light of day.

Between 1952 and 1968, while 14 PMBsbecame laws, between 1968 and 2014,none of the PMBs were enacted. In2014, the Rights of Transgender PersonsBill, a PMB, was introduced by DMKMP Tiruchi Siva. The governmentadopted the Bill, with changes, andpassed it in 2016.

The reason the government cites for

non-passage of a PMB is that it wouldcome up with a better bill or that thebill's concerns are already addressed inthe existing laws. Therefore, whenCongress MP Shashi Tharoor intro-duced the Anti-Discrimination andEquality Bill in the Lok Sabha on March10, it evoked interest and curiosity.

In the 14th Lok Sabha, 328 PrivateMembers’ Bills were introduced, butonly 14 were discussed. If Tharoor’s Billprovokes a debate in parliament andoutside, it must be due to its merits. Thechief merit is that it extends prohibitionof discrimination on grounds of religion,

Let’s BeFair to All

A Private Member’s Bill by ShashiTharoor promises remedies against all

sorts of discrimination. But will it bepassed in parliament?

By Venkatasubramanian

P22 April 3, 2017

INCLUSIVE APPROACHThe proposed Bill seeks to

extend prohibition of discrimination to many

disadvantaged sections of society.

(Clockwise from top left) Miss Wheelchair India 2015

Priya Bhargava; Members of the All Jammu and Kashmir

Handicapped Association staging a protest

demonstration; members of a

khap panchayat

UNI

at present an exception among liberaldemocracies for not enacting a compre-hensive law against discrimination, cov-ering both the public and the privatesectors,” the Bill noted.

Tharoor tweeted that the Bill owedits origin to the efforts of TarunabhKhaitan, who is an Associate Professorand the Hackney Fellow in Law atWadham College, Oxford University,UK. Author of “A Theory ofDiscrimination Law” (OUP 2015),Khaitan had proposed a similar Bill tothe Delhi government last year. TheAAP government, which initiallyshowed interest in its adoption, back-tracked for inexplicable reasons.Khaitan has expressed the hope that theLok Sabha will now send the Bill to astanding committee for scrutiny.

One of the key features of this Bill,according to Khaitan, is that discrimina-tion is normally seen as a civil ratherthan a criminal offence. The focus is oncompensation and redress for the vic-tim, rather than punishment for the dis-criminator. The usual modes of enforce-ment of civil court orders will apply fornon-compliance. The only departurefrom the civil nature of the Bill is thatthere are some special provisions foraggravated discrimination where a mag-istrate can be approached for a protec-tion order.

The Bill mandates the formation ofCentral and State Equality Commissionsto inquire into any matter, seek anyinformation and facilitate the resolutionof any dispute or issue any order underthe Act.

Whether it will lead to a just andequitable society waits to be seen.

race, caste, sex or place of birth, andthose not mentioned in Article 15(1) bythe State to similar discriminative actsby non-State private entities.

WIDE SPECTRUMA “protected characteristic” in relationto a citizen of India is defined in the Billas “caste, race, ethnicity, descent, sex,gender identity, pregnancy, sexual orien-tation, religion and belief, tribe, disabili-ty, linguistic identity, HIV status,nationality, marital status, food prefer-ence, skin tone, place of residence, placeof birth or age”. Based on this definition,the term “disadvantaged group” is givena wider meaning, which includes anygroup which suffers untouchability,racial and ethnic minorities in the relevant geographical area, women andinter-sex persons, transgendered persons, hijras and gender non-con-forming persons.

Thus, the Bill’s ambit includes situa-tions when an employer refuses to inter-view a candidate because he belongs to ascheduled caste or when an employerfires a female employee after her mar-riage because he makes a stereotypicalassumption that married women do notmake efficient workers. A hospital whichhires only female nurses based on thestereotypical assumption that womenare more caring than men or a housingsociety which offers apartments on rentonly to married couples would attractthe rigours of the Bill. If a university hasa policy of conducting random securitychecks of rooms of only Kashmiri stu-dents, it too is likely fall foul of this Bill.

Creating an intimidating, hostile or

bullying environment for a person of aprotected group is deemed as harass-ment and would invite penal actionunder the Bill. Thus, a co-worker sprin-kling “holy water” on a machine previ-ously operated by a Dalit colleaguewould be deemed harassment underthe Bill.

A khap panchayat ordering villagersto stop all interaction with the familiesof a couple who belong to different reli-gions would be considered boycott inrelation to religion-cum-marital status,again attracting the penal provisions ofthe Bill. Threatening a Hindu boy withviolence unless he breaks off his roman-tic relationship with a Muslim girlwould also be considered an offenceunder the Bill.

MORAL BRIGADEThe Bill targets the moral brigade’s bidto force a woman walking hand in handwith a man who is not married to her totie a rakhi on the man’s wrist. A womanin love with a man belonging to thesame gotra as hers, but finds her move-ments restricted and monitored by herfamily, could also get relief from the Bill.

Tharoor’s Bill reasoned that insteadof merely mandating punish-ment for offences, we mustsimultaneously engendergreater understanding andempathy within the systemamong the individuals whoconstitute that system. “India is

When Congress MPShashi Tharoor (left)introduced the Anti-Discrimination andEquality Bill in theLok Sabha, it evokedconsiderable inter-est and curiosity.

Tharoor tweeted thatthe Bill owed its originto Tarunabh Khaitan(left) of OxfordUniversity, who proposed a similar Bill to the AAP govtin Delhi.


NO POLICING NEEDEDThe Bill targets the moral brigadewho may attack a couple holdinghands

HE Collegium system failedto make recommendationsin time as laid down in theSecond and Third Judgescase; as a result, in all highcourts, the vacancy position

became alarming. Due to this, the prob-lem of huge pendency of arrearsremained unsolved. The timely filling upof vacancies is only an inchoate solutionfor expeditious and just disposal of casesbefore high courts. It is necessary thatthe right persons are appointed with theright subject knowledge and experiencefor dealing with civil and criminal cases.

CASE PENDENCYAccording to the Ministry of Law &Justice, as on December 31, 2014, thependency of civil cases in high courtswas 31,16,492. Of these, 5,89,631 arepending for more than 10 years. Thependency of criminal cases was10,37,465, out of which 1,87,999 arepending for more than 10 years.

In the Supreme Court as on February19, 2016, the pendency of civil cases was48,418, out of which 10,132 were pend-ing for more than 10 years. The penden-cy of criminal cases was 11,050, out ofwhich 84 have been pending for morethan 10 years.

In a district, the judge is supposed todispose of 14 sessions cases in a month.The ratio of disposal of civil/criminal

Legal Eye/ Memorandum of Procedure

T

The Right Personfor the Right Job

criminal and civil appeals should beworked out with each high courtdepending on its total/working strength.The optimum rate of disposal and thetime-frame is achievable only if the right persons are appointed for the right cases.

It has been disclosed that 60 percentof the inflow and pendency of cases inevery high court relating to civil andcriminal cases arises from subordinatecourts, while a majority if the remaining40 percent relate to writ petitions andappeals. Company matters and tax casesare comparatively few in number. Thepresent rate of disposal is a little lessthan the annual inflow in every highcourt. Only writ petitions are gettingdisposed of expeditiously, while civil andcriminal cases remain unattended,resulting in a staggering backlog pend-ing for over a decade.

It is, therefore, necessary that two-thirds of the posts of judges in everyhigh court be filled up by persons whohave proficiency and extensive practicalknowledge in civil and criminal law. TheMoP should prescribe that. In every rec-ommendation, it should insist that thisratio be maintained. The recommenda-tions for such judges should be substan-tiated with authentic, verifiable materi-al. This would be the right solution forexpeditious and just disposal of casesand would also obviate arbitrariness and

The MoP between the judiciary and the government shouldkeep in mind various issues before there is speedy disposal ofthe huge backlog of cases plaguing our judicial system By Justice K Sreedhar Rao

appeal varies from 3-4 appeals, equiva-lent to one sessions case, according todifferent yardsticks fixed by differenthigh courts. This would mean that a dis-trict judge who disposes only civilappeal should dispose of 56 of them toreach the quota in a month. This meansthree appeals a day. A judge of a highcourt should have a capacity for a highernumber of disposals. Assuming that hedisposes of at least 4-5 civil appeals aday, he would be disposing of 80-100appeals a month. With 210 workingdays, a judge should dispose of at least800-1,000 appeals a year.

In the case of a high court, assumingthat at least 15 judges proficient in civillaw are made to deal with only civilappeals, there would be disposal of2,88,000-3,00,000 such cases yearly byall high courts. In such a scenario, itwould take 10-11 years to dispose of thearrears of 31,16,492 cases. If a similarexercise is done in respect of criminalcases, it would take around four years tomop up the arrears.

The number of judges to be assigned

The number of judges to beassigned criminal and civil

appeals should be worked outwith each HC depending on its

total working strength.

24 April 3, 2017

MoP should give more thrust to meritcum seniority as compared to the pres-ent practice of seniority cum merit.

Whether it was under the abortedNJAC or the Collegium system, unlessthe right person is appointed for theright job, neither the problem of arrearsnor the expeditious and just disposal ofcases will become a reality. The legalscholarship and practical experience ofthe recommendee is a matter that wouldbe decided objectively by the High CourtCollegium and the Supreme CourtCollegium as per the norms in MoP.According to the old MoP, which theSupreme Court collegium has virtuallyrejected, the social antecedents, thecharacter and integrity of the recom-mendee is a matter that the governmentthrough the Intelligence Bureau wouldcollect andconvey to the Collegium forconsideration. If the entire processbecomes a matter of record, the ques-tion of either the collegium or the gov-ernment erring would not arise.

In that MoP, it could be agreed thatin the event of a conflict of views withregard to any recommendation betweenthe Collegium and the government, itwould be desirable to leave it to the soledecision of the President.

