india legal 30 september 2014 single pages smallest

NDIA EGAL L STORIES THAT COUNT

Film courtrooms: Reel vakils

September 30, 2014 `100

www.indialegalonline.com

IThe courts step in to control rampant misuse of the much-needed anti-dowry laws as weapons of vindictive persecution

Kerala liquor law:Bottoms down

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WHO ARE THE VICTIMS?

CBI MESS: Director’s directoriesSHANTI BHUSHAN: Facing the heatSEX WORKERS: Green light ahead

Lions and the law: Rip-roaring rumpus

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HOW WILL THE US TAME

ITS OWN MONSTER? 68

SECTION 498A

ISLAMIC STATE

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PLUSWill J&K see a Hindu CM? The politics of toilets

LETTER FROM THE EDITOR

ing that there are some seven eligible per-sons waiting for this post. And tongues arewagging that Dr Nigam enjoys this specialprivilege because her daughter happens tobe married to the son of Shashi KantSharma, none other than the powerfulComptroller and Auditor General of India(CAG), who is the nation’s top constitution-ally created watchdog for keeping a vigil onfraud, waste and mismanagement in thegovernment. The post is ranked along withthe judges of the Supreme Court in theIndian order of precedence.

This is indeed a bizarre story. DrNigam was actually given a fond,warm official farewell on August,

2014, after she completed her second exten-sion. Curiously, on September 1, 2014, a new30th firman (office order 427/2014)descended from way up high, signed by thedirector (MA) of the headquarters of ESIextending her services “wef 01.09.2014” foranother year.

So where does the buck stop in thisunusual grant of what seems to be an obvi-ous act of patronage in violation of the meritsystem. Sources say that the director generalof ESI Corporation had opposed the thirdextension based on the availability of eligiblecandidates and consequently, according tothe babu lingo, “the file was returned” by theMinister, Labor and Employment.

ROM time to time, I will carry inthis space commentaries and reve-lations concerning irregularities inmatters of governance—whetherperceived or real—that cause con-

cern regarding the sanctity of legal andadministrative procedures. India’s last gen-eral election was fought on the issue of pro-bity, and Prime Minister Narendra Modi hasmade it his personal mission to ensure that,like Caesar’s Wife, his ministers and bureau-crats are cleaner than a hound’s tooth.

It is for this reason that matters such asthe one brought recently to my attentionbear scrutiny. It concerns repeated, ques-tionable extensions of service granted to Dr Renuka Nigam as Deputy MedicalSuperintendant (DMS) of the Indira GandhiEmployees State Insurance (ESI) Hospital,in Delhi. This is a mammoth governmentundertaking handling medical treatment ofthose who qualify under the government’sliberal health insurance benefits. The fundsinvolved in handling tenders and contractsare huge.

The DMS directly deals with these mat-ters. It goes without saying that the post is aplum job, a coveted assignment—and DrNigam, 63, is now on her third extension inthis assignment following a series of back-to-back extensions given to her after sheattained the prescribed retirement age of 60years. Is this usual? Perhaps not, consider-

F

ESI AND THE BUDDY SYSTEM

INDERJIT BADHWAR

4 September 30, 2014

such officers and given training beforehandthereby minimizing the number of proposalsavailable for extension” (Page 652, Swamy’sManual 2012).

The concerned department, I believe, isdefending the ESI extension on grounds oftime requirements and immediate eligibilitycriteria etcetera. Personally, I do not believethat a good officer should be retired at agesixty. I am all for a hefty raise in the retire-ment age so that humans are not put out topasture in their prime. Be that as it may, inthe current scenario, an extension results inthe denial of promotion to scores of officersand staff down the line.

There is a precedent that is notewor-thy. When a proposal for extension ofGR Nayar, former Insurance Commi-

ssioner, was forwarded in 1989—a timewhen that post was classified as one of thefive posts of principal officers and the gov-ernment was appointing officers through theAppointments Committee of the Cabinet(ACC)—the move was shot down and a per-son in the feeder cadre with only six months’service was promoted by relaxing the periodof residency by 4 1⁄2 years.

The provisions for relaxation in therecruitment regulations in the “general” sidehave always been used for promoting peoplein the lower cadre to stimulate vibrancy inthe functioning of the organization and notfor extension for seniors to cause stagnancy.

It is not for me to judge Dr Nigam’s com-petence or integrity. But the circumstancesof her extension do raise questions aboutfavoritism and bending the rules to favor apowerful official at the expense of qualifiedcandidates. In the US, they call this the“buddy system”.

Fairly, or unfairly, fingers are beingpointed at “intervention” from the PrimeMinister’s Office for brushing aside objec-tion and pushing the unprecedented serviceextension. I am not for a moment suggest-ing that Modi personally intervened, or evenhas the slightest knowledge of it. But that’sthe perception price he must pay because ofhis image as a vigilant taskmaster, running atight ship under an omniscient, watchful eyeon every minister and ministry.

And the watchful eye, surely, mustfirst examine whether an extensionin service in the ESI Corporation is

a simple matter. Point of fact, it is not. Thebabucracy has been careful to create anelaborate obstacle course. The Governmentof India prescribes filling a form with theproposal. Here are its elements:

In the case of medical officers, aDepartmental Promotion Committee (DPC)should be convened by the corporation toconsider the cases of all eligible officers. Inorder to give an incumbent an extension,the committee’s findings must show that allthe eligible officers in the “feeder cadre” areunfit. If the officers in the cadre are eligiblefor time-bound promotion, the proposal forextension should not result in denial of pro-motion to them.

In the case of vacancies in the “general”side, the UPSC plays a role. It must convenethe DPC and find that all the eligible per-sons in the feeder cadre are unfit for promo-tion. The general rule is that the crucial dateof eligibility for the vacancies, which occursin a financial-year-based-vacancy-year, isthe preceding January 1st. But, there is nobar to promote officers who become eligibleon that day to be considered for promotionagainst vacancies that occur during the peri-od from 01.01.2013 to 31.03.2013.

India’s Department of Personnel andTraining clearly states that a “systematicreview of the officers approaching the age ofsuperannuation should be conducted well inadvance so that whenever necessary, suit-able persons are selected in time to replace [email protected]

5INDIA LEGAL September 30, 2014

The circumstances of Dr Nigam’s extensionraises questions about favoritism and bending the rules to suit a powerful officialat the expense of qualified candidates.

SEPTEMBER 30, 2014

CONTROVERSY

Comprised Bureau of InvestigationCBI director Ranjit Sinha’s visitors’ diaries reveal his connections with influentialcorporates named in the Coalgate and 2G scams. A probe by VISHWAS KUMAR

11

AAP leader’s real faceSC excoriates senior lawyer Shanti Bhushan for a dubious attempt toinfluence a case. A report by INDIA LEGAL TEAM

15

Article 498A: A litany of misusesIt was meant to provide succor to hapless women suffering abuses at the hands ofin-laws; instead, the anti-dowry law has become a tool for educated urban womento harass men and their families. BHAVDEEP KANG and VISHWAS KUMARpresent some harrowing cases to highlight the lacunae

22

Where collegiums failedVeteran journalist and Rajya Sabha member HK DUA criticizes the collegium system for never laying down the criteria for appointment of judges

MY SPACE

FOCUS

LEAD

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VOLUME. VII ISSUE. 26

Editor-in-Chief Inderjit Badhwar

Managing EditorRamesh Menon

Deputy Managing EditorShobha JohnSenior EditorVishwas Kumar

Contributing EditorGirish Nikam

Associate EditorMeha Mathur

Deputy EditorPrabir Biswas

Assistant EditorSomi Das

Sub-editorR Parvathy

Art DirectorAnthony LawrenceSenior Visualizer

Amitava SenGraphic Designer

Lalit KhitoliyaPhotographer

Anil ShakyaNews CoordinatorKh Manglembi Devi

Production Pawan Kumar Verma

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Number 2 solutionNarendra Modi’s team has come up withan ingenious way to woo dalits andchange electoral arithmetic in the northIndian states of UP and Bihar—providethem toilets, writes VISHWAS KUMAR

30

42Tipplers’ troublesKerala chief minister’s decision to declare the statepartially dry has been met with widespread oppositionfrom several quarters. TK DEVASIA assesses thefinancial and social implications of the move

SOCIETY

60Filmy adalatsHeated arguments, incredulouslogic, dramatic monologues,last-minute evidence and mostdramatic turn of events— JUI MUKHERJEE takes a lookat Bollywood courtroom sceneswhich, howsoever unrealistic,bring a filmy script alive

SPECIAL STORY

64The stamp of faithA temple near Almora sees devotees from acrossthe country appeal to Golu Devta for favorable decisions in court cases—submitting their requestson stamp paper. A report by RAMESH MENON

HUMAN INTEREST

POLITICS A L S O

Cover Design: ANTHONY LAWRENCE

Green light for red light areasDIVYA A probes whether legalizing prostitution willlower crimes against women, as well as provide abetter future for sex workers

48

REGU

LARS

Letter from the Editor …............ .........................................................4Letters…..............................................................................................8Quote-Unquote ...............… ................................................................9Ringside..........................… ..............................................................10Supreme Court..................................................................................17Courts................................................................................................20Briefs .................................................................................................77Consumer Corner..............................................................................78Is That Legal?....................................................................................80Wordly-wise .......................................................................................81People ...............................................................................................82

Cover Photograph: ANIL SHAKYA

34Mission KashmirThe BJP has embarked upon an ambitious mission of securing the chief ministership in the state. Its manoeuvres vis-à-visPakistan and separatist leaders, and its promptness during the floods, might just win it the day, writes VISHWAS KUMAR

Lawyers question a newconsumer bill that doesaway with their need indeciding cases ...……..51

Irom Sharmila’s struggle against AFSPAand media’s ignorance ofthe issue...................….54

The tussle between MP and Gujarat over Gir lions…...............…..56

America’s Frankensteinmonster IS, and the trailof atrocities in Iraq….…68

Can a hefty compensation sum giveback a falsely accusedperson his wastedyears?...........................76


Please email your letters to:[email protected]

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

Nagar, Noida (UP) - 201309

Crying for attentionYour editorial Maa Ganga will test Modi’s leadership (September 15, 2014) was evocative,informative and lyrical. Developmental concernshave tortured and maimed the river, so intrinsicto India, its culture and traditions. AlthoughNarendra Modi made tall promises beforeassuming power that he would free the riverfrom all the ills plaguing it, the progress report,as of now, is not promising at all. If Modi can dowhat the river needs, he will walk with glory inthe comity of nations.

Sandhya Gulati, Delhi

Packed with infoI enjoy reading the SupremeCourt, Courts, InternationalBriefs, Is that Legal? ConsumerWatch and the People pages. Itis amazing how so much ofinformation gets packed in.They offer a good read whenthere’s paucity of time. Also, thechoice of news is very interest-ing. Kudos to India Legal. I amalready looking forward to reading the next issue!

Usha Raman, Chennai

Monitoring the WestI enjoyed reading the story,Preacher’s Folly in theSeptember 15, 2014, issue. Wealways admire the West aboveall, especially the US, but thisstory proves that the West isnot squeaky clean either. Theyare equally, perhaps moreguilty, in committing grosshuman right violations.

It will be good if IndiaLegal covers international stories regularly to provide us abetter insight on world affairs.

Vinod Lal, Mumbai

LETTERS

www.facebook.com/indialegalmagazine

www.twitter.com/indialegalmag

Ills plaguing sportsI am happy to note that your magazine regularlytakes up issues that are of public interest.However, it would be nice if India Legal publishedcorruption in sports bodies and the government’sapathy towards the development of sports,except cricket.

The government is still sitting on the contingents’ names for the Asian Games atIncheon, South Korea, starting from September19. As a result, India could not be part of theDelegates Registration Meeting, so crucial for registration of athletes to stay in the games village It just smacks of a casual approach.

Samaresh Das, Kolkata

Save the birdsI enjoyed going through the photo essay on birds(On the Last Flap, September 15, 2014). It is real-ly disheartening to see exotic and regular birds disappearing due to natural as well as man-madereasons. I was especially shocked to read thatIndian pharmacies continue to sell Diclofenac,which has been long banned.

I remember when I was a kid, our housewould be filled with the chirping of the adorablesparrows, but I haven’t spotted one in five years!Their silence is a wake-up call for us.

S Ramaswamy, Delhi


“If you look at Modi’sreality, quite clearly heis anti-Muslim, anti-Pakistan…” there is no reason why weshould be treating himlike a viceroy…”

—Former Pakistan presidentPervez Musharraf, on PM

Narendra Modi’s Pakistan policy. ARY News

“There is no constitutional provisionor even a statutory rule that the senior-most judge of the SupremeCourt should be appointed as theChief Justice of India.”—Justice Markandey Katju, on appointment of

CJIs, in his latest article

“I knew that agreeing to write mystory would need me to be completely honest, as that’s theway I have always played the game.”

—Sachin Tendulkar, onthe impending release

of his autobiographyPlaying It My Way.

The New Indian Express

“He made it clear in severalways that he wasn’t happy withthe fact that I was drawingmore applause.”

—Annapurna Devi, late Pandit RaviShankar’s former wife, on her

popularity wrecking their marriage. The Times of India

“Who would like to stay confinedto a prison room for years?Everyone wants to lead a happylife and so do I. But my crusadeis of greater importance”

—Civil rights activist Irom SharmilaChanu, on whether she longed to lead

a normal life. The Times of India

“Today, you can put me in aboxing ring. I may not be ableto beat another boxer, but I’llbe able to give her a toughfight. I’ve learnt it that much.”

—Bollywood actress Priyanka Chopra,on her abilities as a boxer after playing

the role of boxer Mary Kom in thebiopic film. Deccan Herald


QUOTE-UNQUOTE

“In our state if the same situation develops, we will

think. Nobody is untouchable”

—West Bengal ChiefMinister MamataBanerjee, on the

possibility of the TMCtying up with the CPM.

Chobbis Ghanta, aBengali channel

“The world will not wait for us. Wehave to run ahead of time. Weshould not say in 2014 that a projectconceived in 1992 will take somemore time.”

—Narendra Modi, asking DRDO to deliverprojects on time. The Times of India

Our government... teaches the whole people by its example. If the governmentbecomes the lawbreaker, it breeds contempt for law; it invites every man tobecome a law unto himself; it invites anarchy.

―Judge Louis Brandeis

VERDICT


CONTROVERSY/ CBI director/visitor logbook

ranjit sinha is in a tight spot. influential corporate honchos meeting himare under the scanner for coalgate and 2g scams By Vishwas Kumar

THERE is more to the controversial visitors’ log-book at Central Bureau of Investigation (CBI)Director Ranjit Sinha’s residence than meets theeye. In fact, some of the visitors are indirectlylinked to the Niira Radia tapes which, four years

back, exposed the nexus between corporate lobbyists, politi-cians, bureaucrats and journalists.

Preliminary analysis of Sinha’s list reveals the names oflobbyists and middlemen who escaped scrutiny in the Radiatapes, as their names didn’t figure in it. Among them are TonyJesudasan and AN Sethuraman, Anil Ambani’s employees;Deepak Talwar of Talwar and Associates, who is close to for-mer minister Praful Patel; Shiv Babu alias Shiv Kumar, whoreportedly works for a top corporate which has interests in oil,gas, telecom and media; and Sunil Bajaj who works for Essar.(See Box: Roll of Dishonor)

UNDER SCRUTINYSo, why were these lobbyists meeting Sinha? The answer issimple. The companies they work for are under CBI’s probe.In some cases, these visitors are directly under the agency’sscanner. And they obviously need help. But the SupremeCourt probe into Sinha’s logbook and constant monitoring ofCBI’s handling of 2G and Coalgate scams have made mattersworse for these powerful corporates. Besides the fear of get-ting convicted and jailed, these visitors also fear losing thevast sums of money they made through scams. The 2G and Coalgate scams alone led to a loss of `3.76 lakh crore tothe exchequer.

Sinha, however, has defended his meetings with these lob-byists, saying no favors were granted to them. But facts tell adifferent story. Take the case of Anil Ambani’s employees.Sinha’s logbook reveals that between May 2013 and August

COMPROMISEDBUREAU OFINVESTIGATION?


Anil Shakya

2014, Jesudasan and Sethuraman visitedSinha’s residence 50 times in 15 months, ie,almost every week.

Juxtapose this with Sinha’s letter in April2014 to 2G case’s Special Public ProsecutorUU Lalit (now a Supreme Court judge). Itsaid there was an urgent need to “re-exam-ine” the charges against six accused ofReliance ADAG (Anil Dhirubhai AmbaniGroup) due to “fresh evidences” in the case.The letter came at the time when the casewas in the final stage of trial, long after thechargesheet had been filed. This shows thatthere was a link between the visits to Sinha’shouse and his letter.

STRANGE INTERPRETATIONMoreover, Sinha wanted a change in CBI’sfundamental premise on which it had built acase against those accused in the 2G scam.His letter argued that “Clause 8 of USAL(Unified Access Service License) guidelinesshould apply only to licenses’ companies andnot to the applicants.” Clause 8 states that nosingle company or legal person, either direct-ly or through its associates, shall have sub-stantial equity (10 percent or more) holdingin more than one licensee company in thesame service area.

Since Reliance Telecom was already hold-ing several telecom licenses, the CBI foundthat it had violated USAL’s Clause 8 by hav-ing substantial control (more than 10 percent) in Swan Telecom, one of the many

AN Sethuraman & TonyJesudasan: Corporate lobbyists with Reliance ADAG.Their colleagues are involved inthe 2G scam.

Ashok Agarwal: IndianRevenue Service officer probedby the CBI, when he served inthe Enforcement Directorate, forallegedly implicating several bigbusinessmen. After a long suspension, he is back in thejob, facilitated by CBI’s changein stand.