The writer is former acting chief justice of Karnataka &

Gauhati High Court

nepotism that is now in vogue.Invariably, every judge of a high

court having a service of around 10years or more should be made to dealwith cases of different branches of lawand sufficiently for a period of two years.This would give him sufficient expertiseon the subject. Elevation to the SupremeCourt or as chief justice of a high courtshould be based on merit cum seniority.Merit has to be objectively measuredand assessed on the basis of qualitativeand quantitative performance. Theassessment should be made a part of the MoP.

AD HOC JUDGESA citizen who has been at least five yearsa judge of a high court or two or moresuch courts in succession can beappointed a judge of the Supreme Courtunder Article 124. Article 127 providesfor appointment of an ad hoc judge tothe Supreme Court for a particular peri-od if he is qualified to be appointed as ajudge of the Court. This provision hasremained unexplored. In the totalstrength of 31 judges in the MoP, at least10 posts should be earmarked forappointment of ad hoc judges who areproficient in dealing with civil and crim-inal cases. This would give a competitivezeal, incentive and encouragement tojudges of high courts who may not havesufficient seniority but have the merit.

In the past, instances of elevationfrom the Bar directly to the SupremeCourt were a rarity. The aggressive number of elevations of senior advocates of the Supreme Court Barwho have earned lucratively from theapex court can act as a dampener to thelegitimate expectations of judges of highcourts who have rendered devoted serv-ice on paltry salaries. That apart, favor-ing only senior advocates of theSupreme Court for elevation gives asense of discrimination and inferiorityamong senior advocates practicing indifferent high courts. The MoP shouldensure that elevation from the Bar tothe Supreme Court should be only inexceptional cases.

The MoP should provide that when-ever a recommendation of the HighCourt Collegium is not acceptable to theSupreme Court Collegium, the issueshould be discussed with the ChiefJustice of the High Court before its finalrejection. The proceedings have to alsobe recorded for perusal by the President.There should be comparative analysis ofmerit of all judges of high courts whocome up for consideration in theSupreme Court. The MoP should incor-porate the above requirement.

The obsessive adherence to the ruleof seniority vis-à-vis merit can be obvi-ated when the assessment of merit istransparent and objective. Hence, the

IN NEED OF SPEEDIER JUSTICE(Left) Lawyers outside the apex cout that is plagued by huge pendency of cases;(above) The Supreme Court of India


Photos: Anil Shakya

Health Policy/ Private Sector

HE new National HealthPolicy (NHP) announcedby the government onMarch 15 promises everycitizen a healthy future.Together with the ann-

ouncement made in the budget speechabout time-bound elimination of dis-eases such as tuberculosis and kala-azar,it is being projected as the biggesthealth initiative of the Modi govern-ment. But its critics say that it is tiltedin favour of the private sector and doesnot focus on increasing public invest-ment in health.

The first draft of the policy was pla-ced in the public domain on December2014 and has been the subject of consul-tations with state governments and theCentral Council for Health and FamilyWelfare. Since the draft was released bythe present government, it is supposedto reflect its thinking. The previous UPAgovernment had established a high-levelexperts group on Universal Health Cov-erage (UHC) and had committed to im-plement the report’s recommendations.

The UHC, as defined by the WorldHealth Organisation (WHO), impliesthe government makes available a minimum set of health services includ-ing medicines to all citizens. Since therole of the state is central to the con-cept of UHC, it is deemed necessary tostrengthen primary care through newand additional investments. The newpolicy swears by UHC but it has pro-posed its own definition which, in fact,goes against the well-accepted conceptof universal health.

A NEW DEFINITIONThe policy assures “availability of free,comprehensive primary health careservices for all aspects of reproductive,maternal, child and adolescent healthand for the most prevalent communica-ble, non-communicable and occupation-al diseases”. However, the state will notdo this. Instead, delivery of health careservices will be linked to a “health card”to enable every family to have access toa doctor of their choice from amongstthose volunteering their services. Forensuring improved access and afford-

Shifting the Goal Post The new policy announced by the government is tilted in favour of this sector providing universal health coverage. This is a clear departure from the established norm that the state is central to providing medical services By Dinesh C Sharma

T

26 April 3, 2017

UNIVERSAL HEALTHA doctor doing the

rounds in the children’sward in Patna MedicalCollege and Hospital

Photos: UNI

areas or regions with under-servicedcommunities will be given opportuni-ties. The idea is to use such private pro-viders for tasks such as disease notifica-tion and surveillance, sharing and sup-porting laboratory services for identifi-cation of drug resistant tuberculosis orother infections and supplying restrictedmedicines needed for special situations.“This would greatly encourage suchproviders to do better,” the policy says.

Overall, the policy brought in by theNDA government is tilted in favour of agreater role of the private sector in theprovision of health services across thespectrum, and does not argue forcefullyin favour of enhancing public invest-ment in health. While the role of privatesector in a large country like India can’tbe undermined, it can’t be given therole of primacy. At a time, when manycountries in the world, including thosein Asia are moving towards a genuineUHC framework led by public sector,India is moving towards a system domi-nated by the private sector without anysignificant regulation or quality control.The implementation of this policy willfurther privatise Indian health system,which is already among the most priva-tised systems in the world. This certain-ly does not augur well for health and thewell-being of people.

ability of quality secondary and tertiarycare services, it is proposed to use “acombination of public hospitals and wellmeasured strategic purchasing of servic-es in health care deficit areas, from pri-vate care providers”.

The second point on which the policyfalls short of expectations is the need toincrease health expenditure as a per-centage of the Gross Domestic Product(GDP). The policy proposes raising pub-lic health expenditure to 2.5 percent ofthe GDP by 2025 which, it says, is “apotentially achievable target”. The firstdraft issued in 2015 had mentioned thetarget year as 2020. At present, Indiaspends just 1.15 percent of GDP as pub-lic health expenditure.

In addition to shifting the goal post,the policy is now talking about a greaterspending by state governments. Fundswill be released based on a system ofincentives, development indicators andcapacity of states to spend. Otherwise,general taxation will remain the pre-dominant means for financing healthcare. Like in providing care, for fundingtoo, the government will look to the pri-vate sector. The policy says “funds avail-able under Corporate Social Responsi-bility (CSR) would be leveraged for well-focused programmes aiming to addresshealth goals”.

In addition to “strategic purchasingof services” from the private sector andseeking private funds through CSR, thepolicy wants the government to furtherenhance the role of this sector. One ofthe key objectives of the policy is to“influence the operation and growth ofthe private healthcare sector and med-ical technologies” to ensure alignmentwith public health goals. The govern-ment will enable private sector contri-bution “to making health care systemsmore effective, efficient, rational, safe,affordable and ethical”. The policy cla-ims that “strategic purchasing” of servi-ces from the private sector by the gov-ernment to “fill critical gaps in publichealth facilities would create a demandfor private health care sector, in align-ment with the public health goals”.

PRIVATE SECTOR’S ROLEPrivate sector engagement will go be-yond contracting and purchasing, thepolicy says. Private providers in rural

TIMELY HELP(Left) A doctor attends to a patient in Bodh Gaya; (above) Union Health Minister JP Nadda


The national health policy says“funds available under CSR would

be leveraged for well-focusedprogrammes aiming to address

health goals”.

Environment/ Ganga and Yamuna

28 April 3, 2017

EW rivers in the world havegot the attention and rever-ence that the Ganga has.Though it is considered themost holy river in India, itcontinues to be ravaged by

man-made pollution, making it toxicand dangerous at many stretches.Government schemes to clean theGanga have been on for over 30 years ata huge cost to the exchequer. But, forthe dying river, this is tokenism. Sowhen the Uttarakhand High Court ruled

that the Ganga and the Yamuna wereliving entities, it ruffled a few feathers ingovernment circles who have beenrepeatedly pulled up by the NationalGreen Tribunal for not taking punitiveaction against polluters or the requiredsteps to keep the river alive.

A division bench of Justices AlokSingh and Rajiv Sharma pointed outthat the two rivers were losing their veryexistence. The judgment was intendedto ensure the preservation of both rivers.Just a few days ago, New Zealand had

passed a landmark bill making theWhanganui River a living entity withfull legal rights. A leading lawyer saidthat the Uttarakhand High Court hadtaken inspiration from this unique moveto pass the landmark order.

What this would mean is important.As both the rivers have been stampedliving entities, they would have legalrights like a person. The Court has des-ignated an authority which would func-tion like a guardian to the rivers andalso file cases on their behalf if they

F

Though the Uttarakhand High Court has given an order granting “living entity” status to thesedying rivers, this will help save them only if there is political will to implement existing laws By Ramesh Menon

Is this Life?

POLLUTED WATERSThe Yamuna in Delhi

is a sorry sight

Anil Shakya

were being abused or polluted, forinstance.

The Court has appointed theDirector of the Namami Ganga pro-gramme, the chief secretary and advo-cate-general of Uttarakhand, who likeguardians, will ensure the well-being ofthe rivers. They have been appointed toserve as “parents” for Ganga andYamuna. “The Advocate General shallrepresent at all legal proceedings to pro-tect the interest of Rivers Ganges andYamuna,” the order said.

In numerous cases, officials of bothUttar Pradesh and Uttarakhand havebeen pulled up by the courts for notensuring the protection of the rivers.Now, after this ruling, they can be suedon behalf of the rivers. They would belargely responsible for the funds that areallocated for cleaning the rivers.

After this ruling, the central gov-ernment has to set up a GangaManagement Board within two

months, which the Court said wouldlook after irrigation, rural and urbanwater supply and generation of hydropower, navigation and industries nearthe river. Mining in the river bed of theGanga and its highest flood plain area,the ruling said, has been forthwithbanned. The Court asked the districtmagistrate and sub-divisional magistrate to ensure the order was implemented.