Moin Qureshi: Meat exporterwho is being probed by the ITDepartment for Hawala deals.His links with former CBIDirector Amar Pratap Singhcame to light during this probe.He is known to an influentialcorporate lobbyist.

Deepak Talwar: Corporate lobbyist named by CBI in one ofits preliminary enquiries in theNiira Radia case.

Sunil Bajaj: Corporate lobbyistworking for ESSAR group.

Ruia: Could be a member ofthe Ruia family that owns Essargroup. Involved in 2G scam.

Anil Bhalla: A close associateof Abhey Oswal, a close relativeof Navin Jindal. Several ofJindal’s companies are underCBI probe in the coal scam.

Shiv Babu: Corporate lobbyistconnected to a top corporatewith interests in oil, gas, telecomand media.

Nahata: Could be Mahendra

Nahata, owner of HFCL. He soldHFCL Infotel to Mukesh Ambani.

Subodh Kant Sahay: Formercabinet minister in the UPA government. His brother’s company is a beneficiary of coalblocks.

Devender Darda: Son ofCongress MP Rajendra Darda,who is charge-sheeted in one ofthe coal cases.

Rajendra Darda: Congress MPwho was probed in the coalscam.

KD Singh: TMC MP and ownerof Alchemist Group. The ITDepartment recently raided hiscompanies and the EnforcementDirectorate too is examining it.

Dr Ketan Desai: Former president of the Medical Councilof India; was probed by CBI incorruption cases.

Vinay Saigal and SandeepSaigal: Vinay runs an exportfirm and Sandeep is a customsclearing house agent.

Pravesh Jain: A promoter ofParas Dyes and Chemicals.

Shailendra Pratap Singh:Corporate lobbyist working forseveral companies.

Mithlesh Jha: A retired juniorengineer, who is said to be aclose relative of an influentialbureaucrat working in theMinistry of Finance.

Rajshekhar Reddy: Could notbe identified.

Shiv Pal: Identity not known.

Honored guests?Names in the logbook of CBI director Ranjit Sinha



Anil Shakya

DUBIOUS NEXUS(Facing page) CBI directorRanjit Sinha, whose visitors’ logbook haskicked off the probe;(above) former cabinetminister Subodh KantSahay, whose brother is abeneficiary in coal allot-ments and whose namefigures in the logbook; UU Lalit, specialpublic prosecutor in the2G scam, who objected toSinha’s stand

successful companies that had obtained a 2Glicense during the tenure of former TelecomMinister A Raja. In Reliance’s case, the appli-cant was DB Realty owner Shahid Balwa’scompany, Swan Telecom. And as per Sinha’sargument, if Clause 8 didn’t apply to Swan,the entire case against Balwa and Reliancewould collapse. However, Sinha’s interpreta-tion of Clause 8 of USAL will not be limitedonly to Ambani’s company officials. It can beused by other accused companies, whichhave similarly flouted the clause. It couldstall the entire trial at the final stage.

Lalit, who was appointed by the SC toassist the CBI in court, strongly objected toSinha’s suggestions. In a letter to Sinha, hewrote that “the draft (letter) sent by the CBIis tantamount to weakening the case.” The SChas now taken the letters exchanged betweenSinha and Lalit and is examining them in thewake of the fresh controversy which haserupted over the logbook.

CBI OVERRULEDSimilarly, in the Coalgate probe, Sinha want-ed to close the case against 14 companieswhich were beneficiaries of 64 coal blocksallocated by the government. All these coalblocks, as per the Comptroller and AuditorGeneral, were given by the government tocompanies at throwaway prices without fol-lowing the auction process. Followingprotests from PIL petitioners in the case, theSC took an unprecedented step and referredthese cases to the Central VigilanceCommission (CVC).

The CVC overruled CBI’s conclusions andsaid that all these cases need to be probedand a criminal case registered. The SC agreedwith the CVC, casting further aspersions onSinha’s leadership.

Meanwhile, one of the petitioners in theCoalgate case, Prashant Bhushan (he is also a petitioner in the 2G case), recentlydemanded that Sinha be removed from theCoalgate probe. He had also asked the SC toexamine Sinha’s list of visitors and find out ifthere was any nexus between him and these14 companies.

Meanwhile, Sinha has claimed that thelogbook was unauthorized and riddled with

inconsistencies. He also denied the frequencyof meetings, but accepted that he had metthe visitors at his official residence at 2Janpath, New Delhi. The SC on September 9asked Sinha’s lawyer, Vikas Singh, to file adetailed affidavit within 10 days on the alle-gations of influencing the probes being car-ried out on its directions in the 2G andCoalgate cases.

SILENT GOVERNMENTSinha’s alleged hobnobbing with corporateentities that his organization was investigat-ing has shocked many. It has also put theModi government in a tight spot.

Sharad Yadav, president of the Janata


Anil Shakya

Dal United accused Sinha of running a “gangof corrupt officers”. He also questioned whythe Modi government was “silent” though ithad been elected on an anti-corruptionplank? “Why has the government not sus-pended this man (Sinha)? No director hasharmed the CBI as much as he has. Arresthim, suspend him but do something,” Yadavsaid, claiming he had in his possession, doc-uments which would nail Sinha’s involve-ment in “corrupt practices”.

Yadav said a “naked dance of corruption”was happening right under the nose of thegovernment. Earlier, Bhushan, too, had writ-ten a letter to Prime Minister Narendra Modidemanding action against Sinha.

The government, however, is moving cau-tiously in this case. Sinha had already comeunder fire for giving a clean chit to Modi’sclose aide Amit Shah in the Ishrat Jehancase. Moreover, the government is handi-capped due to an earlier judgment of the SC,which gave the CBI director a fixed term oftwo years. While this was done to protect the

director from any “extraneous influences”while carrying out sensitive probes againstthe government, he can be removed in excep-tional circumstances. The governmentwould, therefore, prefer to wait for the SC’sdecision in this case.

However, there are reports that the gov-ernment may ask the CBI director to proceedon leave till the matter is disposed off.Another option is to ask him to voluntarilyrecuse himself from both the Coalgate and2G scams. Sinha, incidentally, still has threemonths in office before he retires onDecember 3.

Ironically, it was the SC’s own decision inthe Vineet Narain case in 2003 that hascome back to haunt it. It freed the “cagedparrot” (as the CBI was described by thejudge) and gave it financial and administra-tive authority. Similarly, last year, Bhushanhad objected to the government’s move toinclude Delhi Police Commissioner NeerajKumar in the list of probable candidates forthe post of CBI director. He brought on friv-olous charges and thus, facilitated theappointment of Ranjit Sinha.

DIN OVER DEALS(Clockwise from top left)

Prashant Bhushan wants aprobe into Sinha’s dealings;JD (U) leader Sharad Yadavquestions Modi’s silence onthe issue; and Ketan Desai,

former president, MedicalCouncil of India, being probed

in corruption cases, was oneof Sinha’s visitors

The Supreme Court probe into Sinha’s logbook and constant monitoring of CBI’s

handling of 2G and Coalgate scams havemade matters worse for powerful corporates.



IL

Anil Shakya

RAREREPROACHthe senior advocate was pulled upby an apex court bench for trying toforce one of the judges to recusehimself from a caseBy India Legal Team

IN a surprising development, a champion againstcorruption was given a rap on the knuckles by aSupreme Court (SC) bench, for being motivated bythe wealth of his client and forgetting his duties tothe court. Senior advocate Shanti Bhushan was

pulled up by Justices Arun Tandon and Arvind KumarMishra for trying to intimidate one of them to recuse himselffrom a case which Bhushan was representing. This is signifi-cant as Bhushan, along with his son Prashant, have beentorchbearers in the fight against corruption. Besides, the for-mer law minister is a patron of the Aam Aadmi Party.

EMBARRASSING INDICTMENTThe bench’s scathing indictment said: “A senior seasonedadvocate should not reflect uncertainty in his accomplish-ments by adopting a sharp practice like deliberately intimi-dating a judge to recuse himself through a theatrical per-formance encouraged only by the purse of his client asagainst his true obligations towards the court and society atlarge, where he keeps preaching all the time about the mal-adies of a corrupt mind. He should not appear hypocritical bypretending to go to heroic lengths in the devilish interests ofhis clients. He should not allow his rationality and objectivityto be overtaken with the aid of aggression and intolerance.”

The case involved the appointment of one Arun KumarMishra to the Uttar Pradesh State Industrial DevelopmentCorporation Ltd (UPSIDC). He was being represented byBhushan, one among the other advocates before him. This

Photos: Anil Shakya

FOCUS/ fraud case/shanti bhushan


heard by some other bench. The applicationwas rejected for being “thoroughly improperand lacking in substance”. On February 21,the matter again came up before the bench,but was filed by another counsel, SiddharthaSingh. But after he saw the contents of theearlier application and the order of the chiefjustice, he himself withdrew the petition. Buta new set of counsels came to the fore, KartikSeth and Anoop Trivedi. As records had notbeen produced by the university concerned,the vice-chancellor was asked to come tocourt. Realizing that his goose was cooked,Mishra apologized and said the February 21application was an ill-advised one. This pleawas placed before court after ShantiBhushan was engaged as Mishra’s counsel.

However, on March 11, 2014, Bhushanfiled an application stating that he wantedone of the judges of the bench, Arun Tandon,to recuse himself from the case. He went sofar as to file a personal affidavit to supportthe recuse application. The bench rejectedBhushan’s request.

But what irked the court was Bhushan’sabsence from court. It said: “He did not havethe courage to press the application beforethe court and conveniently avoided attendingcourt proceedings after sometime.” The courtmade it clear that it was not personally inter-ested in the hearing of any particular case.“The oath of the office commands us to dojustice without fear or favor,” it said. “We holdthis recusal application is motivated with apurpose to avoid this court...It is, hereby,rejected.”

The activism by courts in recent years wasalso evident when it clearly stated: “Thecourt will not hesitate to do whatever is within its lawful powers to protect the inde-pendence of the judicial system of this coun-try, failing which the entire legal systemwould be brought to its knees. We have nodoubt that better sense shall prevail andcounsels shall keep in mind that, for ademocracy to work, independence of judici-ary is utmost and any attempt to browbeatthe court can never be in the larger interest ofa democracy.”

This was indeed a nasty judicial cut on theso-called champions against corruption.

DOUBLE-FACED?Shanti Bhushan (extreme

right) at a meeting withAnna Hazare and Arvind

Kejriwal in June 2011

FOCUS/ fraud case/shanti bhushan

The case involved the appointment of ArunKumar Mishra to UPSIDC. He was

represented by Bhushan, who even filed apersonal affidavit for the recusal application.

appointment was challenged by one AnilKumar Verma, who filed a case againstUPSIDC and four others, including ArunKumar Mishra.

On January 29, 2014, the high schoolmarksheet and examination certificate ofMishra (Respondent 3) were producedbefore a division bench of the SC. But he wasasked to produce the original cross list of thehigh school examination of 1976 with refer-ence to the roll number. At the same time,Awadh University, from where Mishra grad-uated, was asked to produce the cross list ofthe B Tech examination for 1983. The hear-ing was posted for February 5, 2014.

But from the time the case started, Mishraand his advocates tried to get the case heardthrough some other bench as they felt thepresent one was not favorable to them. Thesequence of events shows how persistentMishra was.

DELAYING TACTICSOn February 12, 2014, Mishra’s first advo-cate, Shishir Prakash, made an applicationbefore the chief justice that the petition be IL


Suspended BCCIpresident N Srinivasan is

rather thick-skinned.He asked the SupremeCourt that he be givenback his post, as theMukul MudgalCommittee, probingspot fixing and betting controversy in IPL2013, was taking toomuch time to wind upits report. But this didnot cut ice with theSupreme Court.Srinivasan pleadedthat he needed to be inthe chair for signingthe accounts as BCCI elections were round

the corner. Turning down his

request, a two-judgebench felt thatSrinivasan’s job athand was not that critical for the court toreinstate him, and heneeded to wait tillabsolved of all chargesby the panel.

The bench, censuring the panel,asked it to completethe probe as quickly aspossible. It extendedits tenure by twomonths. Srinivasanwas forced to stepdown as BCCI president in March.

No to Srinivasan

Illustrations: Udayshankar

After NarendraModi’s insistenceon fast-track

courts to decide criminalcases against politicians,and the Supreme Court’scontention that such casescan’t be separated fromothers in the same category, the ball is back in the center’s court.

A five-judge bench,while dealing with a PILseeking removal ofchargesheeted ministers,has put the onus on theprime minister or chiefministers not to includetainted MPs or MLAs,against whom chargeshave been framed by a

trail court in a criminal orcorruption case, as ministers. As a trustee ofthe constitution, the primeminister was expected touphold its propriety, thebench said.

As of now, there is noconstitutional provisionthat debars the entry ofimmoral politicians on thelist of ministers. But thecourt refrained from adding a disqualificationclause to Article 75, andleft it to the wisdom of theprime minister or chiefministers to exercise theirdiscretion on the matterfor upholding morality andgood governance.

Onus on center

SUPREME COURT


SUPREME COURT

Now it is army’s turnThe full-blown

controversy over the2011 Jorhat dacoity

incident that had almosthalted Dalbir Singh Suhag’s(now army chief) elevationas head of the army’s eastern command is back inthe limelight. The SupremeCourt, while taking up apetition from Renu Gogoi,roped in the Ministry ofDefense, Assam govern-ment, army headquarters,Suhag and the CBI as “par-ties” to the whole affair. Italso sought responses fromthe center and Assam gov-ernment on the PIL’sdemand for a CBI inquiryinto the purported crime.

The alleged robbery tookplace at Gogoi’s house inJorhat, Assam, onDecember 21, 2011, underthe so-called “intelligenceoperation” by the Army’s 3Corps Intelligence andSurveillance Unit. The PILpointed out that no actionwas taken after an FIR wasfiled by Renu’s husbandafter cash and valuablesworth several lakhs wereallegedly looted. It pleadedaction against senior officers, Eastern Command,at that time, includingGeneral Suhag, who wasthen the head of GOC 3Corps, for interfering inprobe to shield the “guilty”.

The apex court was facedwith a strange situationrecently: breaking of

decorum by advocates while putting forth their arguments on the National JudicialAppointments Commission Bill. They tried to attract theattention of the concerned benchby speaking out of turn andbeing too loud and provocativewhile expressing their points ofview. Things came to such a passthat the three-judge bench statedthat probably it was time theapex court started a course onbasic etiquette in courts.

A casefor correctbehavior


THE army’s so-called strict and fair court martialprocess came under the scrutiny of the SupremeCourt. It took a dim view of the fact that the armyhad let off senior army officers involved in illegalselling of weapons with just a reprimand or a paltryfine, while dismissing cadets for unruly behavior.

The apex court pointed out the systemic pitfallswhile hearing a 2007 PIL that alleged that aweapons racket was managed by some army officersof the South Western Command in the border districts of Rajasthan.

Aghast at the casual way such a scam was handled, a two-judge bench berated the center andthe army, and asked the government to explain within two weeks why such cases should not belooked afresh to hand out harsher punishment.

For a fair trial

WHILE the media claims it must go the whole hogin covering criminal incidents and related court proceedings under the right to freedom of speechand expression, the accused take objections thatunbridled reporting damages their reputation andinfringes upon their right to privacy. Lost in this dinare the rights of victims.

The Supreme Court took up cudgels on behalf ofvictims who are often at various risks due to theunrestricted flow of information in the publicdomain. A two-judge bench asked the center, statesand UTs to share their regulatory mechanisms,whether existing or proposed, within six weeks, sothat it could figure out the grey areas and framelaws accordingly.

Fighting for victims

THOSE who disapprove of capital punishment willbe gladdened by the Supreme Court considerablynarrowing down the scope of death penalty.

A five-judge constitution bench, in a majorityview, ruled that those sentenced to death can seek areview of the judgment from a three-judge bench(as opposed to two-judge bench earlier), and theproceedings will take place in an open court, unlikein the judges’ chamber before (without hearing outthe petitioners’ lawyers).

The phenomenal judgment is premised on theneed to ensure that the trial is just, fair and reasonable, and to rectify errors, if any, that mayhave influenced the initial judgment.

Another chance to life

Justice HL Dattu will take over from Justice RMLodha as the 42nd chief justice of India fromSeptember 28, 2014. He will remain in office for 14

months and retire on December 2, 2015. Justice Lodhawill retire on September 27, 2014. Dattu joined theSupreme Court as a judge in December 2008.

Dattu appointednext CJI

Public InterestLitigations (PILs) area remarkable tool for

seeking justice from thejudiciary on issues thataffect the public at large.But it has its pitfalls.

There have been manyoccasions when frivolousand irresponsible PILs haveattracted the courts’ attention. Petitioners havegone to court for all otherreasons than “public interest”. One such person,who is a regular petitionerand an advocate, was in aspot after he himself arguedon his PIL, dressed as a

lawyer, seeking the apexcourt’s direction to the center to find out whereSubhas Chandra Bose was.

A three-judge benchpromptly dismissed the PILand slapped a fine of `onelakh on him for wasting thecourt’s time on a “hopelessand frivolous” plea. It evengave a dressing down to theadvocate for breaking rulesby appearing in a lawyer’suniform, when he was “petitioner in person”.However, it reduced theamount to `50,000 after thepetitioner admitted his guiltand pleaded for mercy.

No trivial PILs please


The Ghaziabad sessions court hadissued a death warrant againstSurinder Koli, who was involved

in the Nithari serial murders. However,he seems to have found a temporaryreprieve as of now, since the date of deathsentence, originally fixed for September12, has now been deferred to October 29by the Supreme Court. Koli’s mercy peti-tion was earlier rejected by PresidentPranab Mukherjee on July 27.

Koli and his employer MoninderSingh Pandher was charged with serialkilling of children in Nithari, near Delhi,but Pandher was acquitted by theAllahabad High Court.

COURTS

The Delhi High Court recentlyruled that minors rescuedduring anti-trafficking raids

are victims and not offenders to beprosecuted under the ImmoralTrafficking (IT) Act.

The high court’s legal servicescommittee had challenged a 2009

order by a metropolitan magistrateover the custody of two minors, whowere recovered by the police anddealt with under the IT Act.

The high court ruled that if achild, who is incapable of giving con-sent, is found begging, working, sex-ually exploited or vulnerable to drug

abuse or trafficking, he or she willnot be treated as an offender, butonly as victim.

Moreover, if such a child is below18 years of age and is rescued by thepolice under the IT Act, he or shewill be immediately transferred tothe Child Welfare Committee.

Gagging the media

ABangalore court’s temporaryorder banning some mediaoutlets in Karnataka from

reporting on the rape and cheatingallegations made by a Kannadaactress against Karthik Gowda, theson of Union Railway MinisterSadananda Gowda, was yet anoth-er case of the judiciary gaggingthe press.

The media has often underlinedthat the right to freedom and expres-sion offers it the privilege to followdevelopments in controversial casesand for it to report objectively. Butaccused persons have often soughtthe help of the judiciary to throttlethe media by invoking the Right to Privacy.

Several cases in the past havedrawn the attention of the judiciaryon this issue. In the Nira Radia case,Ratan Tata had approached theSupreme Court protesting that hisprivate conversations with her werein public domain because the mediaviolated his privacy rights.

Similarly, in the Justice Swatan-ter Kumar case, which related tosexual harassment, the Delhi HighCourt—on a plea filed by Kumar, aformer Supreme Court judge—hadrestricted the media from reportingallegations against him.

In yet another case, the then SP

leader Amar Singh had filed a peti-tion in the apex court after some ofhis telephone conversations weretapped and circulated. The courtfirst restrained the media from pub-lishing the contents of the recordedphone calls but later, lifted the ban.

The important aspect is that aperson can’t be deemed guilty unlessthe courts decide, and therefore, themedia should keep away from dis-closing information, especially inhigh-profile cases, as it may “influ-ence” the image of these people.

The judiciary should strike a bal-ance between safeguarding therights to privacy of an individualand shackling the media on infor-mation dissemination.

Death warrant forNithari killer

HC: Trafficked kids not offenders


New post raises eyebrows

Former Chief Justice of India, P Satha-sivam was sworn in as the governor ofKerala early this month. His appoint-

ment triggered a controversy, especially sinceJustice Sathasivam had quashed chargesheetsagainst Amit Shah in the Sohrabuddinencounter. With the government being thelargest litigant in courts today and the subse-quent appointment of numerous SupremeCourt judges in high-profile positions afterthey retire, the independence of the judiciaryhas come under the scanner.

Those against the appointment feel thatthe lure of prime jobs from the governmentoften pushes top judges to curry favor withthe government of the day. So, they should bebarred from taking up constitutional posts.Now, it remains to be seen if the new governorwill act in a fair manner.

More FCTs forspeedy justice

The BJP government has drawn up a proposal to set up1,800 fast track courts (FCTs) across the country to speedup the delivery of justice. The law ministry approached the

14th Finance Commission for the same, since the latter allocatesresources for setting up court infrastructure. As of March 2014,976 FCTs were operational in the country. Setting up of FCTs is theresponsibility of the state government unless otherwise specifiedby the central government through a special scheme.

Prisons across India are chock-a-bloc with people whoare yet to face trial in various offences. Often, theyend up spending more time in jails than they would

actually have, had they been convicted for their respectiveoffenses. To make matters worse, they do not have theresources to furnish sureties or bail bonds, and being illit-erate or underprivileged, have no clue about their rights.

Concerned about this lacuna in the judicial system, theapex court asked lower judicial officers to find out prisonerswho have already served half the maximum period pre-scribed by law for an alleged offense and release themimpromptu. Strangely, the same provision exists in thecriminal procedure code (Section 436A), but was notimplemented.

The court ordered that the exercise be started fromOctober 1 and completed within two months.

Cleansing the system

Illustrations: Amitava Sen


The NewVICTIMSthe abuse of section 498a relating to dowryhas seen many an innocent husband land-

ing in jail. but with the supreme court forbid-ding automatic arrest, succor is in sight

By Bhavdeep Kang

Awoman is murdered fordowry every hour inIndia—a widely quotedstatistic backed by amind-googling numberof news reports onwomen brutally killed

by in-laws or husbands in just the last threemonths. In conjunction with the almost 1.2lakh cases of domestic violence lodged at policestations by battered women in 2013, it wouldappear that wives do, indeed, have a hard time.And yet, it seems the sandal is on the otherfoot—men too are being subjected to extortion,humiliation, emotional abuse and imprison-ment by “disgruntled wives”.

So rampant is the abuse of Section 498A ofthe Indian Penal Code, relating to harassmentfor dowry, that the Supreme Court (SC)stepped in with a directive on July 2, forbid-ding automatic arrest in such cases. It also readthe police a homily on misuse of this provision.

LEAD/ anti-dowry laws

“Section 498-A (has)...dubious place of prideamongst the provisions that are used asweapons rather than a shield by disgruntledwives. The simplest way to harass is to get thehusband and his relatives arrested under thisprovision. In a number of cases, bedriddengrandfathers and grandmothers of the hus-bands and their sisters living abroad fordecades are arrested.”

LEFT IN THE LURCHHow does it work? Let’s look at a case fromMumbai. The wedding over, the newlywedschecked into to a hotel to “rest” before leavingfor the honeymoon. But the bride had otherplans. Three hours after leaving the shaadi kamandap, she informed her husband that shehadn’t wanted to marry him in the first placeand departed (with a substantial amount ofjewellery), leaving the red-faced groom to facehis family, friends and colleagues.

Worse was to come. After several weeks, he


Illustrations: Lalit Khitoliya

ond plunge, only to find that his bride wasschizophrenic and his in-laws were bullyinghim—on the threat of arrest for domestic vio-lence—to sign over his properties to them.

In a bizarre twist to the standard pay-up-or-I’ll-put-you-in-jail plot, a Bangalore-basedInfosys executive murdered his wife in 2010,claiming she had threatened to file a dowryharassment case against him, which wouldrender his aged parents vulnerable to arrest.

WELCOME ORDERIt was, therefore, natural that widespread reliefgreeted the SC directive of July 2. The case thatcaused the court to give this order was a

applied for an annulment on grounds of deser-tion. Two days later, a contingent of Mumbaipolice appeared on his doorstep to arrest himon grounds of harassment for dowry anddomestic violence.

The groom’s story would have struck achord with V (name withheld), who married apretty Kolkata girl in good faith, only to be toldshe was in love with someone else. Unlike thefilm Woh Saat Din, in which the reluctant bridefalls for her unprepossessing husband anddumps her handsome lover, she left him for herboyfriend within a week. To add insult toinjury, she charged him and his entire clan withharassment for dowry. Only a large financialsettlement staved off arrest.

Lawyers have a fund of such stories: aHaryana boy who paid `45 lakh to his estra-nged wife to secure the release of his motherfrom jail; an MNC executive who spent a hor-rifying night in a police lock-up before hecoughed up money; a divorcee who took a sec-


In quite a number of cases, bedridden grandfathers and grandmothers of the husband and even sisters living abroad fordecades are arrested.


MUCH-ABUSED SECTIONThe courts, too, had made the same suggestionin a number of such cases. The high courts ofDelhi, Tamil Nadu and Andhra Pradesh had allanimadverted against knee-jerk arrests. TheDelhi High Court in 2003 observed that 498Awas a “much abused provision and exploited bythe police and the victims to the level ofabsurdity...unless the allegations are of a seri-ous nature and the highest magnitude, arrestshould always be avoided”.

Mumbai High Court lawyer AbhishekKhare says the low conviction rate in 498Acases bears out his own experience—havinghandled over a hundred divorces—that “95 percent are fabricated”. Some states, he says, areworse than others. The police go after the hus-band and family either out of fear of stricturesfrom the court, pressure by NGOs or to makemoney off the accused.

Naturally, beleaguered husbands havebanded together to protest. A host of websitesoffer advice to husbands charged under 498Aor domestic violence: savefamily.in, saveindi-anfamily.org, menrightsindia.net, rakshak-foundation.org, indianfamily.net and 498a.org,to name a few. “A Guide to Surviving IPC 498A” is an oft-downloaded document. Support

standard one: young Arnesh Kumar’s wife hadaccused his parents of demanding dowry incash and kind and kicking her out when shedid not comply. He’d applied for anticipatorybail, which was rejected both by the sessionsand high court, and filed a special leave peti-tion in the SC.

The SC pointed out that almost two lakhpeople had been arrested in 2012 under thesection, of which a quarter were women(mothers, sisters, etc, of the accused). Going bythe statistics, it would appear that harassmentfor dowry is the third most common crime inthe country. What’s more, the rate of charge-sheeting in such cases is close to 94 per cent,while the conviction rate is only 15 per cent.Extrapolating this, the SC said that of the3,72,706 cases pending trial, 3,17,000 werelikely to result in acquittal.

So, instead of knee-jerk arrests, the policeare now required to secure a magistrate’sapproval for detention on the basis of Section41 of the CrPC, which governs arrest without awarrant. If this procedure is not followed, thepolice personnel concerned are themselvesliable to be prosecuted.

In the 15 years preceding this SC verdict, aseries of reports pointing to misuse of theDowry Act had come out. In November 2000,the legal adviser to the Delhi Commissioner ofPolice suggested that Section 498A was beingmisused by women to harass their husbands.The Malimath Committee on Criminal JusticeSystem reforms in 2003 observed that the pro-vision “helps neither the wife nor the husband.The offense being non-bailable and non-com-poundable makes an innocent person undergostigmatization and hardship. Heartless provi-sions...operate against reconciliations”. TheLaw Commission in 2012 said the offensesunder this provision should be made “com-poundable” and arrest resorted to only in casesof serious magnitude.

“If the gas cylinder is exhausted anddelivery of the new one delayed,technically the man can be accusedof abuse.”

-- Rajesh Vakharia, president, Save Indian Family Foundation


National Crime Records Bureau recorded8,233 dowry deaths in 2012, 8,618 in 2011,8,391 in 2010 and 8,383 in 2009.

CAUTIOUS STANCESignificantly, the July 2 SC judgement evokedcautious responses from gender activists andwomen lawyers. By and large, they took anuanced stand, admitting that the law hadbeen misused by a section of women—educat-ed, aware and generally, middle-class. Whatthey objected to was the judgment’s character-ization of complainants as “disgruntled wives”.Senior lawyers like Malvika Rajkotia, PinkyAnand and Rebecca John observed that therewere ample instances of abuse, but warnedagainst diluting the law, as harassment ofwomen was an ugly reality. Besides, every lawhas the potential to be misused.

The flaw, then, lies in the implementation ofthe law. Supreme Court lawyer Santosh Kumarpoints out that the accused in such cases is nota habitual offender. “The husband is not ahardened criminal with a history-sheet, so the

police should not treat him as one.” The policecan refrain from arresting the man and hisfamily while investigating the case, he says,because there’s ample legal protection for thewoman. She has the right of residence and isnot being thrown out into the street and onceshe has filed a complaint, will have a secureenvironment in the home.

Often, Section 498A and the DomesticViolence (DV) Act come into play during acri-monious divorce proceedings. Canny lawyersmake it a point to inform the police authorities,the state Human Rights Commission and theState Commission for Women before filing fordivorce. In some cases, husbands have avoidedarrest by pointing out that their divorce petition preceded the dowry harassment complaint.

A case in point is that of Deepinder

groups are full of advice on how to avoid arrestunder this section: grooms are warned to beobservant and keep an eye out for “symptoms”of impending litigation.

Khare says there’s really no way of avoidingarrest, except to “run away and then file foranticipatory bail”. Exactly what S (name with-held) did. He returned home from work to findhis wife of four years on the landing, accusinghim of domestic violence and dowry demands,within the hearing of his neighbors.Embarrassed and perplexed, he slunk into hisapartment and called a friend. “Pack a tooth-brush and leave,” he was advised. Sure enough,his office called the next morning to say thatthe police were looking for him in a dowryharassment case. He then approached a seniorpolice officer he knew, but was told it was allbut impossible to avoid arrest. “But I didn’t doanything,” he protested. Pat came the res-ponse: “You got married, didn’t you?”

On the flip side is the continuing harass-ment, even murder, of women for dowry. Theseare samples from the month of August: awoman tied to a tree in Chhindwara and burntby her in-laws; dowry death protestors blocktraffic in NOIDA; a former Delhi MLA and hisfamily arrested in a dowry death case. The

Almost two lakh people were arrested in2012 under the section. It would appearthat harassment for dowry is the third mostcommon crime in the country.


Hooda, son of Haryana chief minister BSHooda, who was able to show that he had filedfor divorce before his wife filed a complaintagainst him and his family.

The DV Act has also come in for criticism,not because of its intent but the wide definitionof what constitutes violence. Verbal, emotionaland economic abuse fall within the purview ofthe act and are described in such general termsthat any domestic dispute or denial of expendi-ture—whether deliberate or inadvertent—andperceived shortfall in domestic goods, canamount to abuse.

Rajesh Vakharia, who runs the Save IndianFamily Foundation, essentially a “rights ofmen” organization, says: “The SC itself hasdescribed the law as clumsily drafted...if the gascylinder is exhausted and delivery of the newone delayed, technically the man can be

accused of abuse.” He says the law is discrimi-natory because it defines the home solely inrelation to the wife. “What about the otherwomen in the home—the mother-in-law, thesisters-in-law?”

In his vast experience of acrimoniousdivorces, he says: “I find that the police enter-tain complaints from wives, but not mothers-in-law and unmarried girls. The moment awoman becomes a mother-in-law, she is trans-figured from potential victim to potentialdemon.” The National Commission forWomen, he complains, functions like theNational Commission for Wives.

The SC judgement will surely bring respiteto beleaguered husbands. “Courts have passedstrictures before. But the police have failed torespond. Let us hope that this time, they followthe letter of the law,” says Vakharia.

while laws are meant to provide succor, their misuse can have atorturous effect on victims and their families By Vishwas Kumar

MISUSE of dowrylaws has seenmany an inno-cent men beingframed. Worse, insome cases, eventhe judiciary

sides with the woman’s family, leaving herhusband tortured and at wit’s end. Take thecase of a newlywed couple whose lives wereoverturned due to the misuse of such laws bythe girl’s family. All it took was a suggestionby the boy’s parents that the couple purchasea house jointly in their name. Could this becalled dowry harassment? Prima-facie, itisn’t. But who was to tell this to theMaharashtra police, who not only arrestedthe boy, a software engineer, but also charge-sheeted him.


JUDICIARY FOUND WANTINGBut worse was to follow. Even the judiciary,from whom one expects justice, was no bet-ter. First, the metropolitan magistrate (MM)upheld the police’s case, brushing aside allprotests from the accused and his parents.Then, the additional sessions judge (ASJ) tooagreed with the MM and directed him toundergo trial to prove his innocence. Finally,when the matter reached the high court, theshocked lady judge quashed the criminal caseagainst the accused. She also passed stric-tures against the police and castigated thejudicial officials for non-application of theirmind while passing orders.

The judge severely criticized the girl’s par-ents for conspiring to defame and humiliatethe accused and his family.

Sadly, there have been many cases of

CASE STUDIES


parents also managed to obtain anticipatorybail from the high court.

But worse was to follow. In February2009, the police filed a chargesheet underSections 498A (anti-dowry), 406 (breach oftrust), 506 (criminal intimidation), 323 (vol-untarily causing hurt), 34 (common inten-tion) of the IPC, along with Sections 3 and 4of the Dowry Prohibition Act.

Subsequently, Kaushik’s lawyer, AnujKumar Padhy, filed a discharge petition, firstbefore the MM, then the ASJ and then, theMumbai High Court, alleging that the Punepolice had acted arbitrarily by ignoring theirown Occurrence Report but later did so on a“cooked up” charge by the Ujjain police. Heargued that the Pune police did not register acriminal case when an alleged crime tookplace within its jurisdiction. His petitionswere rejected by the MM and ASJ, but later,the Mumbai High Court accepted it.

Thankfully for Kaushik, Justice SadhanaS Jadhav of the Mumbai High Court quashedthe case against him this July. In her scathingjudgment, she said: “In the present case, itappears that no serious allegations weremade at Chaturshrunghi Police Stationwhich would even warrant prosecutionunder Section 498A and therefore, in allprobabilities, the police officers had notcalled upon the Petitioner No. 3 (Neeraj

abuse of dowry laws. In 2008, two softwareengineers, Neeraj Kaushik and MadhvikaJoshi, fell in love and married. They lived inPune where Kaushik was working with TataConsultancy Services (TCS).

The marriage, however, lasted only fivemonths, as the couple couldn’t reconcile theirdifferences. On June 17, 2008, Joshi filed acomplaint with Chaturshrunghi police sta-tion in Pune, alleging physical assault by herhusband. The police requested her to under-go the mandatory medical examination in anassault case. But she refused. An examinationwould have helped establish the gravity of theinjury and under which section of the IndianPenal Code (IPC) the crime fell. Since thealleged offense, a slap, was a non-cognizableoffense (non-serious in nature), the policedid not immediately register a case.

The next day, Joshi reached her hometown in Ujjain, Madhya Pradesh, and lodgeda complaint with the local police. Surpri-singly, the police immediately registered acriminal case under the provision of ZeroFIR (can be registered without jurisdiction),after she took a medical examination. Themedical certificate indicated that there werebruises on her left eye, right arm, left scapu-lar area and contusion over the left thigh.