Kartikeya Sarabhai, Director, Centrefor Environment Education,Ahmedabad, said: “It is on the majorrivers that our civilisation has evolved.Today, many of our rivers are highly pol-

luted and have become sewers. It is crit-ical that we restore them not only fortheir ecological importance but also forus as our lives are ultimately connectedto them.”

Noted environmental activist andlawyer MC Mehta told India Legal: “It isa wonderful order that underlines thevalue of water in our lives.” He has bat-tled with the courts on numerous envi-ronmental issues. He pointed out thatthere were many laws that can protectthe river, but have never been imple-mented or enforced. “We have given theGanges the status of a God. But look atthe way we have destroyed it. It isalmost dead. There is no political will tosave the Ganga and Yamuna. Stateauthorities have told the courts that theydo not even know how many industriesthere are on its banks and how manydrains are being emptied into it. Thereis little hope with realities like this,” said Mehta.

Mehta had, in an earlier petition,

pointed out that those who were pollut-ing the Ganga were violating the funda-mental rights of people living beside it.The NGT had in a series of hearingssubsequently pulled up officials whocould not answer basic questions onhow thousands of crores had been spentin the guise of cleaning it.

The Court said that in order to pro-tect the recognition and faith of society,Ganga and Yamuna were required to bedeclared as living persons as they werecentral to the existence of half of theIndian population, their health andwell-being. Undoubtedly, this is anunusual order but whether this will saveboth these dying rivers remains to beseen. It already seems too late as muchof the damage is irreversible.

Mehta stressed: “Empty platitudeswill not help. We all have seen millions of people pray to the river and worship it. But that has not stoppedcriminals from killing it. There have tobe strict punishments as there are lawsfor it. But, they have not been implemented as no one cares. We have seen executives in charge of theserivers make fools out of politicians andwe have seen politicians make fools outof people. Only if we see the river reviv-ing from its death bed will there be hope.”


“Many of our rivers are polluted and have become sewers.It is critical that werestore them...”—Kartikeya Sarabhai,Centre for EnvironmentEducation

“Only if we seethe river revivingfrom its death bed will there be hope.” — MC Mehta, notedenvironmentalactivist and lawyer

RIVER MANAGEMENT A FARCEGarbage being dumped into the Ganges InAllahabad

Anil Shakya

Environment/ Uttarakhand/ Waste Management

30 April 3, 2017

OLID waste managementis a major challenge thaturban India is confrontedwith. And the problem willonly amplify with increasedurbanisation. According to

estimates of the Union Urban Deve-lopment Ministry, by 2050, half ofIndia’s population will be concentratedin cities and towns. The 2011 Censusrevealed that as much as 31 percent ofthe country’s 1.21 billion populationresided in cities.

This shift from the rural to the urbansettlements brings with it a host ofproblems. The biggest challenge is gen-eration of solid waste, which includesgarbage, sludge, sewage, discarded mat-erials including solid, liquid and con-tainerised gaseous material, and semi-solid refuse. These come from dwellings,community activities and industrial andcommercial establishments.

While there are laws which addressthe need to manage solid waste, includ-ing Municipal Solid Waste (MSW)Management & Handling [M&H])Rules, 2000, later renamed as SolidWaste Management (SWM) Rules,2016, the problem has not been effec-tively addressed. It is in this context thatthe March 16, 2017, judgement of the

Uttarakhand High Court is being seenas a landmark one. Here, the two-judgebench issued detailed guidelines onsolid waste management for the Uttara-khand government. This could serve asa template for other states to follow.

According to an official of the UnionUrban Development Ministry, the Courthas set deadlines for the state govern-ment to act and the newly-elected BJPgovernment in Uttarakhand will havelittle option but to abide by it. The offi-cial said: “I don’t think that the statewill even consider going in appeal agai-nst the High Court judgement. Much ofwhat the Court has noted is already

there in central government rules and in the Prime Minister’s Swachh Bharatprogramme. It is the implementation ofthe rules and the timeline that the Courthas underlined that makes it a signifi-cant order.”

BEYOND THE PILJudges Rajiv Sharma and SudhanshuDhulia of the Uttarakhand High Courtpassed the order while disposing off aPIL filed by the Sai Nath Seva Mandalin 2012. The PIL had raised concernsover the municipal waste generated inKashipur town (Udham Singh Nagardistrict) being dumped into the Dhela

Tamingthe TrashA landmark judgement has issued detailed guidelines formunicipal waste management which could serve as atemplate that the entire country would do well to follow By Ajith Pillai

S

Most of the statistics relating to thevolume of municipal solid waste(MSW) generated are based on

a Central Pollution Control Board(CPCB) study conducted in 2004-05.From it, a figure of 0.4 kg per capita perday of MSW was arrived at.

Since then, various estimates havebeen made. The 2009 CAG report onwaste management estimated thaturban India produced 48 million tonnes

of MSW annually. The Department ofEconomic Affairs estimated 58 milliontonnes for the same year. The CPCBreport for 2012 cited 47 million tonnes.In 2014, the Planning Commission putits estimate at 62 million tonnes. And in2016, the CPCB estimated the annualMSW generated at 52 million tonnes.

But what is worrying is the CPCBestimate that only 23 percent of thewaste generated is processed or takento landfills or treated. According to itsdata, six major cities (Delhi, Mumbai,Chennai, Kolkata, Hyderabad and

Delhi tops the list

river near the Sai Temple. The Courtfirst addressed the specific issues raisedin the PIL. It later enlarged the scope ofthe writ petition through its April 27,2016, order by directing magistrates ofall 13 districts in the state to “provideprompt information in regard to thesteps being taken and progress made inthe matter for implementation of WasteDisposal Management Rules” drawn upby the central government in 2000 andrevised in 2016.

After receiving feedback from thedistricts, the Court was constrained toobserve that “nothing concrete has beenundertaken by the state agencies includ-

ing the Panchayati Raj institutions. Thegarbage is thrown all over the publicplaces. The garbage is neither segregat-ed nor stored as per the provisions ofthese Rules at the source…. Whatemerges from the affidavits filed by theDistrict Magistrates is that no scientificmethod has been evolved, till date, fordisposal of the municipal waste. Shock-ingly, the urban waste is also beingdumped in the forest land. A number oflocal bodies have no land available withthem for landfill trenching ground…. Itis thus, evident that in most of the localbodies, the land is not available for sci-entific disposal of the municipal waste”.


The action plan for municipal solidwaste management drawn up by theUttarakhand government in 2015 doesrecognise the problem. It pointed outthat the state was generating upwardsof 3,000 metric tonnes of solid wasteevery day, of which only 40 percent wascollected but not disposed scientifically.Virtually all the waste was dumped inwater bodies, burnt or buried illegallyin vacant land. The report estimatedthat by 2040, the quantum of wastegenerated in the state would touch9,000 tonnes a day and underlined theneed to initiate action with urgency.

SIGNIFICANT POINTERSWhile ruling in favour of the petition,the judges made this significant obser-vation: “Every citizen has a legitimateexpectation and right to sue the electedrepresentatives, officers/officials of theMunicipal Corporation, Municipalitiesand Panchayati Raj Institutions, indi-vidually and by way of collective actionclaiming damages/compensation on theprinciple of accountability in case theseofficers remain remiss in discharge oftheir statutory duties cast upon them bythe Municipalities Act, Municipal Cor-poration Act and Panchayati Raj Act.”

The mandatory guidelines drawn

FLIP SIDE OF URBANISATION: (Left) A garbage dump in the hills of Uttarakhand; The HighCourt of Uttarakhand wants the state government to clean up the mess

Bangalore) are responsible for 10 million tonnes of garbage a year. Ofthese, Delhi tops the list with 3.3 million tonnes.

Experts say the landfill sites provid-ed for cities do not have effectivewaste recycling systems and waste isoften burnt, releasing toxic gases intothe air. Moreover, the landfill sites areoverflowing. Delhi has only 164 acresof landfills when it requires over 640acres going by CPCB estimates.

The situation is indeed alarmingand calls for urgent action.

up by the Court pay meticulous atten-tion to details. Here are a few signi-ficant pointers:� Public premises like parks, streets etc.shall be “surface cleaned” daily by con-cerned authorities—municipal corpora-tions, nagar panchayats, panchayati rajinstitutions� Officials of these organisations/insti-tutions shall ensure that no garbage isdeposited in any street or public place � Workers cleaning the streets orremoving garbage, including medicalwaste, should be provided proper uni-forms and protective gear � The state government should decideon proposals sent by municipal bodiesfor managing solid waste within fourweeks (of the court order) � The nagar nigams of Dehradun andHaridwar are directed to complete thetender process relating to existing solidwaste management schemes withineight weeks and implement them � Principal secretary, urban develop-ment, Uttarakhand, is directed to pre-pare the state policy and strategy onwaste management after discussion with stakeholders within three months.Land must be allocated to local bodiesfor setting up processing and disposalfacilities for solid waste� The town planning department mustprovide a separate place for segregation,

storage and decentralised processing ofsolid waste in the development plan forgroup housing or commercial, institu-tional or other non-residential facility“exceeding 200 dwellings” � All local bodies, including panchayats,must ensure door-to-door collection ofsegregated solid waste from households,informal settlements, commercial andnon-residential institutions� There shall be a direction to the pub-lic not to “litter, throw or dispose of anywaste such as paper, water bottles, liq-uor bottles, soft drink cans, wrappersetc., or burn or bury waste on streets,public spaces, drains, water bodies andto segregate the waste at source”. Heavyfines must be considered on those whoviolate laws � Local authorities are directed to set upmaterial recovery facilities with suffi-cient space for sorting of recyclable mat-erials. Hazardous domestic waste mustbe deposited and dealt with separately

� All local bodies are directed to con-struct, operate and maintain sanitaryrefills as per Schedule-1 of the Rules of 2016 � A public awareness drive is called for.There shall be a direction to local autho-rities not to dump garbage in rivers,streams and forest land. There shall alsobe a directive to all municipal authori-ties to ensure there is no mixing of bio-medical waste with other municipalsolid waste � Magistrates must be appointed withinsix months for ensuring compliance ofthe provisions of various laws and to tryoffences relating to littering, sanitationand public health

BEYOND THE PILJustices Sharma and Dhulia, whiledrawing up the guidelines, drew atten-tion to a Supreme court order of 1996(Dr B.L. Wadhera v. Union of India &others) which said that citizens have a“constitutional as well as a statutoryright to live in a clean city. The authori-ties concerned have a mandatory duty to collect and dispose of the garbage/waste generated from various sources in the city. Non-availability of funds,inadequacy or inefficiency of staff, insu-fficiency of machinery etc. cannot bepleaded as grounds for non-perfor-mance of the statutory obligations”.