Since the offense had taken place withinthe jurisdiction of the Pune police, the Ujjainpolice transferred the case there. And on July4, Chaturshrunghi police station filed a freshFIR (No 297/08) based on the Zero FIR for-warded by the Ujjain police, overlooking itsown Occurrence Report, in which the policehad refused to register a case.

WRONGFUL DETENTIONThe Pune police, then, swung into action andat midnight on September 23, arrestedKaushik. They also swooped down to Delhito arrest his father, Vinod Kaushik, andmother, Uma, but failed to do so. Three dayslater, they brought a handcuffed Kaushik tothe TCS office on the pretext of seizing hispassport. After humiliating him, theydetained him in police custody for anotherfive days on the grounds of recovering “strid-han” (dowry) items, but they never came toDelhi to do so. After eight days in police cus-tody, the trial court released Kaushik on bailon October 1, 2008. Two months later, his

BLISSFUL DAYSNeeraj Kaushik andMadhvika Joshi during their honeymoon inMussoorie

LEAD/ anti-dowry laws / case studies


Kaushik). At the same time, it cannot beignored that Petitioner No. 3 was in fact,arrested by the police in his office and parad-ed as if he was a hardened criminal.

“The police machinery had not onlystopped at that, but sought police custody onthe ground of recovery of the passport of thecomplainant and other articles. The high-handedness and influence of the com-plainant party was writ large on the face ofthe record and the police had detainedPetitioner No. 3 in custody without verifica-tion of the facts. It is a matter of record thatPetitioner No. 3 had to undergo incarcera-tion for a week because of the fact that he wasarrested unaware. The Petitioner No. 3 wasarrested on 26th September, 2008, andreleased on bail on 1/10/2008. The Peti-tioner No. 3 was exposed to social obloquy atthe place of service since he was arrested inthe office, i.e. in the TCS office, and washandcuffed.

“All this would clearly show that the com-plainant was seeking personal vendetta with-out there being any sufficient grounds.”

Justice Jadhav castigated Joshi’s familyfor misusing the provisions of anti-dowrylaws in connivance with police officials tounleash vendetta against her estranged hus-band and in-laws.

MOTIVATED ACCUSATIONSJustice Jadhav also cast doubts about exactlywhat harassment Joshi had undergone. Shecited Black’s Law Dictionary (widely usedlaw dictionary), which defines “harassment”as “words, conduct, or action (usually repeat-ed or persistent) that being directed at a spe-cific person, annoys, alarms or causes sub-stantial emotional distress in that person andserves no legitimate purpose.”

In the present case, she said, it could notbe said that Petitioner No.3 was so persistentin his conduct that it could cause harassmentto the first informant (Malavika Joshi). Thevery fact that she refused to be subjected tomedical examination at Pune would showthat she had no apparent injuries, the judgesaid. The police officer at Chaturshrunghipolice station would have definitely noticedthe bruises if it had appeared on her eyes andother features. Therefore, there was a doubtas to whether the said injury certificate wasconcocted at a place where her parents lived,said Jadhav.

She also clarified what could qualify asdowry harassment. Section 498A of the IPCcontemplates harassment of such a nature,which would coerce the wife or her relativesto meet any unlawful demand for any proper-ty or valuable security or to drive the womanto commit suicide or to cause grave injury ordanger to life, limb or health. “Recitals of theFIR in this case only disclose a stray incidentwhich had occurred due to a verbal alterca-tion between the husband and wife whichwould be a natural affair between couples.Difference of opinion or verbal alter-cation...cannot be termed as harassment orcruelty,” said the judgment.

It also highlighted the grave misuse ofdowry laws. In the present case, the disgrun-tled wife filed the proceedings under Section498A, 406, 323 of the IPC. Thereafter, a peti-tion was filed under the Protection ofWomen from Domestic Violence Act, 2005.And then, proceedings were initiated in thefamily court. Hence, the husband and his rel-atives had to go through legal proceedings inthe same case in three different courts.

Talk about a marriage made in hell.

JusticeSadhana

Jadhav of theMumbai HighCourt came toNeeraj’s rescue

by seeingthrough

Madhvika’smalafide

intentions.

LEAD/ anti-dowry laws / case studies

IL


NDIA EGAL L STORIES THAT COUNT

Medical Crimes: Can victims ever get justice?

September 15, 2014 `100

www.indialegalonline.com

IThe putrefying Ganges is India’s national disgrace. Can Modi deliver on his

campaign promise to revive the world’s holiest river?

Baby-killer Sisters:In cold blood

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CRY ME A RIVER

Who will be hit worst by Court’s Coalgate crackdown?Doshipura: Shia-Sunni imbroglioAt Last: weeding out antiquated billsBribes-for-bank-loans scam surfaces

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DON’TDUMP

THISIDEA!

the bjp has embarkedon an ingenious

project—providingdecent defecation

facilities to dalits—to garner more

sc votes. and it may just work

By Vishwas Kumar

POLITICS/ modi toilets

THERE is more than meets the eye as far astoilet politics is concerned. Prime MinisterNarendra Modi’s ambitious Swach Bharat(SB) scheme to provide toilets for all ruralhouseholds till 2019 is not only aimed atstrengthening his connect with the ruralpopulation, especially dalits and women,

but is being done with an eye on future elections. Though ithas been officially claimed that the 2019 deadline for imple-mentation of the scheme is meant to mark the 150th anniver-sary of Mahatma Gandhi’s birthday, its main aim is to reapelectoral dividends in the general election scheduled that year.

The BJP seems to have taken a leaf out UPA-I’s success inthe 2009 general elections, when the flagship rural employ-ment scheme, Mahatma Gandhi National Rural EmploymentGuarantee Act (MNREGA), was launched.

But what was the reason for a Hindutva icon and corporate

According to a report by the NationalConfederation of Dalit Organizations, nearly48 percent of Indians have no access to toi-lets and are forced to defecate in the open. Inrural areas, this percentage goes up to 60percent. While 42.3 percent of non-dalithouseholds have toilets, in the case of dalits,it is just 23.7 percent. That means thataround 77 percent of dalits will directly ben-efit from the SB scheme between 2014-19.Even the budgetary allocation for SB shows atilt towards dalits. Out of the total `4,260crore allocated for this scheme, `938 crore isfor SCs and `426 crore for tribals.

Dalit activists, however, remain scepticalof the government’s intent because there isno effective strategy to improve their life.

MAKING HYGIENE THE BUZZWORD(Left) School children showing placards at the inauguration of 108 toilets in Badaun, as part of “Toiletfor Every House” campaign of Sulabh International;(Below) Dr Bindeshwar Pathak, Founder of SulabhInternational, inaugurating the toilets along with PunamYadav, Badaun District Panchayat President

India’s favorite politician to suddenly startthinking of rural and dalit voters? Theanswer lies in the stupendous electoral victo-ry forged by the BJP in the 2014 elections.Modi, unlike any BJP leader, was able to cutthrough the caste-ridden politics of the Hindiheartland. Often seen as catering to urban,middle class voters, he was now able to wooeven fringe segments like dalits and women.

It makes sense, considering the size of thiselectorate. Some 72 percent of India’s 1.22billion population is rural. Out of these,Scheduled Castes or dalits constitute 16.6percent (201.4 million), while dalit womennumber 34.8 million. For both these sections,the lack of toilets is an emotive issue andModi is astute enough to understand that.

Photos: UNI


ing in 282 seats. In 2009, it only got 18.8 per-cent of the votes and 116 seats. So who werethe new voters the party added? An analysisof election results shows that it attractedmany dalit and women voters.

Analyzing the electoral gains, RahulVerma of Lokniti-CSDS wrote in The Hinduthat one in every four dalits voted for the BJPin comparison to one in 10 in the post-1990era. “…the BJP has surpassed both theCongress and the BSP (Bahujan Samaj Party)in attracting a larger share of dalit votes. TheBJP’s dalit vote-base in this election is largelythe upwardly mobile sections (urban, educat-ed, middle classes, with high media expo-sure),” he wrote.

And UP had a big hand to play in this, asit has the largest dalit population in India. Inthe 2014 elections, the BJP got 42.3 percentof the votes in UP and 71 seats out of 80.Compare this with 17.5 percent and 10 seatsin 2009. The additional 25 percent votes thatthe BJP added to its vote bank came fromdalits (minus Jatav-Chamar, which remainedwith the BSP).

A similar trend is reflected in Bihar,another state where the BJP performedexceedingly well. Some 22 percent of votersin Bihar belong to economically backwardcastes and dalits. The BJP and its ally, theLJP, led by dalit leader Ram Vilas Paswan,managed to corner 51 percent of the votes,while their rival, JDU, led by Nitish Kumar,got only 35 percent. Nitish resigned as BiharCM and anointed Jitin Ram Manjhi, a dalit,as his successor. This again shows the impor-tant role dalits will play in national politics.

Encouraged by the election results, theBJP’s think-tank, comprising of Modi, partychief Amit Shah and RSS chief MohanBhagwat, chalked out a strategy to activelywoo dalits. Bhagwat’s recent utterance onunity among Hindus is being seen in thiscontext. “For the next five years, we have towork with the aim of bringing equalityamong all Hindus in the country. All Hindusshould be drinking water at one place, shouldbe praying at one place and after their death,their bodies should be burnt at the sameplace,” he recently said in Mumbai.

A similar keenness to woo dalits was evi-dent in BJP’s stand during the recent

N Paul Divakar, general secretary, NationalCampaign on Dalit Human Rights, says: “Itis great that the PM has initiated the SwachBharat campaign and we welcome the deci-sion. It is long overdue. However, the struc-tural, systemic and systematic exclusionarypractices that exist in the country also needto be addressed…. this appears as a materialsolution that does not take into account thepractices of untouchability.”

He adds that merely building toilets is notenough. They have to be maintained andcleaned, and inevitably, dalits would beemployed to do so, perpetuating caste-baseddiscrimination and exclusion, he stresses.

CAPTIVE VOTE-BANKIt was the 2014 elections that made the BJPlook at dalits as a vote-bank. In the polls, itmanaged to garner 31 percent votes, result-

“For ensuring hygiene,waste management and

sanitation across thenation, a ‘Swach Bharat

Mission’ will be launched.This will be our tribute toMahatma Gandhi on his

150th birth anniversary tobe celebrated in the

year 2019.”

PRESIDENT PRANAB MUKHERJEE’S address to parliament in June 2014

“The need for sanitation is ofutmost importance... The

task of total sanitation cannot be achieved without

the support of all. The government intends to coverevery household with total

sanitation by 2019, the 150thyear of the birth anniversaryof Mahatma Gandhi through

Swach Bharat Abhiyan”

FINANCE MINISTER ARUN JAITLEY’Sbudget speech

Clean Sweep?

POLITICS/ modi toilets


Muzaffarnagar riots and other instances ofcommunal tension in Uttar Pradesh in therecent months, especially after the BJP cameto power (see box: Communal conundrum).

SOCIAL ENGINEERINGWhy has the BJP chosen western UP as thearena for its dalit appeasement policy? Theanswer lies in the area’s demographic compo-sition and social structure. Dalits andMuslims equally own around 25 percent ofthe land here. “Unlike most parts of ruralIndia, Muslims in western UP own land.Many of them are Hindu converts, whohaven’t forgotten their caste origins, eventhough Islam is supposed to be egalitarian….Their attitude towards dalits matches that oftheir Hindu brethren: oppressive, exploita-tive and supercilious. This is precisely theobstacle the BSP faces in attempting aMuslim-dalit consolidation,” Ashraf wrote.

Meanwhile, the SP government is provid-ing tactical support to the BJP’s campaign forits own electoral dividends. Since it sees theBSP as a bigger political enemy, it ensuresthat the administration either remains neu-tral or leans towards the minority communi-ty in these clashes. “Both the SP and the BJP

are hand-in-glove to cut out the BSP, which,in the past, has successfully forged dalit-Muslim unity. If Muslims come to the SP andthe majority of dalits goes to the BJP, the BSPwill not able to get sufficient seats based ontheir own numerical strength of the Jatav-Chamar caste,” explains a senior bureaucratin the home ministry, who is responsible formonitoring UP’s law and order situation. “Itis a well chalked-out strategy to attempt anew social engineering in a politically crucialstate where either the BJP or the SP willremain in power,” he adds.

Dalit activists, however, emphasize thatthe government needs to do less politics andmore of implementation of existing schemesto improve their lives. The 2014-15 budgetallocated `50,548.16 crore for SCs and`32,386.84 crore for STs. “These plans werein existence for the last 30 years. However,these funds have been plagued by variousissues, like non-implementation, diversionand notional allocations. All this needs tochange. And for this, a push for effectiveimplementation through investing in sche-mes for education, land and skill develop-ment is needed,” argues Divakar.

The toilet test for Modi has begun.

India’s population: 1.22billionScheduled Caste population:201.4 millionPopulation of dalit women:34.8 millionPercentage of rural Indianswith no access to toilets: 60Percentage of non-dalithouseholds with toilets:42.3Percentage of dalits households with toilets:23.7 Percentage of dalits who willdirectly benefit from theSwach Bharat schemebetween 2014-19: 77Total allocation for SwachBharat scheme: `4,260croreAllocation for dalits and tribals under this scheme:`938 crore & `426crore respectively

Numbing Numbers

Communal conundrum

IL

The aggressive BJP-RSS stance to woo dalits is causing socialschisms, leading to communal tensions in rural areas. TheDecember Muzaffarnagar riots were a case in point. It started asa local clash between dalits and Muslims over a petty issue. Theparty took up cudgels on behalf of dalits, while the SP-led UPgovernment kept quiet, leading to escalation of communal tensions in the whole of western UP.

The BJP’s electoral success triggered Muzaffarnagar-typeriots elsewhere too. Within 10 weeks of the poll results on May16, 605 communal incidents happened in UP, of which 68involved Muslims and dalits. According to The Indian Express,over 70 percent of these took place around areas where assembly by-elections were to be held. Many of the flare-upswere over minor issues such as the use of loudspeakers inmasjids and temples. And the BJP always took up the case ofdalits, while the SP, BSP and Congress remained non-committal.

It is this appeasement of dalits that is the reason behind theBJP’s attempt to rake-up the “love-jehad” issue. This is with

reference to Muslim boys enticing Hindu girls with the aim ofmarrying and converting them. In most cases, the girl is a dalit.This happened in Gaineridan village in Pilibhit on May 20. Here,a Muslim family allegedly took away by force a girl married to aJatav boy. Local BJP leaders intervened and demanded securityfor the Hindu family, causing tensions.

Political commentator Ajaz Ashraf wrote in scroll.in: “The BJPand its allies have supplemented the traditional method ofHindutva mobilization with new strategies. Months beforeMuzaffarnagar erupted last year, Hindutva activists had beenharping on the alleged menace of ‘love-jehad’, a seemingly devious Muslim ploy to woo and marry Hindu girls after convert-ing them to Islam.”


THE NATION/J&K/ bjp strategy

MISSION34 September 30, 2014

THE Modi government has a very clear strategy onKashmir. This relates to its handling of Pakistan, theHurriyat and Jammu & Kashmir (J&K) itself. Andthose calling the shots are Prime Minister NarendraModi and National Security Advisor (NSA) Ajit Doval.While earlier, the Ministry of External Affairs (MEA)was the moving force behind foreign policy, it is an

open secret that now it is Doval. It was his idea to call heads of SAARCnations for Modi’s swearing-in with a view to creating bonhomie amongneighbors and establishing the government’s peacenik credentials.

CLEAR-CUT STRATEGYDoval is also credited with the new strategy on Pakistan, says a PMO insid-er. As a former spy-master, Doval depends on his decade-long experiencein fighting Pakistan’s proxy war and classified information passed to himby security and intelligence agencies, to decide the government’s actions. Itwas on Doval’s advice that the government called off the scheduled foreignsecretary-level talks with Pakistan, just three months after Pakistan PrimeMinister Nawaz Sharif made an unprecedented gesture in attendingModi’s swearing-in. Though the official reason given for this cancellationwas that Pakistan High Commissioner to India, Abdul Basit, had metHurriyat leaders, according to a PMO insider, this was Doval’s doing.

HANDS-ON STRATEGYJ&K Chief Minister Omar

Abdullah welcomesPrime Minister Narendra

Modi on his arrival atJammu Airport in

early July

the saffron party’s ambition to win 44seats in the forthcoming assembly pollsmay see the first hindu cm in the only muslim state in indiaBy Vishwas Kumar

POSSIBLE

“If the boycott (called by Hurriyat) continues, the people of Kashmir would becontrolled from somewhere in Nagpur (RSSheadquarters) or Jhandewalan (RSS headquarters in Delhi).”

Omar Abdullah, J&K chief ministerUNI


Some people even suggested that Modi tookthe decision at the behest of RSS hardliners,who are opposed to the government’s “softapproach” towards Pakistan.

The carefully thought-out strategyextends to Kashmir too. The latest move tocorner Kashmir’s separatist leaders is keepingin mind the crucial assembly elections inJ&K, scheduled for later this year. It is alsokeeping in mind the latest conflagration inPakistan, where its army chief, GeneralRaheel Sharif, has launched an offensiveagainst Sharif ’s democratically elected gov-ernment to gain control of its foreign affairs.

As news of Pakistan’s domestic crisis start-ed filtering in, Doval reportedly advised Modito seize the opportunity. That’s when foreignsecretary Sujatha Singh was asked to call up

Basit and tell him to cancel the invite toHurriyat leaders. The logic was that thePakistan government could not have agreedto such a “request” when it was under siegefrom the army. Doval’s calculated decision tomake the Hurriyat leaders fall guys andPakistan as the “villain” to India’s efforts torestart the dialogue process, seemed to beworking. Both the Hurriyat and Pakistan arenow targeting Modi’s government.

The government needs this kind of “out-cry” to enthuse party workers in J&K, espe-cially in Hindu-dominated Jammu, where ithas launched a mission to win over 44 seats inthe 87-member assembly and thereby, chiefministership. The BJP’s attempt to install thefirst Hindu chief minister in the only Muslim-dominated state in India has put local politi-cal players, including separatist leaders, in atight spot.

CAUGHT IN A QUANDARYTraditionally, the separatist leaders havealways boycotted J&K elections. They don’tbelieve in the Indian constitution anddemand independence, both from India andPakistan. However, this time, the ground sit-uation is different and the separatists are nowcaught in a bind, as for the first time, the BJPhas emerged as the main contender for power.So, if they announce a poll boycott, it will onlyhelp the BJP gain more votes and if theydon’t, there could be a large voter turnoutwhich will negate their claims that mostKashmiris wants “azadi” (independence).

But the BJP also has to contend with thetwo main political parties in the state—theruling National Conference (NC) and thePeople’s Democratic Party (PDP). The assem-bly seats are spread out across three geo-graphical areas based on different religiousidentities. Muslims dominate Kashmir Valley,which accounts for 46 seats, Hindus arestrong in 37 seats in Jammu region andBuddhists are dominant in four seats in Leh-Ladakh. To reach the half-mark, the BJP willneed 44 seats.

The party’s internal feedback is that it hasa good chance of grabbing all 37 seats inJammu and four seats in Ladakh, which addsup to 41. To get three more seats for the mag-ical number of 44, the BJP has adopted mul-


It was on Doval’s advice that the governmentcalled off the scheduled foreign secretary-level

talks with Pakistan, just three months afterNawaz Sharif attended Modi’s swearing-in.

2008 J&KRESULTS

BJP: 11CPM: 1Independents: 4Congress: 17JKDPN: 1NC: 28Panthers Party: 3PDP: 21PDF: 1

Jammu & Kashmir assembly seats

46

37

4SEATSSEATS

SEATSJAMMU

VALLEYLADAKH


tiple strategies. One is to provoke theHurriyat, whose influence only works in theValley, to announce a poll boycott and proac-tively implement it. It also wants Pakistan-based terrorist groups, all controlled andfunded by the Pakistan army, to issue threatsasking people not to participate in the elec-tion, like in the past. These twin factors willreduce voter turnout in the Valley, which, inthe 2008 election, was 51.66 percent.

WOOING PANDITSIn addition, the BJP has launched a massivedrive to enroll all eligible Kashmiri pandits inthe voter list and make arrangements forthem to cast their votes. They have an optionto participate in J&K elections from theirresettlement camps.

Past experience tells that the poll boycottcall from separatists and terrorists works insix constituencies—Habba Kadal, Sopore,Anantnag, Bijbehara, Amira Kadal and Tral.During the last elections, polling in these con-stituencies was negligible. But if even a smallnumber of pandits vote in these constituen-cies, it could help add to the BJP’s kitty.

Sensing the BJP strategy, J&K Chief

Minister Omar Abdullah appealed to sepa-ratist leaders not to give a poll boycott call. In an election rally in Srinagar on August 24,he said: “They (BJP) are banking on boycottin Habba Kadal, Amira Kadal, Sopore, Tral,Anantnag and Bijbehara constituencies andbelieve these are the seats they can have intheir kitty. Boycott has not helped in the resolution of Kashmir; boycott has not evenhelped the separatist leader (Syed Ali ShahGeelani).” He also explained that the BJP was focusing on six assembly constituen-

The floods havestrengthenedthe BJP’s position, witheven Congressleaders admitting thegovernment’spromptness in relief operations.

TESTING HUMAN GRITArmy personnel carrying out rescue

operations in the flood-hit state

UNI

UNI



cies, which have a sizeable presence ofKashmiri pandits. “If the boycott continues,the people of Kashmir would be controlledfrom somewhere in Nagpur (RSS headquar-ters) or Jhandewalan (RSS headquarters inDelhi),” he warned.

However, Abdullah’s NC has lost clout inthe Valley, as the recent general electionresults revealed. Both the NC and its coalitionpartner, the Congress, didn’t get any seat,while the BJP and the PDP won three seatseach out of a total of six. These three seatsroughly cover 33 assembly constituencies,boosting its “Mission 44” campaign.

On the other hand, the unprecedentedfloods in the state have cemented the BJP’sposition, and even Congress leaders GhulamNabi Azad and Digvijaya Singh begrudginglyadmitted the government’s promptness in res-cue operation, and the relief grant of `1,000crore to the state.

REPEALING ARTICLE 370Winning 44 seats will further the BJP’s aim ofimplementing its long-cherished agenda torepeal Article 370, which gives the state spe-cial status. If the J&K assembly passes a reso-lution to repeal this article and it gets ratifiedin parliament, it can be done away with, pro-vided it is not seen as unconstitutional by theSupreme Court. If this article goes, then, J&Kwill function like any other state and citizenscan acquire property there. Gradually, thedemography of the region will change.

It was during the 2008 assembly polls inJ&K that the BJP’s rise started. It was a sur-prise winner as, from one MLA in the 2002assembly elections, it secured 11 seats, makinga clean sweep in Jammu and Kathua districts.Analysis of the results showed that it benefitedfrom the Shri Amarnath Shrine Board (SASB)controversy in July and August 2008. It start-ed when the state government handed oversome forest lands to SASB for beautificationand construction of more facilities for pil-grims. When the Hurriyat objected to this, thegovernment revoked its earlier decision. TheBJP opposed this and launched a campaign.Since Amarnath is one of the most revered ofHindu shrines, the party’s emotive campaignworked during the assembly election.

Subsequently, the party launched an agita-tion against the “step-motherly” treatmentmeted to the Jammu region at the hands of aminority chief minister who gets elected onthe strength of Kashmir’s voters. This polar-ization politics worked and solidified BJP’sgrip on Jammu region.

It waits to be seen if these strategies willwork during the coming polls.

If the separatists announce apoll boycott, it will only help theBJP gain more votes and if they

don’t, there could be a largevoter turnout which will negate

their claims that mostKashmiris wants independence.

FLAGBEARERS OFKASHMIRI AZADISeparatist leaders

Syed Ali Shah Geelani(top) and Yaseen

Malik (above) at thePakistan High

Commission in New Delhi


IL

PLAYING TO THE GALLERY

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MEDIA HYPEMUCH ADO ABOUT VIRAT AND ANUSHKA

FILMSKATIYABAAZ: INDIA’S SCISSORHANDS

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it was wrong on the part of the supreme court to arrogate to itself the power to appoint judges under the collegium system

IN the constitutional scheme ofthings, there is a clear demarcationbetween various institutions—name-ly, parliament, judiciary and execu-tive. Whenever any organ of thestate, any one of these three, exceeds

its limits, people sense danger. In the 1970s, there was talk of a committed

judiciary. And later, of the supersession ofjudges. An eminent judge, Justice HR Khanna,resigned on a matter of principle and con-science. There was turmoil and the peoplewere concerned because the executive, at thattime, was crossing the limits prescribed for it.

CORRUPT SYSTEMIn the 1993 judgment, which paved the way forthe collegium system, the judiciary hadcrossed limits. Brother judges went on toappoint brother judges. And, you know, whenbrother judges appoint brother judges, nepo-tism creeps in, favoritism comes in, and in acollegium, there can be instances of bargainingtaking place between one judge and another,with the chief justice taking the better share.

Justice JS Verma was on the 1993 bench,which set up the collegium, a novel institution,which is not prescribed in the constitution. Hewas for setting it up. Later on, he regretted thisdecision of the Supreme Court in public. Ithink he appeared before the parliamentarycommittee and also expressed this view. Also,


MY SPACE/hk dua /judicial appointments

WHEN AN INSTITUTION CROSSES THE LIMIT

Anil Shakya


in public statements, and in private conver-sations, he went on saying that a wrong deci-sion was taken by the bench in 1993, of whichhe was a member. His regret was that theSupreme Court approved of a collegium.

Nowhere in the world do judges appointthemselves. Always, it is an executive deci-sion, but there are checks on the misuse ofexecutive power. That aspect, I think, is takencare of by the Judicial AppointmentsCommission, which is being provided for.

But I would say that there has been con-siderable lobbying with the collegium mem-bers by judges from high courts. Those whoare aspiring to be Supreme Court judgesdon’t leave any stone unturned to get inthere. In the high courts, they retire early andsince they want to be in the Supreme Court,they visit the houses of collegium members,trying to bring influences of all kinds. String-pulling is the name of the game in Delhi.That kind of culture, which prevails in thejudiciary, leads to malpractices, and shouldbe corrected.

JUSTICE COMPROMISEDIn the process, the quality of justice hasdeclined in the country. I would like to cite two or three cases. Take the Jessica Lalcase or the Priyadarshini Mattoo one. Therewas miscarriage of justice in both. Only afterpublic concern and media noises, ultimately,

did the highest court intervene to providejustice. Also, I can’t understand how in thetrial courts, and even at the high court level,did a BMW car become a truck, and a manwho killed six people on Lodhi Road in thecapital of India, got away very lightly. This isbecause the right kind of people are not beingappointed in the highest judiciary.

The collegium neither laid down the crite-ria for appointment of judges nor said whatkind of judges you need in high courts or inthe Supreme Court. The Delhi high court hascome out with judgments which spell out cri-teria even for admission to nursery schools.But people do not know what criteria arethere for being appointed as a judge to a highcourt or the Supreme Court.

I am a little worried when a recognizedorgan of the state exceeds its limit and whena recognized organ of the state thinks thatwhatever it says is always right. I get equallyworried about individuals who think they arealways right, worried about the institutionswhen they think they are always right. Takethis aberration of a collegium. It was wrongon the part of the Supreme Court to arrogateto itself the power to appoint judges. That isbeing set right in the constitution, and that iswhy I support this bill.

—The author is a former editor ofHindustan Times and a Rajya Sabha member

NO FAIR PLAYThe collegium system led tomiscarriage of justice in manycases until there was public outcry. (From left to right) ThePriyadarshini Mattoo, Jessica Laland BMW cases are perfectexamples of this

IL

Photos: Rajeev Tyagi

PREETHI Nair (namechanged), a housewife inKozhikode, tried to con-trol her husband’s drink-ing habit in the only wayshe could—she destroyedthe liquor bottles he

brought home. She realized the futility of itafter he started coming home drunk. Preethitried almost everything to sober him up inthe last 15 years, including taking him to de-addiction treatments, but failed. So, she isnaturally skeptical about the Kerala govern-ment’s move to impose prohibition.

As for drinkers, they are not unduly wor-ried about the “partial prohibition” intro-duced by the Congress-led United Demo-cratic Front (UDF) government. The policywill see all 700 bars in the state, which aren’tFive Star, being shut from September 12. Itwill also see 387 retail outlets of Kerala StateBeverages Corporation (Bevco) and KeralaState Consumers Co-operatives Federation(Consumerfed), sole liquor distributors inthe state, being shut down gradually over thenext 10 years, starting from October 2.

This means that Malayalees, who con-sume nearly 35 million cases of Indian MadeForeign Liquor (IMFL) and beer a year, willnow have to queue up before 348 retail out-lets (after 10 percent have shut down) and 23Five Star hotels from October 2 if they do notquit drinking.

SEASONED DRINKERSDrinkers who queued up at liquor outletsalong the road from Kochi, the commercial

DRUNKEN STUPORA sloshed man on aroadside in Kochi, a common sight in God’sOwn Country

SOCIETY/ prohibition / kerala

chief minister oommen chandy’s idea of a phased liquor ban may earnhim brownie points among womenfolk. but will it work in a state which isthe largest consumer of alcohol?By TK Devasia

BOTTOMS


Chandy says the state spends heavily onhealth and other issues triggered by liquorconsumption. He stresses that prohibitionwould benefit the state in the long run.

capital of the state, to Palai, the home ofKerala’s first liquor baron, Joseph MaichelMannarkattu (called Mannarkad Pappan), aday after the government gave its nod forpartial prohibition, said they were in nomood to stop drinking. Drinkers at a Bevcooutlet at Kuravilangad said they were notinordinately worried, as they could get theirquota from outlets that were open.

Their methods to get their daily tipple areingenious. “We can always form a group anddepute one member to procure the quotafrom some other outlet if the one in our areais closed down. We will compensate him bypaying him for his time,” reveals Rajesh, 30,an autorickshaw driver in Kuravilangad. Hestarted drinking from the age of 18 and sayshe cannot think of quitting the bottle. He

needs at least three pegs after a hard day’swork to get sleep.

Thomas Varghese, a software profession-al at Kakkanad, the IT hub in Ernakulam,doesn’t like to stand in a queue in front ofretail outlets. And he needn’t, as he has a bet-ter option brewing at home—online homealcohol distillers. These equipment will givehim better and cheaper liquor. Already,details of websites selling such liquor have

DOWNTIPPLERS’ TROUBLES

Drinkers will have to takeextra pains to procure

liquor now, with outletslike this set to

be phased out


started appearing on Facebook and othersocial networking sites. The price of a distill-er that allows one to brew one’s favorite alco-hol at home starts at `4,000.

LURE OF TODDYBut Vivek Pillai, a former employee of Bevco,says there may be no need for drinkers totake this risk, as toddy shops and beer andwine parlours have been spared from thisnew liquor policy and can quench the thirstof hard drinkers. “When arrack (countryliquor) was banned in 1996, toddy shops soldit. Those who cannot afford IMFL can flockto these toddy shops even now for therequired kick,” says Pillai. “It is not difficult toturn spirit into whiskey, brandy or rum.IMFL manufacturers have been producingall varieties of drinks for Malayalees by mix-ing coloring agents and additives withmolasses,” he says.

Interestingly, the Kerala high court hadseveral times brought to the notice of thegovernment the mismatch between toddyproduction and sale. At one point, the courthad also suggested the closure of toddyshops, numbering over 4,000.

Adoor Gopalakrishnan, noted film direc-tor, says that this misconceived prohibitionwill have a catastrophic outcome, as it willlead to the free flow of spurious liquor.“Arrack ban produced a hooch baron called

Manichan. Total prohibition will produce achain of bigger hooch barons and triggermassive human tragedies,” he says. Prohi-bition, he adds, is not practical in a state likeKerala, where consumption of liquor is thehighest in the country. It is not easy for peo-ple who queue up before bars and Bevco out-lets in the morning to quit drinking.

POLITICAL MOVEMost drinkers share his view and feel that theUDF move will fail, as the decision is astrange concoction of politics and religion.Roy Abraham, a Gulf returnee living in Palai,believes that the new liquor policy has beentriggered by a change in political equationsin the Congress, following the appointmentof VM Sudheeran as party chief and pressuremounted on the government by Muslim andChristian organizations.

The UDF government, which did not takeany major initiative to implement its policyof phased prohibition after the ban on arrack18 years ago, had no intention of taking the

Drinkers who queued up at outlets along theroad from Kochi to Palai, a day after thegovernment’s nod for partial prohibition,said they were in no mood to stop drinking.


IMFL retail outlets: 387Five star bars: 23Toddy outlets : 4,122Beer and wine parlours: 111

Watering holeKerala’s drinking outlets ason September 13, 2014

Follow Gujaratmodel, saysSupreme Court The Supreme Court (SC)on September 11 saidthat more than 700 barsin Kerala cannot be shutdown before September30. It questioned theKerala government’sdecision to allow barsonly in five-star hotelsand said, “If you want toban alcohol, stop it totally,like Gujarat.”

These bars had takenthe government to courtas they would lose theirlicenses if it went aheadwith its plan to imposeprohibition. The SC hassaid that the Kerala highcourt must take a finalcall on this and deliver itsverdict by the end of themonth.


next step when it decided not to renew thelicenses of 418 bars on the eve of the LokSabha elections. The government’s plan wasto renew them after elections, but Sudheeranmade the going tough by taking an adamantstand against reopening these bars. Abrahambelieves that Chief Minister OommenChandy had proposed the recent prohibitionto cut Sudheeran to size. If Chandy had suc-cumbed to his pressure and agreed to perma-nently shut down these bars, the party chiefwould have emerged a hero.

Chandy made a sudden shift in his stand,much to the surprise of the prohibitionists,after he saw support swelling for Sudheeran.The party chief had rejected all compromiseformulas, including one which envisagedrenewal of licenses of all bars with three-starfacilities and granting time to the rest toupgrade their facilities.

Though Chandy has scored a pointagainst his rival by proposing closure of allthe bars and 10 per cent of retail liquor out-lets every year, he is not ready to forgive

Sudheeran, a chief ministerial contender, forputting him in a tight corner. Chandy hasalready taken his grievance to the CongressWorking Committee member AK Antony.

HUGE REVENUE LOSSChandy, apparently, pushed for this drasticmeasure without discussing its implicationor taking stakeholders into confidence. Itresulted in many stakeholders, including sev-eral ministers, coming out against the meas-ure. While finance minister KM Mani is wor-ried about the loss of revenue to the tune of`7,500 crore annually, tourism and IT minis-ters fear it will affect the growth of these twosectors, which are the major revenue earnersin the industrially backward state.

Noted film director Adoor Gopalakrishnansays that this misconceived prohibition willhave a catastrophic outcome, as it will leadto the free flow of spurious liquor.