Copies of the Uttarakhand HighCourt judgement have been sent to thechief secretary, secretaries of urbandevelopment and rural development,the Uttarakhand Pollution ControlBoard and the Comptroller AuditorGeneral of India “for implementation of the direction in letter and spirit”.

It will do Uttarakhand, a popularreligious and tourist destination, aworld of good if the order is compl-ied with.

32 April 3, 2017

“...no scientific method has beenevolved, till date, for disposal of

the municipal waste. Shockingly,the urban waste is also being

dumped in the forest land.” —Uttarakhand High Court judgement

TASK AHEADThe newly-elected BJP government in Uttarakhand headed by TrivendraRawat will have little option but toabide by the deadlines set by the court

Environment/ Uttarakhand/ Waste Management

UNI

ple who are paying up to `20,000 a dayto enjoy a certain level of comfort, serv-ice and ambience.

SC GUIDELINESArticle 15(2) of the constitution pro-hibits restriction to any citizen of Indiaon entry to a public hotel, restaurant orplace of entertainment on the grounds“only of religion, race, caste, sex[and/or] place of birth”. It is a funda-mental right guaranteed to all citizensof India.

Indeed, but a hotel or a restaurant isa business which charges its clientele

Society/ Use of Hotel Toilets

PENING the toilets ofprivate hospitality enti-ties like hotels andrestaurants to the publicin South Delhi is soabsurd that you cannot

even begin to absorb the ramifications.This is not democracy at work, this is

creating a state of chaos. These areplaces that charge huge sums of moneyfrom their patrons to maintain hygieneand offer above average cleanliness andwashroom facilities. To turn this into arailway station loo for a ridiculous ` 5per individual is to inconvenience peo-

for a certain level of service. It is not apublic toilet and the entrant cannot seekthe shelter of the Supreme Court deci-sion if he intends to relieve himself andmove on without a contractual obliga-tion to use other facilities.

The Supreme Court has also stated aclub or premise opened only to serve itsaffiliates or members shall not be con-sidered a public place for the purpose ofthis provision of law.

So there are exceptions.In its spirit, the provision under law

can be so interpreted: “If a citizen ofIndia is not denied admission purely on

Down in the Dumps!

O

Can the government make it mandatory for hotels and restaurants to give access tothe general public to their toilets based on Article 15(2) which prohibits restriction insuch places? Surely toilets are not outhousesBy Bikram Vohra

34 April 3, 2017

the basis of his/her religion, race, caste,sex or place of birth, his admission to arestaurant or a hotel owned and operat-ed by the government or private con-cerns may be prohibited as the rights ofadmission may be reserved with themanagement of the premises.”

RIGHT OF ADMISSIONIt has nothing to do with rich and poor,so let’s not even go with that argument.It is an invasion of the institution’s rightof admission and is legally, morally and

environmentally wrong on severalcounts. For one, the ` 5 does not coverthe usage of soap, colognes, water, tow-els, dryers, sanitation staff, toilet rolls,tissues and cleaning materials and thegeneral crowding of the facility. Not tomention the damages. What is ` 5worth? Anyone can walk in, includinghoods and hoodlums. And, then, how do you stop them lounging around inthe lounge or parading about in otherparts of the hotel while waiting to go tothe bathroom?

Second, it makes a dog’s breakfast ofsecurity and all that stuff of checkingout luggage. These eateries and hotelsbecome soft targets and compromise thesafety of their residents. How do youstop people from moving into otherplaces in the hotel, including taking ele-vators to other floors, generally playingmayhem with the security of the roomsand having a blast? For a hundredrupees which today buys you diddley ina bag, you can make 20 visits a day justmucking about.

Hookers, pickpockets, thieves, con-men, drug dealers, the regular Mr FixIts who are known to the staff and usu-

ally kept away, can now trot in for ahandwash and the toilet and thumbtheir noses at the security personnel.Whoever came up with this absurd ideahas no clue how unfeasible and unwork-able it is.

PAY FOR PRIVILEGEYou pay for privilege and that is just theway things are. You travel first class on aplane, you don’t want economy passen-gers going to your loo. It is the samewith hotels and eating houses. The toi-lets are not outhouses and are integralto the experience one is paying for.

Imagine, if you will, having a coffeeand paying top whack for the promise ofcomfort and then discovering you haveto stand in a queue like at a railway sta-tion junction while coupons are beingdished out to all and sundry so they cantake a leak. Tomorrow, this could extendto toilets in the health club. So by thesame logic, why should there be anyresistance to people choosing to go tothe gym toilet?

Take it a step further. The safety ofwomen and children is also compro-mised. Toilets are dangerous places andwith the high density population inDelhi, one would be hard placed toavoid a certain paranoia if your youngdaughter or wife has gone to the ladiesroom in what will be an open house.

This is in the daytime. Move that tolate night when the gremlins come outto have some fun. Don’t let’s make thisinto an “everyone is equal” thing.Everyone is not equal beyond a certainpoint and the financial investment isjust that difference.

By the same logic, why not alsooffices, government and private, excuseme, here’s five bucks where’s the execu-tive bathroom. All that the hotels can dois up their security measures and makeit immensely difficult to pay that fivebucks to get to the toilet.

You are welcome, sir, by law, but youhave to wait till the X-ray machinestarts functioning, we have a problemand we cannot compromise security, youunderstand that.

You pay for privilege and that isjust the way things are. Youtravel first class on a plane,

you don’t want economy passengers going to your loo.


MATTER OF PRIVILEGEGuests at an upscale bar

enjoying the luxe ambience

Illustration: Anthony Lawrence

Crime/ Targetting Atheists

N the morning of March16, 31-year-old scrapdealer and atheist H Farook received aphone call, started histwo-wheeler and left

home. That was his last trip. He hadbeen receiving threats over the past fewweeks for running a 400-strongWhatsApp group that discussed theways and thinkings of legendary socialactivist EV Ramasamy Periyar. He was asked to close the group, but had refused.

That day, Farook was waylaid by agang of four who stabbed him in thestomach and neck. His lifeless body wasfound near the CoimbatoreCorporation’s sewage farm. On March17, Podanur Sriram Nagar resident MArshad surrendered to the police, claim-ing responsibility for Farook’s murder.Coimbatore DCP S Saravanan told themedia that Farook, a DravidarViduthalai Kazhagam member, hadangered the Muslim community by voicing his rationalist opinions on social media.

Farook’s murder is the latest in aseries of murders of rationalists in Southand West India in the last 3-4 years.These included those of MM Kalburgi,Narendra Dabholkar and GovindPansare. Even Bangladesh, our neigh-bor, has had instances of such killings,while in 2015 in Karachi, social workerand rights activist Sabeen Mahmud wasshot dead for similar reasons.

Supreme Court advocate and Human

Will God Have Mercy?Despite the constitution having enough safeguards against persecuting practitioners of thisphilosophy, the murders of H Farook, MM Kalburgi, Narendra Dabholkar and Govind Pansareshow that the perpetrators usually go scot-freeBy Sucheta Dasgupta

ORights Law Network director ColinGonsalves said that Farook’s death,apart from being a murder punishableunder Section 300, is also a breach ofseveral Fundamental Rights. Theseinclude Articles 119(1)(a) dealing withfreedom of speech and expression,19(1)(c) on freedom to form associationsand unions, 221 (right to life or protec-tion of life and personal liberty), 225(freedom of conscience and free profes-sion, practice and propagation of reli-gion) and 228 (freedom as to attendanceat religious instruction or religious wor-ship in certain educational institutions).

RIGHT TO FREEDOM“This is pure and simple fascism. This ishow Hitler in Germany, Mussolini inItaly and Franco in Spain came topower—on the basis of intimidation ofpeople. The government has done noth-ing to protect constitutional freedoms.People are persecuted for exercisingtheir rights. Fifteen RTI activists diedbefore the law was passed. Why has thepolice not done its job? Fanaticismacross the religious divide must be con-demned,” Gonsalves stressed.

Courts have given divergent judg-ments regarding religious freedoms. Inthe Stanislaus vs State of MadhyaPradesh case, Reverend Stanislaus ofRaipur had challenged the MadhyaPradesh Dharma Swatantrya AdhinyamAct which prohibits the use of “force,fraud, or allurement” for religious con-versions. But the Madhya Pradesh HighCourt in 1977 upheld this Act. However,

COLD-BLOODED MURDERH Farook was killed on March 16

36 April 3, 2017

facebook

Private Member’s Bill shows that thegovernment is not interested in protecting the rights of its people. Hesaid that under Article 551(a) which listssome Fundamental Duties, the people ofIndia, “which automatically implies thegovernment, too, must develop the scientific temper, humanism and thespirit of inquiry and reform”. “If the cultural environment in ourcountry is not improved, such incidents are bound to take place,” Pancholi said.

Another topic of debate is whether aMuslim can be an atheist. Does that give rise to conflict? Is that a moral paradox? Not so, believes All IndiaMuslim Personal Law Board executivecommittee member Kamal Faruqui.