PATIENT WAITA common sight at aliquor outlet in Kerala



Why was prohibition imposed andrushed through without any consultation?The scourge of alcohol was fast erodingKerala’s society and the state hadattained a rather dubious distinction ofhaving the highest number of alco-holics. It was not a decision taken inhaste. In fact, society at large has beenin favor of banning liquor for quitesome time. Recently, the demandreached an all-time high and the politi-cal fraternity in Kerala also felt that thetime had come to take a bold move touproot this evil. The matter was finallytaken up by my government and thepolitical will and consensus thatemerged, resulted in a decision forphased ban of alcohol.

Prohibition has failed in variousstates. Don’t you think people willnow go to bootleggers or take spurious liquor, leading to hoochtragedies?It failed in many states because most ofthem implemented it unscientifically.We are doing it in a phased mannerand along with that, are educating peo-ple on the need for such a move. Weare now closing down all bars, exceptthose in Five Star hotels. Kerala StateBeverages Corporation (Bevco) outletswill continue, with 10 percent of themwinding up every year. It will take 10years to reach a liquor-free Kerala. Thisis our preparatory period and we willcontinue to focus on educating people.We will also be vigilant against spuri-

ous liquor. The police and the excisepersonnel have been directed to con-front this challenge in the days tocome. We are also strengthening ourcampaigns against the usage of intoxicants and the present drive,“Clean Campus, Safe Campus”, of thehome department will be intensified.

The liquor industry contributes over`8,000 crore to the state exchequer.How will you make up for it?I agree that the revenue loss is boundto create a dent in our economy. But,how can one overlook the burgeoningtrend of alcohol consumption inKerala, which has led to increase incrime rates, disintegration of families,road accidents, health problems anddivorces? In fact, the social cost ismuch higher than the economic cost.

Won’t this hit tourism, one of themain sectors in Kerala?We still have the option of beer andwine parlors, so it is not fair to say thatthe tourism sector will be affectedbadly. It is also a false notion thatliquor of strong grade is an inevitablecomponent of Kerala’s tourism sector.A good majority of foreign tourists donot prefer IMFL.

This issue has also taken on religious connotations with someHindu outfits seeking a ban on wineserved in churches. Your comments.It has nothing to do with our newabkari (liquor) policy. Wine is used in

churches as part of the religious practice of Christians.

What is the rehabilitation packagebeing worked out for those renderedjobless due to the closure of bars? We have introduced two new schemes,viz., Punarjani 2030 and KeralaAlcohol Education Research,Rehabilitation and CompensationFund (KAERCF) for rehabilitatingemployees of bars that will be closeddown (other than those attached tohotels). The fund for this will comefrom the 5 percent cess levied from thesale of liquor through Bevco outlets.Apart from this, the excise departmentwill also have its own assistance pro-gram to rehabilitate the staff of BEVCPoutlets, who will lose their jobs with theclosure of some outlets on a yearlybasis. The fund for KAERCF will begenerated from voluntary donation of aday’s salary by Keralites residing insideand outside the state. KAERCF will bemainly utilized for various awarenesscampaigns against the evils of alcoholconsumption.

Critics say the move is a political oneto checkmate chief ministerial rival,KPCC president VM Sudheeran?The new abkari policy has been arrivedat after having sufficient discussionsamong KPCC, coalition partners in theUDF and after taking into account theincreasing demand for alcohol banfrom society itself. Everyone has wholeheartedly welcomed the decision.

‘Social costs of alcoholismhigher than economic costs’Kerala has the dubious distinction of having the highest percapita consumption of liquor—8.3 liters—as compared tothe national one of four liters. It is, therefore, a moot question how prohibition will be enforced. But Chief MinisterOommen Chandy is optimistic that the ban will be a success. Excerpts from an interview with Shobha John


Excise minister K Babu lamented the lackof machinery to ensure effective implementa-tion of this decision. He said there would notbe enough excise staff to deal with the flow ofhooch and spread of drugs as a result of thephased prohibition. He is already grapplingwith a sharp rise in narcotic and abkari(activities related to manufacture and sale ofalcoholic drinks) cases.

According to Babu, since 2011, 1,769 per-sons were arrested in connection with 1,618narcotic cases. About 2,690 kilograms ofganja, 6.12 kilograms of heroin, 7.41 kilo-grams of hashish, 5,448 narcotic ampules, 65grams of charas, 2.34 kilograms of brownsugar and 1.355 grams of opium were seizedduring the period. Babu says prohibitionwould confound the situation as drinkersmay switch to ganja, heroine and other dan-gerous substances.

Home Minister Ramesh Chennithala hasalready warned of an attempt by an interna-tional racket to lure the young generation todrugs. He feels that prohibition will help thegang which is now active around campuses tospread its tentacles. “It will not be easy forthe excise department to check the menace asdrug abuse is not easily detectable,” he added.

SPIKE IN CRIMESThe excise department now anticipates asharp rise in cases of illicit brewing andsmuggling of spirits and liquor from otherstates. Out of the 14 districts in Kerala, 10border Karnataka and Tamil Nadu, wherethere is no restriction on liquor sale.Moreover, Mahe, part of the Union territoryof Puducherry, where liquor is 40 percentcheaper than Kerala, is within the state’s ter-ritory, surrounded as it is by the northern dis-tricts of Kozhikode and Kannur.

The numbers say it all. Cases reportedunder the Abkari Act have witnessed a quan-tum jump in recent years. They relate to illic-it brewing and smuggling and went up fromjust 1,975 in 2008 to a stupendous 48,828 in2013. Till May this year, 20,120 such caseswere registered.

To curb these rising crimes, Babu willneed the help of the police, but the homeminister has pleaded his helplessness, sayinghis men are already overburdened. Plus, the

creation of new posts may not be possibleuntil the state overcomes the financial crisiscaused by prohibition.

Finding alternate sources of funding tomeet the deficit is not easy in a state whereindustry and agriculture are almost stagnant.Liquor has contributed nearly 25 percent ofthe state’s revenue receipts for the past sever-al decades.

Chandy is, however, not worried as hesays the state was spending more on healthand other issues triggered by liquor con-sumption. He stresses that prohibition wouldbenefit the state in the long run. He has alsodismissed concerns about the success of pro-hibition. “I am aware prohibition has failedwherever it was implemented. Ours is nottotal prohibition that others have tried, but amarch towards prohibition through promo-tion of abstinence. We will carry out a sus-tained campaign during the next 10 yearsagainst alcohol. I am sure this will helpdrinkers realize the hazards of drinking andmake them quit the habit,” he adds. WhileChandy may describe his government’s liquorpolicy as a revolution, others feel it will bringin social anarchy. It waits to be seen how dif-ferent this prohibition will be.

Manipur: The state was declared a drystate on April 1, 1991. The state loses`300 crore every year due to the ban.Liquor is still sold illegally.

Mizoram: A bill on liquor prohibition andcontrol was cleared by the assembly inJuly, which has replaced an old act. `300crore is lost in revenue every year. Liquortravels into the state through smuggling.

Nagaland: Prohibition since 1989.Estimated loss `50-60 crore. Liquor canbe arranged from Assam and Myanmar.

Gujarat: Prohibition imposed right sinceits formation in 1960. The state loses`5,000 crore per year. Liquor comes in illegally from Rajasthan and Gujarat and iscarried into the state by bootleggers.Special permission can be had on medicalgrounds for consuming limited quantity.

Officially banned

IL


activists feelthat legalizing

prostitution willlower crimes

against women.but no one

wants to bellthe cat

By Divya A

RAW DEALSex workers in India had more rights

before Independence than what they have now

SOCIETY/ sex workers

THE year was 1993. Freedom fighter KharaitiRam Bhola had won another battle after wagingit for seven long years. The Supreme Court (SC)had finally ruled in his favor, giving children ofsex workers the right to go to school. The court

had issued a notification to all schools to allow either thefather’s or the mother’s name in the admission form, asopposed to the earlier practice of having only the father’s.

The ruling came into effect in Delhi but was subsequentlyapplied countrywide. Not only that, its ambit was widened in1996 to allow the mother’s name to be incorporated in all gov-ernment and non-government forms in the country.

That was a watershed moment in the history of social jus-tice in India. Though children of sex workers were mostly

GREEN LIGHT FORAmarjeet Singh


face social stigma and ostracization but arealso bereft of the benefits of governmentalschemes and other entitlements,” says Bhola.“A huge amount of the money these womenearn, goes to touts, brothel owners andpolicemen. If the profession is regularized,sex workers can use their earnings to educateand bring up their children,” he states.

In India, unlike other professions, whichare protected by labor laws, sex workersaren’t. According to researches carried outglobally, it is estimated that as many as 10million children are engaged in prostitution,with many of them being the children of

brought up by mothers, schools didn’t recog-nize just their name during enrolment andinsisted on the father’s name too. Due to this,these children were refused the fundamentalright to education. In the wake of the judg-ment, as many as four crore “fatherless” chil-dren got admission in schools, out of which33 lakh were offsprings of sex workers,according to surveys.

FULFILLING CRUSADEBhola, now 86, lives in Delhi’s Patel Nagarand runs an NGO for destitute women, calledBharatiya Patita Udhar Sabha (BPUS), whichruns five schools in the red light areas ofMumbai, Delhi, Varanasi, Ahmedabad andSurat. It has 600 children on its rolls. Eventhough BPUS was founded in 1984, the turn-ing point of Bhola’s crusade came with the1993 SC directive. “I consider this a land-mark decision towards establishing therights of sex workers in India. Without afather’s name, sex workers’ children were nottaken into schools. That’s 24 lakh sex workersand their 54 lakh children,” he says, sitting inhis office on Najafgarh Road in West Delhi.

Bhola has now taken his fight to the nextlevel—requesting the government to legalizeprostitution. He says: “This is the world’s old-

est profession and no one has been able tostop it.” During the East India Company’srule in India, the British set up “comfortzones” for their troops. Women were broughtfrom Europe and Japan to service British sol-diers and local Indian men. Bhola says thatbefore Independence, prostitution was a rec-ognized profession in India; sex workerswere given licenses to practice their trade.

SAD PLIGHTBut now, the biggest sufferers are children ofthese sex workers. “Since the profession oftheir mothers is not recognized, they not only

Once prostitution is legalised, sex workers canuse their earnings to educate and bring uptheir children, says Kharaiti Ram Bhola whoruns an NGO for destitute women.

RED LIGHT AREAS

RECENTLY, a national award-winning actress was arrestedalong with her pimp for practicing prostitution and hasbeen sent to a rescue home run by the women and childwelfare department.

However, the Immoral Traffic (Prevention) Act, 1956defines prostitution as the sexual exploitation or abuse ofpersons for commercial purposes or for consideration inmoney or in any other kind, and the expression “prostitute”shall be construed accordingly.

Therefore, it is clear that the practice of selling one’sown sexual service voluntarily or the sexual activity inexchange for a fee, between two consenting adults in pri-vate is not a crime.

What is illegal is pimping, keeping and operating abrothel or a third party benefitting from the prostitutionactivity. Therefore, the charges against the actress arehighly debatable.

What the law says...


fears to enter the red-light areas due to thefear of police and touts....The time is ripe forthe central government to legalize the profes-sion in India, as has been done by 164 coun-tries in the world....Till the time it is done, thegovernment must issue licenses to sex workers to carry on their profession withoutany fear.”

STOPPING HEINOUS CRIMESExamples elsewhere have proved that if pros-titution is legalized, people who wish to satis-fy their sexual urges will go to prostitutesrather than commit heinous crimes, such asrapes. The late Khushwant Singh hadremarked once: “… the necessary step (toprevent rape) is to legalize prostitution—car-ried out in brothels or by call-girls—providedthe sex workers are adults and have not beenforced into the trade. The more you try to putdown prostitution, the higher will be theincidence of crime against innocent women.You may find the idea repulsive but ponderover it and you will realize there is substancein the argument.”

So what does the law say about sex work-ers? The Immoral Traffic (Suppression) Act(SITA), which came into force in 1956, saysthat prostitutes can practice their trade pri-vately but cannot solicit customers in public.Clients can be punished for sexual activity inproximity to a public place, while organizedprostitution (brothels, prostitution rings,pimping) is illegal. In practice, SITA is notcommonly used. The Indian Penal Code,which predates SITA, is often used to chargesex workers with vague crimes such as “pub-lic indecency” or being a “public nuisance”. In1986, SITA was amended to become TheImmoral Traffic (Prevention) Act or PITA.This was intended as a means of limiting andeventually, abolishing prostitution in Indiaby gradually criminalizing various aspects.

It’s obvious that this contentious issueneeds to be handled maturely. But are we upto it?

—The author is Sanskriti-Prabha DuttFellow for the year 2013-14. She works with

The Indian Express in New Delhi

sex workers. They are forced to live in ghettosalong with their mothers and have limitedoptions as they grow up. By legalizing prosti-tution, these minors can be weaned away.

Bhola, who is a member of the CentralAdvisory Committee, Ministry of Womanand Child Development, maintains thatlegalizing prostitution doesn’t imply, bydefault, that we are encouraging it. In theaftermath of the December 2012 Nirbhayagang rape incident in Delhi, he even wrote toJustice JS Verma, who was heading the com-mittee constituted to review anti-rape laws,and asked for prostitution to be legalized.

His letter said: “Due to the non-legaliza-tion of sex trade in India, anyone wanting sex

IL

Oldest profession�The number of female sex workers in India: Over 30 lakh�Percentage of prostitutes who enter the trade before 18 years: 35.47�Number of children involved in prostitution: 12 lakh �States with high concentration of prostitutes: Delhi, UttarPradesh, Bihar, Rajasthan, Gujarat, West Bengal, Assam,Madhya Pradesh, Karnataka, Andhra Pradesh, Orissa, Goa,Tamil Nadu�Countries where prostitution, pimping and brothel-owningare legal: Netherlands, New Zealand, Venezuela, Indonesia,Greece, Germany, Ecuador, Canada, Nicaragua, and parts of the US

SOCIETY/ sex workers

Saibal Das


RIGHTS/ consumer fora

that sums up the plight of consumers in courts. but withthe likely amendment of the consumer protection act,succor could be in sightBy Anita Katyal

IT began with a bang of a promise, butended with a whimper. When theConsumer Protection Act was enact-ed in 1986, it was hailed as a land-mark legislation. Consumers had rea-son to celebrate, as the law had finally

recognized their rights by providing them agrievance redressal mechanism while holdingthe seller accountable. Earlier, consumers

could do precious little when saddled withdefective goods or unsatisfactory services.Finally, the consumer was the king.

But 28 years down the line, there is a seri-ous rethink about the efficacy of the law.Various studies conducted by consumer organ-izations have revealed that the act has failed toprovide speedy and simple justice. Consumershave kept away from the redressal forums

THE LONG &WINDING ROAD

Anil Shakya


stating that 50 percent of members selectedfor these fora should have a judicial back-ground be deleted. This will allow the entry ofexperts and eminent people in place of thosefrom the legal fraternity.

LEGALLY UNTENABLE?These two provisions have predictably put theproverbial cat among the pigeons and pittedlawyers against consumer organizations. Itcould even spiral into a prolonged legal battle.

Lawyers have decried the move on theirban, stating this is not legally tenable and willplace the consumer at a disadvantage, as hewill be deprived of the much-needed legalassistance. Consumer activists, on the otherhand, maintain their studies have shown thatit is possible to settle many cases quickly andthat the periodic adjournments sought bylawyers lead to unnecessary delays.

“The provision keeping out lawyers needsto be treated with the contempt it deserves.Our experience shows that lawyers arerequired to settle consumer disputes, as thesedo involve legal issues. This will be challengedin court and thrown out,” says Lalit Bhasin, aDelhi-based senior lawyer.

Endorsing Bhasin’s view, upcoming lawyerMohit Abraham feels it is an unfair clausebecause it denies legal assistance to consumerswho may not want to argue their own case.“Having a counsel of one’s choice is a funda-mental right of a person. It’s a different matterif a litigant wants to argue his own case, buthow can an act lay down…no lawyers?” asksAbraham. He agrees with Bhasin that such aprovision will not stand judicial scrutiny.

LACUNAE IN COURTSThe proposed provision, he says, is based onthe fallacious assumption that lawyers aloneare responsible for the delay in adjudicatingcases. “What this implies is that if you removelawyers from the scene, everything will workbeautifully,” he says, adding that the problemis far more deep-rooted.

The infrastructure at the district and stateconsumer disputes fora should be improvedand they should be provided with more man-power if the cases are to be disposed off at afaster pace. Abraham says if lawyers are delay-ing cases by seeking periodic adjournments,


Consumers havekept away from

the redressalforums because

of long delaysand knotty

procedures. Thecompensation is

not also worththe time

and effort.

RIGHTS/consumer fora

because of long delays in deciding cases andknotty procedures adopted by them. Even thecompensation awarded is not worth the timeand effort.

ON GOVERNMENT’S AGENDAProdded by consumer organizations, theCongress-led UPA government had amendedthe Consumer Protection Act, but unfortu-nately, the bill could not be passed during itsregime. The new minister for consumer affairsin the BJP-led NDA government, Ram VilasPaswan, has put this law on his priority listand initiated fresh consultations on it so thatthe bill can be passed in the winter session of parliament.

“There is no doubt that the 1986 act hasbecome dated…there have been profoundchanges since then....new delivery mecha-nisms are now in place, while consumerexpectations have also changed. So, we felt theneed to modernize the law to bring it abreastwith current conditions,” says G Gurucharan,additional secretary, Department of Con-sumer Affairs.

Gurucharan maintains that the originalobjectives of the law had been defeatedbecause of poor practices and the manner inwhich redressal fora were functioning. “Theyhave become court-like with their excessiveemphasis on judicial processes,” he says.

However, in the process of providing “sim-ple, affordable and speedy” justice to con-sumers, the state could end up inviting thewrath of the legal fraternity. There are two keyamendments in the proposed bill, and thesehave raised the hackles of lawyers and judges.