“Whatever school of thought a personbelongs to, killing him for that reason isnot only to be condemned but is a seri-ous humanitarian issue. The Quranclearly says, ‘Unto you your religion,unto me mine.’ There is another surahwhich says: ‘There shall be no compulsion in the religion. The rightcourse has become clear from thewrong.’ So it is up to the individualto believe in the faith. If he does good things, he will surely be rewarded.”

Religion or the lack of itis clearly an issue which grips people in India.

when the Orissa Freedom of ReligionAct was challenged in the Orissa HighCourt, the Court held that the definitionof “inducement” was too broad andruled against the Act. However, theSupreme Court heard both these casestogether and ruled in favour of the Acts.

It is to be noted that Farook had notresorted to any force, fraud or allure-ment to propagate his views. He wasalso not engaged in any act that wasagainst public order, morality andhealth, which are the safeguards againstthe unbridled exercise of Article 25.

RECOGNISE ATHEISM?Farook’s death also highlights theimportance of his activism in the con-text of the faith he was born into. Thereis no room for the atheist philosophy inthe three Abrahamic religions—Islam,Christianity and Judaism. This opens upthe question: Does India need a consti-tutional amendment to include the free-dom of irreligion as a fundamental rightor any other law to officially recogniseatheism given the spate of killings ofatheists in recent times?

Both Gonsalves and senior advocateND Pancholi disagreed. Pancholi saidthat the freedom of irreligion is “builtinto Article 19 as the freedom of thoughtand the freedom to believe or not

believe any religion”. “There is no harmtrying. The parliament is unlikely topass it for this reason, but it would leadto discussion on the need to recogniseatheism as a philosophy. This will indi-rectly influence public perception andbehaviour towards atheists,” he said.Gonsalves interpreted atheism as a partof Article 25—freedom of religion.

Incidentally, according to the 2011Census, about 29 lakh people, or 0.24percent of its 1.25 billion population, arecategorised under “religion not stated”.Of them, 33,000 identified themselvesas atheists, according to the Census.

On March 10, MP Shashi Tharoor hadeven introduced the Anti-Discrimination and Equality Bill 2016, aPrivate Members’ Bill, in the Lok Sabha.This was meant to ensure equalitybefore law for all citizens so as to protecttheir personal liberty and address various injustices.

Pancholi said that the fact that it is a

HEINOUSKILLINGS(From far left)Sabeen Mahmud;NarendraDabholkar; MM Kalburgi;Govind Pansare

Does India need a constitutional amendment to

include the freedom of irreligion as a fundamental

right or any other law to officially recognise atheism?


Gender/ False Cases

38 April 3, 2017

VEN as the Jat agitationcaused tension this year, sto-ries of alleged gang rape byprotestors from this commu-nity last year at Murthalforced the Punjab and

Haryana High Court to order the stategovernment to probe the matter.However, the state police was not ableto make much headway. Senior officerssay there was no evidence that any gangrape took place. It is a unique case of a“gang rape” which has no victim, nocomplainants and no witnesses.

However, in view of the repeated

“pulling up” by courts, the police “pickedup some boys” for investigation. Theforensic examination of the boys did notmatch the clothes allegedly found fromthe “site of the rapes”. In an attempt towriggle out of the situation, the boysnamed some others in the village.Subsequently, those named were pickedup and made to undergo tests.Currently, five of the accused are out onbail after no evidence was found againstthem. Residents of Hassanpur villagefrom where boys are regularly pickedhave now started protesting.

This is just another instance where

innocent men are implicated in falsecases. There was another reported case in February this year where a 22-year-old from Ghansoli in NaviMumbai was accused of outraging themodesty of a schoolgirl in 2014. He wasacquitted by the district court after shedeposed in court that he had beenframed by her family.

District judge Ashutosh NKarmarkar acquitted Prashant Kambleof all charges under the Protection ofChildren from Sexual Offences Act andSection 509 (word, gesture or actintended to insult the modesty of awoman) of the IPC. Kamble was bookedin September 2014 following a complaint that he was following the girlto school. However, her cross-examina-tion revealed discrepancies and shefinally admitted that he was innocent.

WHAT BRAVEHEARTS?However, the most well-known case ofboys being falsely implicated and arrest-

My Word Against Yours

E

There are numerous cases of men being falsely implicated by girls. It is only the courts that can offer succor as

a recent case in Sonepat showed, where three boys wereaccused of sexual harassment

By Vipin Pubby in Chandigarh

NO EMPOWERMENT THIS!A still from the video that

shows two girls beating upthree boys in Sonepat in

November 2014

she had made a mockery of the judicial system.

The woman, a mother of two, lodgeda complaint at Hari Nagar Police Station alleging that in June 2014, thethree men had raped her. Initially, shedeposed before the court that a thefttook place in her house in May 2014, inwhich `1.2 lakh belonging to her hus-band and a gold earring of her mother-in-law were stolen. She said she hadbeen friendly with one of the threeaccused and when her husband came toknow of it, he told her that the articleswere stolen by her friend and asked herto report it to the police.

The woman later claimed that shegot to know that the rape charge hasbeen added against the men and thatthey had neither raped nor threatenedher. The court directed its staff to file a court complaint against thewoman before the chief metropolitanmagistrate for furnishing false information to the police.

The court acquitted the three menand noted that during her cross-exami-nation, the woman stated that she hadestablished physical relations with oneof the three on her free will and theother two were his friends.

Unfortunately, such cases clog courts,slowing down the wheels of justice. It is obvious that a change of heart isneeded from all those involved so thatgenuine cases which are languishing foryears are speedily heard.


ed was in November 2014 when a videowent viral of two Haryana girls beatingup a couple of boys in a moving bus foralleged sexually harassing them. One ofthe girls even took out a belt even as theboys kept arguing that they had done nowrong. The media followed this caseand hailed the bravery of the two collegegoing girls and that too in a state wheretheir gender is given a raw deal andwhere the sex ratio is the worst in thecountry. Channels rushed teams tointerview the “bravehearts” and othersinvited them over for studio interviewsand discussions. As the girls basked inglory, no one questioned the boys.

However, recently, a Sonepat courtdecreed that there was no merit in theclaims made by the girls—Aarti andPooja—about sexual harassment andthat the three boys were innocent.Almost 40 witnesses in the case backedthe boys and claimed that there was adispute over seats in the bus but therewas no incident of sexual harassment.

Additional Chief Judicial MagistrateHarish Goyal, Sonepat, observed:"There is no material which can be usedto frame charges against the accused...."Discharging the three youth in the case,the magistrate said: “From their (girls’)statements, it is clear that the real dis-pute arose because of the seat number.”

Pointing out the contradictions instatements recorded before the magis-trate, the court stated: “Neither in thecomplaint, nor in the statements, is itstated as to what type of words wereused by the accused. So without actualanalysis of the words, it is not primafacie proved that the accused did any-thing that can be covered under Section354-A (sexual harassment) of the IndianPenal Code (IPC).”

TRAUMATIC EPISODEAlthough it took a little more than ayear for the victims to get justice, thereare numerous false cases of a similarnature which remain pending in courtsfor years together. Even after the victimsare acquitted, it takes a lifetime forthem to get over the trauma and loss of

face. No wonder, then, that one of theaccused in the Sonepat case, Mohit, saidafter the court verdict: “Insaf to mila,izzat aur naukri kahan se ayegi? (Wehave got justice but what about ourprestige and jobs?)”

What is worse is that often the mediablows up such cases. Rape, sexualharassment and molestation are primefodder for channels and as the mediagoes into an overdrive, a PIL is filed bysomeone or the police gets involved,leading to court cases.

Actress Vidya Balan spoke outagainst this tendency when news reports appeared that she had been“molested” in Kolkata. She explainedthat one of the fans had put a handaround her waist while taking a selfieand that she had objected to it.However, she stressed, that such an inci-dent cannot be termed as molestationand declined to report it to the police.

However, courts across India see alarge number of false cases filed by husbands and wives or lovers. LastOctober, a Delhi court ordered that aperjury case be lodged against a womanfor levelling false rape charges against three men. The court said that

Actress Vidya Balan spoke outagainst false cases when

reports appeared that she hadbeen “molested”.

UNI

UNDESERVED BLAME Activists from the All IndiaDemocratic Women'sAssociation demanding aprobe into the Murthalassault case

Telecom/ Trade Practices/Idea-Vodafone Merger

40 April 3, 2017

T a recent event in Delhi,Reliance Industrieschairman and the foun-der of Jio telecom net-work, Mukesh Ambani,boasted that his network

would cover 99 percent of the countryby the year-end and be upgraded to 5Gas well. This may seem like an idle boastbut statistics prove otherwise. WhileIndia’s largest telecom network Airteltook nearly 16 years to reach its current307 million customer base, Jio hasreportedly surged to 100 million in amatter of months.

But with British firm Vodafone andAditya Birla Group’s Idea network

announcing a merger recently, itbecomes India’s largest telecom entityand the world’s second largest, with 400million subscribers. Will this process ofconsolidation lead to a duopolistic oroligopolistic market? (see box)

Jio is still on a free mode, and willswitch over to a paid one only on March31. Analysts speculate an immediateslump of 50 percent in subscriptionthen, but this could be premature con-sidering that Ambani still has to revealhis payment plan.

CONSOLIDATION GAMESo far so good for the Indian consumer.However, if we look at the top three

telecom companies, we see a consolida-tion of sorts. Assuming that Jio managesto retain its 100 million consumer baseafter recovering from the projectedslump, the total number of peoplehooked on to the three networks—Jio,Airtel and Idea-Vodafone—will be 807million. If we add Anil Ambani’s RCom-Aircel-MTS’s which has a 195 millionbase, the total number of subscriberswould be over a billion.

In the voice section, there could be alarge subscriber overlap—of up to 50percent—but the real money is in datawhere the overlap is expected to be notmore than 20 percent. Hence, the criti-cal subscription base will be around 900million, around 75 percent of the popu-lation. It is immaterial what percentageof revenue each company collects fromthe market because that will keep chan-ging with the plans they come up withfrom time to time.

However, freebie schemes could vio-late the Monopolistic and Restrictive

A

This merger has created India’s largest telecom entity, leavingjust 3- 4 players in the fray. Will it lead to a duopolistic or oligopolistic market with the consumer being squeezed? By Sujit Bhar

Network Issues

UNI

Trade Practice Act, 1969 (replaced bythe Competition Act of 2002) whichsays: “In many cases, depending on thestructure of the transaction, territorialrestrictions, exclusivity, non-compete,price control mechanisms, freebies, lotteries, discounts, the agreement orpractice could mean a violation of theMRTP Act.”

Technically, a freebie can be in placefor a short period, to be renewed with anew one. This is what Jio has done,despite its competitors crying foul. TheTelecom Regulatory Authority of Indiadid not take any action.

JIO’S DEEP POCKETSWhile a stable of four companies mayseem like a fair spread of competition,one should remember that Jio has deeppockets and could withstand any pricewar to stay afloat for a long time. Theweakest among the four is the RCom-Aircel-MTS combine, which is notexpected to stay on the leaderboard forlong, losing subscribers.

Airtel has been bleeding for a while,having faced rough weather in its for-eign acquisitions (especially in Africa)and chances are that it too could slip abit, losing customers.

And this is where there could be achange. The race horses could be redu-ced to two, making the market highlyskewed. As for BSNL, its performance is so abysmal that it is not even beingconsidered in this debate.

The Competition Act of 2002, head-ed by the Competition Commission of

India (CCI), however, talks about the“Effect Theory”. While it does “not cate-gorically decry or condemn the existenceof a monopoly in the relevant market”, itconcentrates on the “use of the mono-poly status such that it operates to thedetriment of the potential and actualcompetitors….” So while this new act hasbeen given legal teeth to take punitiveaction on errant entities, Section 4 ofthe Act says that “no enterprise shallabuse its dominant position”. Thismeans that a dominant position is okay,but the “Effect Theory” will come intoplay when this position is perceived tohave been misused. Rather vague.

By the same token, ITC is a domi-nant player in the cigarette market andit can arbitrarily change prices due to its position. Legal experts that IndiaLegal spoke to said that there should be constant vigil on the part of CCI and it should take action even if there is no appeal.

ESSENTIAL SERVICEExperts also point out that telecom is nolonger a luxury, but a necessity and anessential service. This is more so due tothe government’s insistence on digitisingIndia. All payment portals are being for-ced to go that way. In such a scenario,data is set to become a money spinnerfor telecom companies.

Coming to the consumer now, thereare two ways in which he can be squee-zed. With telecom developing into anessential service, the consumer musthave data connection. Secondly, if

service providers are reduced to two,three or even four players, oligopolisticsituations could easily arise. And it isdoubtful whether the Competition Actof 2002 will rise to the occasion or beresponsive enough. Sadly, though tele-com will become an essential servicesoon, as per the Essential ServicesMaintenance Act, 1968, it is postal, telegraph and telephone services whichcome under it.

With time, the freebies from telecomcompanies will also stop and that iswhen the price hike will really take off,perhaps in collusion. And the consumerwill no longer be the king.


In the US, competition is guaranteedby anti-trust laws. In the telecomsphere, the 1970s saw a landmark

case: United States vs AT&T Co.The American Telephone & Tele-

graph (AT&T) company was a behe-moth then, with an enviable and virtuallyunbeatable footprint. The US FederalCommunications Commission suspect-ed that AT&T was doing unfair business,

using profits from its Western Electricsubsidiary to subsidise the cost of its network. This meant that it could un-fairly provide cheaper service to beatcompetition.

A case was filed and eventually,AT&T lost. The mammoth company wasbroken up into seven regional Bell Ope-rating Companies and in 1984, a small-er AT&T was formed. It is commonlycalled the Bell System divestiture.

The entire process of using a sub-

sidiary company’s profits to subsidisethe functioning and hence the pricing ofanother company owned by the samegroup becomes an anti-trust case in theUS. Could this happen in India? ThinkReliance Industries and Jio.

Duopoly (noun): A situation inwhich two suppliers dominate themarket for a commodity or service.Legal systems in stable democra-cies abhor monopolistic or duopo-listic trade practices. They kill com-petition, quality and accountabilityand create juggernauts that cantweak markets with ease, ultimatelyharming the consumer. Oligopoly (noun): A state of limitedcompetition, in which a market isshared by a small number of pro-ducers or sellers.On the face of it, this might noteven seem like a monopolistic situation, till a detailed comparisonis made of the prices consumerspay in various markets.

Defining terms

An anti-trust case?

Supreme Court benchcomprising Chief JusticeJS Khehar, Justices DYChandrachud andSanjay Kishan Kaul hason March 24 issued a

notice to the Election Commission ofIndia on a petition filed by lawyer MLSharma that electronic voting machines(EVMs) can be tampered with.

The petition also said that the vot-ing process must be carried through the ballot paper as it was done earlier.The Court asked the EC to reply withinfour weeks.

Interestingly, Dr SubramanianSwamy, Bharatiya Janata Party memberof the Rajya Sabha, was one of the fewto point to the unreliability of EVMs

and suggested the remedy of a papertrail in 2012. On October 8, 2013, Jus-tices P Sathasivam and Ranjan Gogoidirected the Election Commission toadopt the Voter Verifiable Paper AuditTrail (VVPAT) on the petition filed byDr Swamy among others.

Earlier in the week, there was a two-day, six-hour short duration discussionon electoral reforms in the Rajya Sabhawhich focused on EVMs and the possi-bility of them being hacked and manip-ulated. The context was the February-March seven-phase Uttar Pradeshassembly election, and the BharatiyaJanata Party (BJP) winning 325 of the 403 seats

The suspicion that there could besomething wrong with the EVMs came

from the losers, espe-cially the BSP and itsleader, Mayawati, whenthe UP election resultwas announced onMarch 11. The party’smember in the RajyaSabha, Satish ChandraMishra, posed the issuein stark terms, carryingforward his leader’sviews. But Mishra wasnot alone. Anil Desai ofthe Shiv Sena madeclear his party’s misgiv-ings about EVMs.

In his reply to thedebate on March 23, Minister of Lawand Justice and Electronics and Infor-mation Technology Ravi Shankar Prasadblamed the BSP and other Oppositionparties for being bad losers, and for rais-ing questions about EVMs in their hourof defeat. He pointed out that the BSPdid not raise the issue when it won theUP assembly election in 2007, and nei-ther did the Samajwadi Party when itwon the election in the state in 2012.

VIRTUES OF EVMsPrasad was quite eloquent in defendingthe functioning of EVMs and singingpraises of the machine. Two of thevirtues of the EVM he mentioned werethat ever since it was used in electionsbeginning 2004, the old menace of

The Ghost in the MachineCan EVMs be manipulated? That’s the question Mayawati and the BSP posed, post-UP assembly elections, though the govt maintains that is not so

A

My Space Parsa Venkateshwar Rao Jr

TAMPER-PROOF? Electronic Voting Machinesbeing commissioned by officials of the Electronics Corporation of India in Agartala

42 April 3, 2017

ten six letters to the government forfunds for VVPATs, and that in despera-tion, he went to the unusual extent ofwriting to the prime minister in Feb-ruary. It was underlined that the CEC, aconstitutional authority, always writes tothe President and never to the PM, andthere was a sense of desperation whenthe CEC wrote to the PM directly.

SHORTAGE OF VVPATs Prasad made it clear that the EC insist-ed that only a PSU should manufacturethe VVPAT. He pleaded that money wasnot the issue, but the production capaci-ty of the PSUs. There are now 30,000VVPATS, and the required number is 16lakh, which is the number of EVMs inservice. Mishra said that if in the lastthree years only 30,000 VVPATs weremanufactured, it would take 160 yearsto produce the required number. Thepeople of this country cannot wait for160 years, he remarked.

The debate remained purely politicaland even partisan as it was bound to be.So, some of the general questions thatneeded to be asked about the function-ing of EVMs and the deeper questionsof the fairness principle should not beignored. It can be argued and convinc-ingly too that the EVM is efficient andhas helped reduced crude riggingthrough the capture of booths and ballotboxes of earlier elections. But it cannotbe ignored that there could be glitchesin EVMs as there could be in anymachine, and that it could mix up votes.The paper trail envisioned through theVVPAT helps in checking this.

Prasad is certainly right when hepoints out that the EVM has helpedmake the Indian election process fairand efficient, but he and the BJP seemblind to the possibility of malfunction-ing of the machine. Instances of EVMsshowing more votes cast than the num-ber of voters in a particular booth can-not be brushed aside as loser’s gripe.EVMs need vigilant monitoring. TheEVM cannot ensure fair elections. It isthe people, the EC and political partieswho have to do that.

booth capturing had ended, and “invalidvotes” which added to a big total in elec-tions have now disappeared.

Curiously enough, to defend the useof EVMs, he said that it was being usedin Brazil, Venezuela, Mongolia, Bhutanand the Philippines. Opposition leaderspointed out that major democraciessuch as the US, Germany and Francestill use the ballot paper. Prasad shotback saying that the Opposition shouldget rid of its inferiority complex andtrust the Indian scientists who came upwith the EVM and set an example to therest of the world.

He, however, issued many clarifica-tions about the EVM. He said it wasmanufactured by public sector units—Bharat Electronics Limited and theElectronics Corporation of India. Heassured the House that whenever EVMsare manufactured, they would be doneonly by a PSU. He said that even theElection Commission had insisted thatproduction of EVMs should be with aPSU. He also clarified that the EVM wasa self-contained machine and not linked

to the internet or any other device.Therefore, it cannot be manipulatedfrom outside or hacked.