A new provision has fixed the monetarylimit of goods or services up to which advo-cates shall not be allowed in consumer dis-putes. For instance, neither party can engage a lawyer in the District Consumer DisputesRedressal Forum if the value of the goods and the compensation claimed is less than `5 lakh. The monetary limit is fixed at `50 lakh for the State Consumer DisputesRedressal Commission and `1.5 crore for theNational Consumer Disputes RedressalCommission.

The second controversial provision per-tains to the composition of these redressalfora. It is proposed that the present clause


members of consumer disputes fora should beempowered to penalize them instead of doingaway with them.

The overwhelming view in the legal frater-nity is that the problem does not lie withlawyers alone, but also with the quality of peo-ple selected to serve as members on consumerredressal fora. Most do not show up regularlyto hear cases, while virtually all consumercourts do not function for more than half-a-day. As a result, cases keep piling up, leadingto an average disposal time of three years.

Lawyers also disagree with the deletion ofthe clause stating that 50 percent members onsuch fora should have a judicial background.Both Bhasin and Abraham maintain that alegal background is critical, as consumer dis-putes require interpretation of laws. “Theissue here is not whether people have a judicialbackground… the important thing is to get theright kind of members,” Abraham says, addingthat if the law is not interpreted correctly, itcould be challenged which, in turn, wouldresult in further delays.

Needless to say, consumer activists are noton the same page as lawyers. George Cheriyan,director of Jaipur-based Consumer Unity &Trust Society, who served on the three-mem-ber committee that drew up the amendmentsto the Consumer Protection Act, says theirstudies have shown that the intervention oflawyers and frequent adjournments sought bythem led to long delays in settling disputes.

Cheriyan points out that the entry oflawyers often puts a consumer at a disadvan-tage, especially when he is battling a powerfulcorporate house as it has the funds to hire abattery of legal experts. He says the manner inwhich consumer dispute fora have been func-tioning has defeated the whole purpose of set-ting them up.

SPEEDY RELIEFThese fora were not meant to function likeregular courts but were envisaged as an alter-native system to provide speedy relief to har-ried consumers. “That was the reason theywere not referred to as courts. But over theyears, these fora have been converted into reg-ular courts,” bemoans Cheriyan.

Despite their differences, lawyers and con-sumer activists agree with the proposal to

introduce a chapter to the act providing for theconstitution of mediation cells. These cells atthe district, state and national levels are meantto encourage people to opt for settlementthrough mediation and will reduce the waitingperiod for the disposal of cases.

Bhasin says mediators are already beingused, but the act has now made a provision toinstitutionalize the system. Abraham, howev-er, says it should not be made compulsory andshould only be explored as an option if bothparties agree with it.

Eager to get the bill passed at the earliest,Gurucharan says outstanding issues would besorted out through further consultations withthe concerned stakeholders. While there maybe differences on specific provisions, he says,the proposed bill has amendments which willbenefit consumers.

For instance, Gurucharan says, the billenvisages the constitution of a ConsumerProtection Authority on the lines of US TradeCommission to deal with unfair trade prac-tices and class actions.

In addition, a special provision has beenincluded for imposition of penalties in casesof product liability and misleading advertise-ments. In an effort to protect consumers, it hasbeen proposed that only one appeal will beallowed against the order of a district, state ornational fora. “We find that cases drag on foryears because those unhappy with an orderkeep appealing to a higher authority. We,therefore, decided to limit the appeal to one,”Gurucharan says. It is hoped this will providespeedy justice to litigants. IL

SHOWING’EM THE DOORThe new consumerprotection rules,once passed by parliament, aims tolessen the involvement oflawyers at variousconsumer disputesredressal forums

the media needs to ask tough questions about this act if a solutionhas to be found to the future of irom sharmila By Kishalay Bhattacharjee


WHAT’S THEREAL PICTURE?

RIGHTS / afspa

protest? There have been cases when peopleon fast were force-fed but they were neverarrested and thrown into police vehicles.Second, why don’t respective state govern-ments withdraw the “Disturbed Areas Act” say,for example, from Tripura, Mizoram, Megha-laya or most of Assam where insurgency hasbeen “countered”? What are the benefits ofhaving the “Disturbed Areas” tag, which allowsAFSPA to provide protection to rogues?

AFSPA is about impunity and Sharmila’sprotest is against it. The security forces killwith impunity and get away with murder.

It took one day for the army to take actionagainst a Brigadier charged with sodomyin his unit in Jammu and Kashmir on

August 23, 2014. But 14 years have passedsince soldiers shot dead 10 people waiting at abus shed in Malom, Manipur. Why hasn’t any-body been punished or held accountable?

It is not so much the act but the pattern ofgetting away with murder under the act thattriggers protests. Soldiers have got away withallegations of rape, citing AFSPA, and thepolice, not covered under AFSPA, has used itas a protective gear to carry out stagedencounters.

If various arms of the government are infavor of amending the act, how has the armyprevailed over them?

Till all these questions are answered andSharmila called for talks instead of beingtreated like a criminal, the stalemate overAFSPA will continue.

IT may have taken a decade, but IromSharmila is now a household name.The human rights crusader fromManipur, who was on hunger strikefor 14 years protesting against alleged

army atrocities, was released from hospitaldetention by a sessions court in Manipur onAugust 19. However, she was re-arrested twodays later as the government charged her withattempted suicide.

Sharmila, who has been protesting againstthe Armed Forces (Special Powers) Act 1958,(AFSPA) went on hunger strike in 2000 andwas force-fed by doctors through a tube goinginto her nose. While the media paid tokenattention to how she was locked up once againand every discussion on her as well as AFSPAleads to army bashing, one must know whatthe act is all about, how it has been misused.

An emergency ordinance, AFSPA wasenacted in 1958 and has been extended over 55years to help the army operate in “disturbedareas”. The act is draconian in nature andallows the army and paramilitary forces to killanybody just on suspicion. There is an over-whelming majority of people who want this togo. The civilian government and its func-tionaries want it to be amended and mademore “humane”. But the army says no.

Government-appointed commissions haverejected its validity, with the National HumanRights Commission saying it has been misusedby the army. But does AFSPA serve the pur-pose it was meant to? It is no longer just aboutan enabling act for the army to operate ininsurgency theaters. It has morphed into a toolfor indulging in narcotics and gun-running bythe army and police forces.

These facts have not been played up.Retired generals defend AFSPA vehementlyand irrationally. Others attack the army.Family members of victims are paraded.Human rights activists raise the pitch, whilepoliticians manage to escape the heat. Themilitants don’t even figure in the discussion.And Sharmila is just a silent picture in thebackground with a plastic tube attached to hernose and a dogged look in her eyes.

The media needs to ask some pressingquestions on the issue. One, why is the govern-ment so scared of following court orders to letSharmila continue with the non-violent

RELENTLESSFIGHT(Facing page) IromSharmila appearingin Patiala court inMay 2014; (above)speaking to themedia immediatelyafter her release onAugust 20


IL

UNI

ENVIRONMENT/ gir lions

A ROARINGRUMPUS


though the sc hasordered the gradualtranslocation of thebig cats from gir forestin gujarat to kunopalpur in madhyapradesh, the wait continuesBy Rakesh Dixit

girasiaticlions.org

The lion may be the king of the jungle, but thefuture of these animals in Gir forest are in some-one else’s hands. An ambitious `79-crore plan torelocate the first batch of some 400 lions fromGujarat to Kuno Palpur in Madhya Pradesh is indoldrums, as it awaits a nod from the NationalBoard of Wildlife headed by Prime Minister

Narendra Modi. The relocation follows a Supreme Court (SC) orderon April 15 last year.

Despite the deadline for implementation having lapsed almost ayear ago, MP is not pushing for it, though it is eager to fund theentire plan without waiting for the center’s allocation. A senior MPminister said the central government was far from being cooperative,but MP didn’t want to press the point due to political considerations.MP chief minister Shivraj Singh Chouhan is seen as a staunchAdvani camp follower and does not want to be seen sparring witheither Gujarat or the center, both BJP-ruled.

LONG WAITThe forest department of MP has already sent two reminders to theMinistry of Environment and Forests (MoEF) this year to start therelocation process, but nothing has moved. MP’s chief wildlife war-den Narendra Kumar says: “I have written to the ministry’s expertcommittee to initiate operations for shifting the lions at the earliest.We are ready from our side.” Incidentally, Kuno Palpur was chosen asan alternate home for Asiatic lions during a feasibility study by theWildlife Institute of India (WII).

State forest minister Gauri Shankar Shejwar says: “ChiefMinister Shivraj Singh Chouhan has already earmarked `30 crore tomake Palpur-Kuno an appropriate home for lions.” Although herefuses to comment on the reasons for delay, he adds that on thedirection of the monitoring committee constituted by the SC, MPhas rehabilitated two villages that would get displaced when thelions come to a national park in Kuno Palpur.

The committee, headed by wildlife scientists Ravi Chellam andYV Jhala, had chalked out how these lions would be shifted. It hadrecommended the shifting of a single pride of five to ten Asiatic lionswith 60-70 percent female population in the first set over the nexttwo years. Every three to five years, two-three lions—mostly male—should be translocated from Gir to Kuno to maintain the inter-link-age between lion populations in the two sanctuaries, it had suggest-ed. This would continue for 25 years.

Chellam, a well-known conservationist and former director of theWildlife Conservation Society of India, says: “Kuno was chosenbecause of its size—3,000 square kilometers—and diverse prey base.Lions need lots of space, plenty of prey and protection from people.”Wildlife studies have shown that the prey count in Kuno was higherthan in Gir. MP has already spent `14.5 crore for relocation of 1,543families from 24 revenue villages so that an alternate habitat couldbe made for Gujarat’s Asiatic lions.


“Gujarat’s lions come from a verynarrow genetic base... and thatmakes them very vulnerable. Incase of an epidemic, they couldeven be wiped out.”

—National Board of Wildlife member Prerna Singh Bindra

IL

ture that the Gujarat government vehementlycited in the SC to forestall the translocation ofits lions.

The Gujarat government’s eight-year-longlegal battle was based on two arguments. Onewas that man-animal affinity in and aroundGir had ensured the growth of Asiatic lionsfrom near extinction a century ago to a teem-ing population of 400. Two, the gun cultureprevalent around the proposed home in MPposes grave danger to their survival. The wip-ing out of tigers from Panna National Parknear Kuno Palpur was repeatedly cited incourt. But the MP government reminded thecourt that tigers had been successfully reintro-duced in Panna. If tigers can be translocatedsuccessfully, why cannot lions, it argued.

WHOSE PROPERTY?While setting a six-month deadline to start thetranslocation, a bench of Justices KS Radha-krishnan and CK Prasad ruled: “No state canclaim the right over an animal merely becausethe animal is housed in a particular state. Itdoes not become the property of that state, itbelongs to the country.” Subsequently, a des-perate Gujarat government filed a curativepetition in court for review of the order, butthat too was rejected on August 16 this year bya bench headed by Chief Justice RM Lodha.

Welcoming the ruling, wildlife expertspointed out that it was vital to safeguard thelong-term future of these lions. “Gujarat’s lionscome from a very narrow genetic base of about25 animals at the turn of the last century, andthat makes them very vulnerable,” saysNational Board of Wildlife member PrernaSingh Bindra. “In case of an epidemic, theycould even be wiped out, and hence, it’s impor-tant that they have a second home.”

MK Ranjitsinh, Wildlife Trust of Indiachairman, also welcomes the court’s interven-tion. “I had helped set up Kuno sanctuarywhen I was MP’s forest secretary, so it is adream fulfilled that lions will be introducedthere,” he said.

Now, the ball is in the court of Modi, who isex-officio chairman of the National board onwildlife. As Gujarat CM, Modi had sparredwith the then environment minister JairamRamesh over relocation of lions from Gir.

Meanwhile, MP waits for the first roar ofthe Asiatic lion.

“The translocation is about strengthening con-servation prospects. At the moment, all oureggs are in one basket and that is a huge risk,”says Chellam.

During the first deliberations of the SCcommittee on July 29, 2013, the panel hadbrushed aside Gujarat’s objections to theprocess. MP forest department sources clai-med that the committee was satisfied with theprogress for translocation in Kuno Palpur.

ROYAL SIMILARITIESBy a strange quirk of royal history, Gir andKuno Palpur have something in common. Bythe end of the 19th century, lions had all butvanished in India. However, only the nawab ofJunagarh painstakingly managed to keep adozen of them alive in Gir forest under hisstate. Around this time—1904 to be precise—the then Maharaja of Gwalior had introducedsome African lions in Kuno Palpur, presum-ably on the advice of Viceroy Lord Curzon.Unfortunately, while the nawab’s conservationinitiatives triumphed, the maharaja’s experi-ment failed miserably, as his lions raided live-stock and some even became man-eaters andhad to be shot dead. Wildlife experts attrib-uted the decimation of the African lions to thenotorious gun culture of the once dacoity-infested Chambal-Gwalior region, of whichKuno Palpur is a part. And it is this gun cul-


ENVIRONMENT/ gir lions

Why thelong marchTHE SC’s verdict to shiftthe lions was primarilyguided by wildlife experts’concern that a singlepopulation of Asiatic lionsin Gir faces the threat ofepidemics, natural disasters and otheranthropogenic factors.This was precisely thegist of a study initiated bythe Wildlife Institute ofIndia (WII) in 1986.

The study found thatthe lions largely preyedupon wild herbivoressuch as sambar and chital and the size of theirhome range was 70square kilometers forfemales and 140 squarekilometres for males. Itfound that Gir WildlifeSanctuary was highlyoverpopulated with lions.There were numerousdeaths because of ever-increasing competition betweenhumans and animals.Based on this study,MoEF conceived the project to safeguardthese lions.

WII researchers confirmed that the Palpur-Kuno WildlifeSanctuary was the mostpromising location forAsiatic lions and in 2007,certified it ready toreceive its first batch of lions.

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Reel Vakilscome, walk down memory lane withthese court scenes, complete withdrama, histrionics and suspense By Jui Mukherjee O

RDER, order! Welcome to thecourtroom of Bollywood, wheredrama and mystery are inter-spersed with humor. A placewhere the unthinkable can happenand last minute plot twists bringthe story to a stunning climax.

Constantly on the lookout for fresh stories to translate onto celluloid, Hindi films have always found inspiration ina court and its tear-jerking, rage-inducing and eyebrow-raising human interest stories.

Long before Boston Legal or Suits glamorized theworld of lawyers, Bollywood had already done that. Rightfrom black and white films like Awara (1951) and Kanoon(1960), Hindi cinema has, time and again, made its pro-tagonists don the black robe. While it is heartening to seecinema acknowledge the important role played by law-yers, sometimes these legal eagles would so adroitly pulloff extreme feats that the robe might as well have beenreplaced by the Batman’s cape.

Their histrionics would include long-winding mono-logues that would leave the whole crowd, including thejudge, in a reflective mode. Their dramatic argumentscould bring about a sudden change of heart, and werecomplete with arm flailing, sharp dialogues, emotionalscenes and such well-crafted questions that the culpritwould be trapped, willy-nilly. These vakils of Bollywoodwould put even the best interrogators of CIA to shame.

These filmy adalats provided not just boundless enter-tainment, but were educative. It is because of these scenesthat even school kids learnt phrases like “mere qabil dost”(my learned friend), “ba-izzat riha” (acquittal), “tamamsabooton ko madde-nazar rakhte hue” (Keeping all theevidence in view) and “chashmadeed gawah” (eyewit-ness), even before they knew how to multiply. Not to for-get other popular phrases like “Mi Lord”, “Your honour”,“The court is adjourned” and “Objection!”

Bollywood offers a plethora of courtroom scenes andIndia Legal has picked up some of the most memorable

SPECIAL STORY/ bollywood/ legal scenes


(Sinha) are two best friends who decide toenter conflicting professions, where onecatches criminals and the other, defendsthem in court. Differences arise when theyboth fall for the same woman. What followsis intense drama not only in the courtroombut also spilling over outside the court. Bothlead actors deliver power-packed perform-ances making this film a must watch.

ANDHA KANOON (1983)When it comes to unbelievable courtroomoccurrences, this one could very well top thelist. Directed by T Rama Rao and starringRajnikanth, Hema Malini, Amrish Puri andAmitabh Bachchan, the film tracks the storyof two siblings (Hema and Rajnikanth), whoattempt to seek revenge on three men formurdering their family. The scene that takesthe cake is one where Khan (Bachchan) chas-es Gupta (Puri) around the courtroom andmurders him in full view of the public andthe judge. He then goes on to give a lengthymonologue justifying his actions. One has towatch it to believe such a scene was con-ceived, executed and also accepted!

MERI JUNG (1985)Anil Kapoor and Amrish Puri match eachother in a court in this Subhash Ghai film.The courtroom scenes in this movie are aclassic example of why Bollywood lawyersseem capable of moonlighting as caped vigi-lantes. In one scene, Kapoor’s character ArunVerma goes the extra mile to prove his

ones. While some made viewers applaud,others made them squint in disbelief.

AWARA (1951)Directed and produced by Raj Kapoor, thisfilm was much ahead of its time, portrayingNargis in the role of a lawyer, Rita, whodefends her childhood friend and lover in thecourt of law in a murder case. Rita dons theblack robe with pride in this flick, matchingevery step of her male counterpart, settingthe tone for several Hindi films to come.