Where Prasad went soft and partiallysilent, and where Opposition leaders,including Mishra, struck home was withregard to the Voter-Verified Paper AuditTrail (VVPAT), which is to be attachedto the EVM. This helps in confirmingthat when a voter has pressed a buttonon the EVM, his vote went to the candi-date he voted for. There is a deepermoral issue at stake here. The voter hasthe right to know that his vote did notgo anywhere other than to the person itwas intended for. If the voter has adoubt, the VVPAT will help clarify.

Mishra and the leader of theOpposition, Ghulam Nabi Azad, pointedout that in its October 2013 direction,the Supreme Court had asked theElection Commission to induct VVPATsin a phased manner. Azad said the ChiefElection Commissioner (CEC) had writ-

MAKING A CHOICEPeople stand in queue tovote in Faizabad

If in the last three years, only30,000 VVPATs were

manufactured, it would take 160 years to produce the

required number.


Media/ New Channel

HE union law ministry isall set to make its mark onthe small screen. If allgoes according to plan,the “law and legal studieschannel” will soon be on

the free Desk to Home bouquetSwayam Prabha of the HRD ministry. Itwill be educative in nature and will dis-cuss important judgments of the highcourts and the apex court. It will alsohost discussions on new and existingstatutes and explain legal nuances.

The new channel has been proposedto educate the public as well as law stu-dents about the legal system and thelaws of the land. There is apparentlyserious concern on the quality of teaching in several law colleges. Thethinking is that substandard educationchurns out substandard professionalswho become part of the legal system.Law Minister Ravi Shankar Prasad,himself a senior lawyer, has been push-

The toll-free facility will be uplinked bythe Bhaskaracharya Institute of SpaceApplications and Geo Informatics(BISAG). Programmes which are curric-ula based will consist of videos, dia-grams and pictures to assist learning.

So far so good. But like any govern-ment controlled channel, this one toohas its share of sceptics who have doubtsregarding the possible choice of pro-grammes. They feel that political andsocial issues likely to be featured willend up one-sided with a particular lineof argument conducive to the govern-ment being promoted.

Take the case of Article 44, a consti-tutional provision on which the BJPgovernment and the Muslim communityin particular hold divergent views. Itenvisages a uniform civil code for citi-zens which does away with the norm oftriple talaq that a section of conservativeMuslims swear by. Similarly, Article 47requires the state to “endeavour to bring

A proposed government-runTV channel is aimed at educating the public as wellas students on legal issues.However, it can serve its purpose only if it does notbecome a mouthpiece of the governmentBy Rakesh Bhatnagar

Ting for the channel.

The initial format will be similar toKrishi Darshan and other governmentchannels. The new initiative is awaitingapproval from the HRD ministry, theUniversity Grants Commission and theBar Council of India. The feedbackabout the programming is that it willfocus on subjects of common interestincluding sensitive ones like the tripletalaq, the Uniform Civil Code, as well as debates on crucial judgmentswhich have a strong bearing on politics,the executive, parliamentary democracy,freedom of expression, environmentand the basic rights and duties of citizens.

Initially, the ministry seeks opera-tional rights to run the channel, whichwill begin with airing shows for fixedhours every day and later switch to a24x7 format. The channel will also beinteractive with a toll-free number forstudents so that they can clear doubts.

Law 24x7

44 April 3, 2017

Anthony Lawrence

about prohibition of liquor.” This is acontentious issue. So is Article 48,which expects the state to take steps toorganise agriculture and animal hus-bandry on “modern and scientific lines”and take steps for preserving andimproving the breeds, and “prohibitingthe slaughter, of cows and calves andother milch and draught cattle”.

Within hours of YogiAdityanath taking over thereins of government in Uttar

Pradesh, a few slaughter houses pulleddown the shutters out of fear. The bigquestion then is how will the new chan-nel address such issues or will it stayclear of them?

In order to make its legal educationprogramme interesting, the law ministryis considering hiring leading film direc-tors like Prakash Jha to produce qualityprogrammes. Jha was recently commis-sioned by the government to make 15five-minute short films for the NationalLegal Services Authority aimed at creat-ing legal awareness.

According to senior lawyerAruneshwar Gupta, the best learning oflaw would be through the telecast ofcourt proceedings in important matters.Sanjay Parikh, a lawyer who is knownfor his engagement with public interestissues, lauds the law ministry’s decisionto launch its own TV channel. “It canbecome an important tool to spread

awareness among people regardingimportant legal issues. People mustknow their fundamental rights as well astheir fundamental duties. They mustknow about the legal obligations of thestate. It goes without saying that theright to freedom of speech and expres-sion can become meaningful only whenpeople are empowered by providingthem information about their legal andconstitutional rights. There are multipleareas where people have to be educatedsuch as the laws concerning women,children, environment etc”.

Adds Parikh: “People still do notknow how the government functions atdifferent levels and what the role of pan-

chayats and gram sabhas is. The mar-ginal and vulnerable sections of the soci-ety, including farmers and tribals, haveto be made aware not only of theirrights but how they can protect theirrights. The channel can introducehealthy debates on important politico-social issues as well as on importantjudgments of the Supreme Court andhigh courts.”

But a word of caution is requiredwhile applauding the new channel. Theprogrammes and discussions on thechannel should be free from any biases.It should not become a mouthpiece ofthe party in power or project its politicalideas. But that is a tall order.

LEGAL EYELaw Minister RaviShankar Prasad; volunteers from thePeople for the EthicalTreatment of Animalshold placards inBangalore remindingpeople that cow’s milkmay be the “perfectfood” but only forcalves; men load acow onto a truck inNew Delhi


UNI

UNI

Global Trends/ US/Constitutional Crisis

46 April 3, 2017

HE present American politi-cal tragi-comedy starringDonald Trump, with off-camera support fromVladimir Putin, is strikingly

like a Rubik’s Cube. The puzzle seemsimpossible to solve, then it looks agoniz-ingly close to being finished, but the lastfew clicks are difficult to accomplish.

This political crisis is not going toend well. It is the biggest US constitu-tional crisis since 1861. What aboutNixon and Watergate, you ask. Because

of vice-president Spiro Agnew’s convic-tion for corruption, America had a non-elected “clean” vice-president in thewings when Nixon walked away fromthe Watergate impeachment.

If this team in the White House isconsidered illegitimate, who succeeds aTrump resignation or impeachment?What can this incompetent Congressbring itself to do? All those apocalypticHBO and Netflix movies about Americaafter the plague, war, mini-revolution,come to mind. Trump has always been

willing to bankrupt things when hefailed at his original goal. CouldAmerica be his closing act?

In a 1978 case involving fairness in aPunjab election, the Indian SupremeCourt cited the second president of theUS, John Adams, who wrote some 200years ago: “Remember, democracy neverlasts long. It soon wastes, exhausts andmurders itself. There never was a demo-cracy that did not commit suicide.”

Instead of medical examiners lookingfor the cause, what we have at this

The Closing

Act?Will the links between the US and Russians hit America at its core? Will the compromisedmaterial Putin has trigger Trump’s resignation? If so, how can his own team succeed him?By Kenneth Tiven in Washington

T

Ambivalence is when you have pos-itive and negative feelings aboutthe same thing. The dominant

emotion depends on variables. AmongTrump supporters, polling in the US sug-gests there is very little ambivalence.They like what they see on TV and readon the websites they like.

I interact with a Trump supporter who

has been one of my closest friends formore than 35 years. We agree on manythings. We like literature, smart people,Formula 1 car racing, good food andtechnological toys and devices. Poli-tics is not something on which we agree at all.

Understand him and maybe you canbetter understand other Americans. It

is not a case of smarts or education. Heis brilliant as a writer, though most of hiswork has been as a photojournalist. Hehas a tidy video business that supportshim in his retirement from mainstreammedia, along with tax-free social securityand military disability payments.

He survived Vietnam and doesn’t, tomy knowledge, criticise my militarycareer spent with a typewriter in a state-side office.

I have incredibly rich and successfulfriends. I know how they live, how theythink and what they do with their money,which is mostly to give it away. Trump isthe aberration—not bright, not inquisi-

The “Unfairness” of it AllDespite the US president’s hectoring style, some Americans like him asthat is what they secretly would like to use against those perceived as luckier than them

moment are federal intelligence and in-vestigative agencies, reinvigorated jour-nalists, all examining in detail a cam-paign timeline and tweets that corre-late once seemingly random events withpolitical events.

An evidence trail of cyber politicalwarfare with internet bots and trollsoriginating on Eastern European ISPs isemerging, plus Julian Assange andWikileaks. There is boasting in Moscowpolitical circles about the success of thiscyber war in electing Donald Trump.

Writers learn three things quicklywhen becoming journalists: Ask theright questions, you get the rightanswers. Always follow the money. Andthirdly, if you do both of those, be care-ful because it can get you killed.

Reuters asked: Who bought those ex-pensive apartments in Trump-brandedbuildings? Combing through real estaterecords, the news agency learned that atleast 63 individuals with Russian pass-ports bought nearly $100 million worthof apartments in seven Trump-brandedbuildings near Miami, Florida. Becauseso much real estate ownership is hiddenin shell companies, it is impossible topin down the full extent of Russianownership.

The respected Guardian newspaperin London, in reporting a series it calls“The Global Laundromat”, notes thatDeutsche Bank figures in many money-laundering cases and is also on record as loaning Trump $300 million.

Trump himself bought a $40 millionmansion in Florida as an investmentand flipped it to a Russian Oligarch for$100 million. The new owner immedi-ately tore it down.

Now comes the information thatPaul Manafort, who was for severalmonths before the political conventionsthe campaign manager for Trump, pock-eted perhaps $40 million in four years’work for a Russian Oligarch. His work

was how to influence elections inUkraine and Europe. This, without registering as an agent of a foreign government as required by US regula-tions. Much of this apparently was sheltered from tax authorities in Russiaand the US.

Are we at the point where Manaforttosses Trump under the bus trying tosave himself from a lifetime in prison?More importantly, does the Putin gov-ernment in Moscow declare victory inupsetting America at its core and pub-licly take credit for winning this cyberwar? This is the best way to remind therest of the world to be nice to theRussian bear.

They could do this with an old Soviettactic, releasing “kompromat” or com-promised material they most probablyhave on him from his trips to Moscow,or have manufactured for this purpose.If this triggers his resignation, there is an interesting question of successionbecause if Trump was elected “illegiti-mately”, how can his own team succ-eed him?

Or does Trump attempt to do whatMrs Indira Gandhi did in 1975—declarea state of Emergency and rule by dec-ree? For much of the Emergency, mostof Gandhi’s political opponents wereimprisoned and the press was censored.Several other human rights violationswere reported from the time.

This scenario is no less improbablethan many Bollywood movies. But it ismore than an American problem. It is aglobal problem. The lesson here is thatmovies and reality television are make-believe and not a reliable guide to lead-ership, policy, or political performance.

Game of Thrones. Game of Trump.Less obvious sex and violence. No lessriveting.

The writer has been a journalist inAmerican media for more than 50 years,including stints at The Washington Post,

TV network news with NBC, ABC andCNN and was involved in the start up of

Aaj Tak and continues to work with several Indian news channels


tive, not philanthropic, not actually suc-cessful in business. But lucky, yes. OhMy God, lucky.

I think how many of his people feel isbased less on conservative politicalthought than it is on what is actually thelife blood of talk radio in America: theLimbaughs’ of talk radio criticise peoplewho are successful—money, better cars,better houses, vacations, security aboutthe future. The con is that they got thoseattributes by luck or by screwing some-one out of the opportunity. The listenersare losers only because of bad luck ortiming. This “unfairness” is what talkradio preachers shout. There is a

demonisation of the “other”, which by definition, is applied to people ofcolour and immigrants.

When my friend says he believes theNational Enquirer tabloid headline—“Hillary Clinton Adopts Alien Baby”—before he believes mainstream newspa-pers, I have to ignore it, just figuring he’strying to get a rise out of me.

It is going to take some seriouslyincredible evidence, maybe from Putinhimself, to convince the supporters thatTrump is actually a fraud. The bully tac-tics and tell-it-like-it-is language aresecretly what they would like to useagainst enemies, real and perceived.

GAME OF THORNSThe Putin govt can upset America at itscore by releasing compromised materialthey most probably have on DonaldTrump from his trips to Moscow

Photos: UNI

48 April 3, 2017

Media Watch

The Securities and ExchangeBoard of India (SEBI) doesnot want its employees to

be too media-friendly. It is reliablylearnt that last week the HumanResources wing sent a note to allSEBI employees directing them tolimit their interactions with mem-bers of the Fourth Estate. The note generatedat the alleged instance of the new chairman,Ajay Tyagi, was very pointed: “No employeemay contribute to the press without the priorsanction of the Competent Authority or with-out sanction, make public or publish anydocument, paper or information which maycome in his possession in his official capaci-ty.” The note went on to add: “Further, it is advised that staff members shall not

meet or talk with media except with explicitpermission of competent authority. Violationof the above would be viewed seriously andmay result in disciplinary action.” The newemphasis for secrecy is inexplicable,although journalists were informed by friendsin SEBI that the gag order was to preventembarrassing leaks. Attempts to contact the“Competent Authority” for an explanation pre-dictably drew a blank!

Ever since theRajasthanPatrika group

launched Catch, amulti-media digital plat-form for news, it hasbeen in the news, for all the wrong reasons. Itwas launched withmuch fanfare, and twoprominent journalistswere hired to helm theproject—BharatBhushan, former editorof Mail Today, andShoma Choudhury, ex-managing editor ofTehelka. However, with-in months, Choudhurywas asked to put in herpapers, no notice, noexplanation. As shewrote in a message tothe staff: “In a com-pletely unexpecteddevelopment, on 27February, I was calledto Jaipur by the directorof finance and told that,since Catch has nowbeen successfully cre-ated and stabilised,Patrika no longer wantsto keep me on as itseditor-in-chief. I wasasked to stop comingto work from Monday,29 February...” Now,another hitch seemsevident—for almost anentire week, the portalfroze its coverage withthe same stories being featured without achange or an update. Itis now back, sansexplanation, but clearlythere are issues.

The catchin Catch

Gag Order

Spreading its Wings

Narada TV CEO Matthew Samuelis back in the news. Accordingto reports, he has told the CBI

that the sting operation he conductedwhich exposed Trinamool leaders wasfunded by a Rajya Sabha MP fromMamata Banerjee’s own party! Samuelallegedly revealed to the investigatingagency that he was paid `85 lakh forthe operation while he was working forTehelka magazine. However, hereleased the footage only after he quitthe publication and started Narada TV.The sting, which showed 12 Trinamoolleaders, including ministers, acceptingbribes was aired just before the 2016assembly elections in West Bengal. Butit did not have any impact on the for-tunes of Mamata Banerjee who rompedhome victorious.

Sting in the Tale

At a time when newspapers and printpublications are downsizing andcost-cutting, it’s heartening and sur-

prising to see one paper upping its game.The venerable Statesman, headquartered inKolkata, is looking to expand its north Indianpresence and even start its own TV channel!Currently, the paper is distributed in Kolkata,Bhubaneswar, Siliguri and Delhi. It is seen asa paper serving Eastern India and its Delhiedition has a limited circulation. It is, howev-er, a 140-year-old institution with a crediblereputation, and the search for new marketsand an electronic foray, is big news. Thepaper’s representatives say the plan is tohave editions in the main state capitals innorth India and use the editorial resources tobranch into television news.

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Dangwimsai Pul “This note was dictated much ahead of my husband’s death after good amount of planning”

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HERE’S the bad news. The WorldHappiness Report released lastweek shows India ranked 122

on the list of the world’s happiest coun-tries, down a few places from last year;what really hurts, even below Pakistan.Now for the good news. It must be fakenews or rigged EVMs since there is somuch for Indians to be happy about.Here’s why every Indian should besinging “Don’t Worry, Be Happy”.

Yogis becoming Politicians: The closest wegot was when Morarji Desai was PMand he tried to inculcate his asceticways, including urine therapy, on therest of us. Now, with a genuine yogi aschief minister, the happiness indexshould be peaking. He will usher in aspiritual awakening, has vastadministrative experience as headof a mutt and according to BJPspokespeople, everybody’s happy.The Muslims are happy becausehe treats them so well, the bovinepopulation is happy because theycan now roam free and unmolest-ed on the expressways built byAkhilesh, the women are happybecause the moral police is ensuringthey roam free and unmolested as well,and there will soon be milk and honeyflowing freely. As the PM said, UP willnow stand for Uttam Pradesh.

Kohli is President: Virat Kohli is President,according to the Australian media. Thatshould make everyone happy exceptthat they compared him to DonaldTrump, which is a bit of a doosra; theycalled him the Donald Trump of worldsport. Still, it testifies to the fact thatAustralian cricketers and the accompa-nying media rate him so highly. Asanother superstar Amitabh Bachchantweeted: ‘‘thank you Aussie media foraccepting that he (Kohli) is a winner

and the President!’’ Considering his fanfollowing in India, from Eden Garden toRashtrapati Bhawan may be just a fewcenturies away. Howzatt!

India’s GDP: In the context of the happi-ness index, India’s GDP is like Bhutan’sGross National Happiness, everybody’sso proud of it. Why does the world’sfastest growing economy not rankhigher in the World Happiness Index?After all, we have, as Yogi Adityanathreminded us, a prime minister who is aglobal icon, a finance minister who is

breathing new life into the country’seconomy (ignore Jethmalani and otherinsignificant naysayers like AmartyaSen and Ruchir Sharma), farmers whoare over the moong dal, thanks tobumper harvests, and a new Indiaemerging. When will it be here? 2022.Can’t wait.

Toilet Training: Thanks to the South DelhiMunicipal Corporation, now anybodycan walk into a five star hotel in southDelhi (the equivalent of Manhattan’s

Upper East Side) and drop their draw-ers while thumbing a nose at the man-agement. The scheme, called Pee andPay or Pee Pee for short, has caughthotel and restaurant owners with theirpants down, since it makes a mockery oftheir Rights of Entry, which will now befrom the backside, as some signs say. So,with squatter’s rights established, it isclear that everybody is going to beminding their Ps and Queues. Ecstasyand Equality.

Women’s Safety: It’s always been a blackmark on the India story, the lack ofsafety and security for women in gener-al who go through an agni parikshaeach time they step out of the house.Now, we can rejoice, the trend is being

reversed even as we write, with UttarPradesh showing the way withwomen-protection squads, or anti-Romeo squads (poor monoga-mous Romeo). Vigilante justice isnever a good thing but in the cur-rent mood of euphoria, nobody’sobjecting. Innocents could be

beaten up, goons unleashed, but asthe Americans said when bombing

Iraq and Syria—collateral damage isan acceptable price to pay for thespread of democracy—or demagoguery.

Second Innings: Navjot Singh Sidhuspreads happiness wherever he goes,the cricket field, comedy shows andnow, within the Congress in Punjab.His new captain (Amarinder) was,however, not amused with him being aminister by day and a joker by night (asa regular opener on the Kapil Sharmacomedy show on television). It’sliterally a laughter challenge butwhichever way it goes, as long asIndian politics can give us a few chuck-les every now and then, we will top thatHappiness Index.

The Happiness Index

Satire/Dilip Bobb

50 April 3, 2017

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RNI No. UPENG/2007/25763 Postal Regd. No. UP/GBD-197/2014-16

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