WAQT (1965)Directed by Yash Chopra, with an ensemblecast of Raaj Kumar, Sunil Dutt, ShashiKapoor, Sadhana, Sharmila Tagore andBalraj Sahni, this classic explores a trickymurder trial. Although very effective in itstime, today, the scene seems implausible,bordering on mockery with its overdramaticdialogues and actions. Sunil Dutt plays thedefense advocate and acts his heart out, com-plete with long emotional gazes and meltingpuppy eyes in a bid to engage the conscienceof witnesses. During one cross-questioning,he engages in an entire spectrum of emo-tions. From screaming at a witness, he movesclose and almost whispers to him, urging himto place his hand on the Bhagwad Gita andreverse his earlier statement. Further, inorder to prove a point about footprints at thecrime scene, he actually drags a sack drip-ping with red liquid into the courtroom andasks the prosecutor to enact it himself.

INSAAF KA TARAZU (1980)This BR Chopra film too has a woman in therole of a lawyer. Simi Garewal plays Simi, alawyer fighting for justice when her client,beauty queen Bharti Saxena’s (Zeenat Aman)rape case against the antagonist is challengedin court. The courtroom scenes in this filmtoo come across as melodramatic. But themessage is conveyed powerfully enough.

DOSTANA (1980)One of the highest grossing films of the 1980,Raj Khosla’s Dostana pitted Amitabh Bach-chan against Shatrughan Sinha in the roles ofa police officer and a lawyer respectively.Vijay Varma (Bachchan) and Ravi Kapoor

OBJECTION, MY LORD!(Above) Nargis in Awara, atrend-setting movie; (facing page) Arshad Warsiin Jolly LLB, a true-to-lifedepiction of trial courts


full-throated scream,pointing fingers at the

judge as if rebuking him. Atone point, he even suggests that

the court’s structure be demolished and thebooks inside, burnt. This evokes an surpris-ing reaction from the judge, who looks downas if hanging his head in shame, like a schoolboy being scolded by his teacher.

KYONKI MAIN JHOOTH NAHI BOLTA(2001)Inspired by the Jim Carrey starrer hit LiarLiar, David Dhawan presented this comedycentered around a lawyer who usually depe-nds on lies to win his cases but is forced tospeak only the truth after his son makes awish that his father should only speak thetruth. Govinda plays the lead role, lawyer RajMalhotra. Hilarity ensues after Raj is physi-cally unable to say anything but the truth.The cat gets his tongue right in front of thejudge and he alienates several people in theprocess. However, the film attempts to give amessage on the importance of credibility andethics, especially in the legal profession.

AITRAAZ (2004)This Abbas Mustan film, starring KareenaKapoor, Akshay Kumar and PriyankaChopra, is a milestone, as it tackles the con-troversial issue of sexual harassment at theworkplace. It has the female lead playing alawyer, which only a handful of Hindi filmshave done. The court scenes in the film werea hit with the audience, because of the thrillof watching a woman boldly fighting for herhusband. The courtroom sequences andarguments may not be very realistic, whatwith last-minute witnesses and audio record-ing over a mobile set causing a complete shiftin the verdict. However, it made for greatviewing material.

client’s innocence by drinking“poison” from a bottle. The wholesituation seems as implausible asalien abductions, but provides unparal-leled entertainment. Kapoor picks up thebottle—presented as evidence along with achemical report of its contents in the court—with his bare hands. He then proceeds togulp down the contents and stands to tell thetale, resulting in his client’s acquittal.Imagine lawyers doing this in real life.

In another melodramatic scene, Verma,while arguing in a murder trial, mentions tothe judge that the soul of the victim is presentin court and is awaiting justice. He demandsthat the judge heed his supernatural claims.

EK RUKA HUA FAISLA (1986)Presenting a very different take on court-room dramas, this Basu Chatterjee film fol-lows the argument between 12 members of ajury who have to infer whether an accused ina murder case is guilty or not based on cir-cumstantial evidence. Annu Kapoor, PankajKapur and Deepak Kejriwal, among otheractors star in the film, which is based on theHollywood film, 12 Angry Men. Questioningthe efficiency of a judicial system that can beeasily manipulated unless upstanding citi-zens and professionals take notice, this filmstill continues to be a cult movie.

DAMINI (1993)Who can forget Sunny Deol screaming “tare-ekh pe tareekh” in this popular RajkumarSantoshi film? The dialogue has come toepitomize what ails our judicial system today,with one adjournment after another. Figh-ting a high-profile gang rape case against atop-notch lawyer, Deol, in his role as Govind,has all the machismo of a quintessentialBollywood hero, but with a black robearound him. His character starts off as a dis-gruntled man, but eventually gives out a


SPECIAL STORY/ bollywood/ legal scenes

IL

MAINE GANDHIKO NAHI MAARA (2005)Applauded by film critics andniche audiences across the country, thisJahnu Barua film, starring Anupam Kher,Urmila Matondkar and Parvin Dabbas, fol-lows the descent of Uttam Chaudhary (Kher)into a mental illness, which leads him tobelieve that he may have killed Gandhi. Thefilm includes a courtroom sequence to provethat the toy gun that Uttam had used couldnot have killed anyone. It comprises stellarperformances by the cast, especially Kher.

NO ONE KILLED JESSICA (2011)Directed by Raj Kumar Gupta, with VidyaBalan and Rani Mukerji in lead roles, thisfilm was based on the controversial JessicaLal murder case. Balan played Sabrina Lal,the deceased’s sister while Mukerji played ajournalist groping for the truth. With wit-nesses turning hostile in the blink of an eyeand outrageous claims by a few of them like“I don’t know Hindi” and “I was not in town”,the courtroom drama in this film kept view-ers on the edge of their seats.

OH MY GOD (2012)Kanji Lal Mehta (Paresh Rawal) decides tofight a case in court against God himself inthis popular film directed by Umesh Shukla.When his shop collapses in an earthquakeand the insurance company, with whom hisshop is insured, refuses to come to his aidsaying the mishap was an act of God, Rawalsues the Almighty. Godmen and lawyers ofthe insurance company are in for a shock asMehta comes up with most original argu-ments on religion, faith and spirituality.Courtroom scenes are especially memorableon account of Rawal’s endearing and effec-tive portrayal of a middle class man, who is

disillusioned with thewhole idea that a supernat-ural entity watches over us. Thecross-questioning of spiritual figuresmakes for high-quality comedy.

JOLLY LLB (2013)Based on the 1999 Delhi BMW hit-and-runcase, this Subhash Kapoor film went on towin a National Award for its entertaining yetenlightening retelling of events. ArshadWarsi and Boman Irani play sparring advo-cates. The same court setting serves as a play-ground for several laugh-out-loud momentsas well as laudable ones. From a local singerbreaking into a song inside the witness box,to another witness being asked to sit like achicken and yodel for lying in court, this filmhas it all. Saurabh Shukla brings alive thecharacter of a slouch judge, but one who can’tbe fooled. Memorable monologues and excit-ing arguments make for good entertainment.

SHAHID (2013)Directed by Hansal Mehta and based on thelife of lawyer and human rights activistShahid Azmi who was assassinated in 2010,this film is a realistic and touching recreationof courtroom drama. Raj Kumar Yadav playsthe titular character, bringing earnestnessand passion into his portrayal. Azmi zea-lously defends his client who is accused ofbeing a terrorist.


HUMAN INTEREST/ faith /uttarakhand

in a temple near almora, believers present their prayerson stamped paper to golu devta

By Ramesh Menon

For Whom theBells Toll


WHICH is the highestcourt of the land? TheSupreme Court, youwould say without bat-ting an eyelid. But for

thousands of petitioners, the only court theytrust is Chitai Golu Devta Temple, abouteight kilometers from Almora. It was built in1638 and the folklore since is that the deityloves to deliver justice.

So, like a typical court, scores of petitionson judicial stamped paper of `50, `100 and `500 denominations are strung all over thetemple, trying to attract the attention of GoluDevta, one of the most popular deities in theKumaon Hills. The petitions spell out thegrievances in meticulous detail, completewith figures, addresses, names and evenphone numbers. They eloquently display thedeep faith petitioners have in getting theirgrievances addressed.

THE FINAL COURT(Facing page) The templeprecincts; (above) petitions hanging from atemple wall

When their wishes are fulfilled, they comeback to the temple for thanksgiving anddemonstrate their gratitude by removing thepetition and stringing up a brass bell.Thousands of bells thus tinkle away in thebreeze, lending a lyrical quality to the place.

DESPERATE PLEASMany of the petitions hanging around areactual petitions rejected by courts. Some arepleas urging the deity to give them quickrelief and deliver justice. The pleas are var-ied. A lover wants to be united with hissweetheart despite opposition from parents;a girl wants to do well in an examination; ayoung man wants a job; someone pleads forpeace at home; another wants freedom froman alcoholic husband or even a cure for aserious illness.

Pore through the petitions and you willfind every imaginable request. Hold yourbreath, one petition had a judge praying forelevation to the Supreme Court. When itrecently fructified, he went back, removed hispetition and hung up a brass bell. There werenumerous petitions from lawyers pleadingthat they get appointed as judges.

Ponty Chadha, the real estate magnate,had filed a petition asking for full mining



HUMAN INTEREST/ faith /uttarakhand

rights in Uttarakhand. His wish, as we allknow, was granted. Then, there are film personalities like Raj Kumar Santoshi whohave visited the temple with petitions.Bhojpuri film actor and singer Manoj Tiwarihung a bell there after he became a memberof parliament. A newspaper reporter too hasa bell in his name after he found a job.

FAST WORKBut not all are lucky. One believer filed fivepetitions, one after the other, as nothingwould come of the land dispute he wasinvolved in. He filed the fifth petition withthe help of an advocate and was amazedwhen, within four hours, he got a positiveresponse from the police about the dispute.

The petitioners come from near and far.Many are from Maharashtra, Uttar Pradesh,Bihar and of course, Uttarakhand. There wasone even from distant Kerala. Clearly, faithreigns supreme.

There are plenty of legends about thedeity and the temple. According to KumaonKe Devalay, a book by Jagdishwari Prasad,Golu was the son of a king from Champawat,the ancient capital of Kumaon. Unknown tohis father, his wicked stepmothers stealthilyspirited him away as they didn’t want him tobecome the next king. From a young age, the

child suffered injustice. He put up a success-ful fight against his tormentors and killedthem by tossing them into boiling oil. Afterhe was crowned, he was catapulted as a godwho dispensed justice to all.

Another legend is that Golu was a generalin the army of Baz Bahadur, the king ofChand between 1638-78, and died displayingexemplary valor during a war. So, a templewas built in his honor and those who visitedit got justice.

Many also consider Golu Devta as anincarnation of Shiva, who was born to dis-pense justice in an unfair world. The pres-ence of Golu Devta also extends beyond thelittle temple. All around it are pictures of thedeity as well as small images for sale. To keepthe legend alive, numerous juicy folk storiesrevolve around Golu Devta.

Those who have benefitted swear by thepower of the God of Justice. Others are justamused by the tales.

MARK OF GRATITUDE(Facing page) Bells tiedby devotees whose wishes were fulfilled;(above left) a petition on stamp paper; the benevolent diety himself

One petition had a judge praying for elevation to the Supreme Court. When itrecently fructified, he went back, removedhis petition and hung up a brass bell.


IL

GLOBAL TRENDS/ islamic state / spreading out

the free run ofjehadis in syria

and iraq has gotthe world alarmed.

but they havebeen nurtured bythe united states

itself and are nowstriking back atthe superpower

By Seema Guha

THE world has suddenly woken up to the dangers of theIslamic State (formerly the Islamic State of Iraq andthe Levant), a force once inadvertently funded by theUS, its western allies and Arab states like Saudi Arabia,UAE and Qatar. The video tapes of the barbaric behea-ding of two American journalists, James Foley andSteven Sotloff, brought back memories of a similar

incident, when another American journalist, Daniel Pearl of The WallStreet Journal, was beheaded in Pakistan. Then, as now, the world wasshocked. The message accompanying the ghastly images was both crudeand chilling, warning the US to stop the bombing of IS targets in Iraq. Itsaid, “…as your missiles continue to strike our people, our knife will con-tinue to strike the necks of your people.’’

Yet, much before this, Syrian soldiers battling jehadis in Syria were sim-ilarly beheaded. The world did not pay much attention then because thosekilled were on the wrong side, fighting for President Bashar al-Assad.

CANCEROUS FORCEVery little was known of this group, till they overran the Iraqi army andtook control of large swathes of territory. In Syria, where Aleppo and othertowns had fallen to the jehadis, no one had bothered much, happy that

METASTASISUNI


The Americans created monsters who turnedagainst them. They poured huge amounts ofweapons and money to arm the Mujahideento take on the Russians in Afghanistan.

those opposed to Damascus were gainingground in Syria. But today, the IS is like afast-spreading cancer, which needs to beeliminated before it takes control of moreareas. The US has begun air strikes on the IS,but some believe that action should havecome faster.

Speaking after Sotloff ’s killing, USPresident Barak Obama vowed to “degradeand destroy” the IS spread across swathes ofIraq and Syria. He conceded that this couldtake time, but warned that those who tookAmerican lives would not be spared. This isno empty boast. The Americans proved itwhen they tracked down Osama bin Laden,10 years after the terror strikes of 9/11. Theman responsible for the murder of ChrisStevens, the US envoy to Libya, has also beenhunted down and taken prisoner.

Americans are now realizing the potencyof the IS, which they unwittingly supportedagainst Damascus. Michael McCaul, chair-man of the US House of RepresentativesHomeland Security Committee, believes thatthe IS poses “the worst threat to the US, since9/11.” US Secretary of State John Kerry, writ-ing in The New York Times, called for a“world coalition against terror. What’s needed to confront the nihilistic vision andgenocidal agenda is a global coalition, usingpolitical, humanitarian, economic, law enfor-cement and intelligence tools to support military action.’’

GLOBAL THREATLike the US, Saudi Arabia, which spent bil-lions of dollars to fund jehadi Sunni groupswhich gathered in northern Syria to oustAssad, is now waking up to the threat offunding these groups. King Abdullah earlierthis month dubbed the IS as an “evil forcethat must be fought with wisdom and speed.”He believes, like Kerry, that the world mustcome together to fight this menace. “Itwould, after a month, arrive in Europe andthe month after that, in the US,” he warns.His point is that it is not just West Asia, butthe entire world, that would face the deadlyconsequences of the IS.

But King Abdullah knows very well thatthe IS is the byproduct of fierce rivalrybetween Sunni and Shia sects in West Asia.

NO MERCY IN THEIRLEXICON(Facing page) Yazidi families fleeing IS brutalities in Sinjar town in Iraq; (above) Iraqi soldiers being herded totheir execution ground inSalahaddin Division

Promoting favorite jehadi groups for strate-gic advantage has been the rule among com-peting powers in the region for severaldecades. The rivalry was triggered by nerv-ousness among Sunni powers, who fearedthat the Iranian revolution of 1979 wouldembolden Shia populations across the regionto look to the Ayatollah for guidance and actas fifth columnists (any group of people whoundermine a larger group such as a nationfrom within). Both religious and politicalleaders were hand-in-glove on both sides tofuel this rivalry. This has now gathered steamand come to haunt all of them.

Initially, the IS was part of the rag-tagarmy encouraged to fight against Assad. Heis an Alawite leader and was the target ofSunni powers and hated by Israel and the USfor his close ties with both Iran and


Moscow. The Syrian opposition, which bothSunni Arab countries and the West support-ed, were a mix of jehadi forces and had ele-ments of the Al-Qaeda. But Abu Bakr al-Baghdadi, an Iraqi jehadi leader, fell out withthe Al-Qaeda and struck out on his own.

Today, the IS has outstripped the Al-Qaeda and metamorphosed into the mostpopular jehadi group, ready to change thepolitical contours of West Asia. Its early suc-cess in Syria and Iraq swelled its ranks, andfuelled ambitions to build a modern daycaliphate, stretching from the Persian Gulf tothe Red Sea, where Sharia law would bescrupulously followed. And so, the change ofname from ISIS to the simple Islamic State.

It is ironic that Obama and KingAbdullah should now wake up to its dangers,considering they did not pause to thinkbefore encouraging the assorted groups tofight Assad. It was quite clear even at thattime that the Syrian opposition fighters werea dangerous lot of jehadis.

WRONG POLICIESThe Americans have a history of unwittinglycreating monsters that finally turn their gunson them. The Cold War rivalry between theUS and the former Soviet Union resulted inproxy wars across trouble spots worldwide.There was massive inflow of arms and bil-lions of dollars spent by them in arming the

Mujahideen to take on the Russians inAfghanistan.

Foreigners joining the jehad and workingto free an Islamic country from Communistswere welcomed with open arms. Russia wasthe enemy and it did not matter who wasarmed to do the dirty work.

Once the Russians were forced out by theMujahideen, former president Najibullah’sposition weakened considerably, and he wasfinally dragged hanged for all to see. By thistime, the entire region of Pakistan andAfghanistan was awash with arms generouslysupplied by the US.

Though the Taliban was a creature ofPakistan, the situation in Afghanistan helpedthis force take control of it. Osama bin Ladenwas a Saudi contractor, who attended allAmerican embassy parties in those headydays and got US patronage. During the firstterm of US president Bill Clinton, a section ofthe state department was even keen to getthe Taliban recognized in the UN, but nego-tiations fell through because of the intransi-gence of this group.

Finally, 9/11 happened and the Talibanwas ousted by US forces. Despite 10 years ofUS and NATO presence, Afghanistan is nei-ther stable or peaceful. Even the recent elec-tions results are being contested, indicatingthat once the US and NATO forces leave bythe end of the year, Afghanistan may see the

GORY END(L-R) Daniel Pearl, who was

killed in Pakistan in 2002;and Steven Sotloff andJames Foley, American

journalists beheaded by the IS

GLOBAL TRENDS/ islamic state / spreading out


The US and Saudi Arabia, who have nowwoken up to the danger of the IS, did notpause to think before encouraging theassorted groups to fight Assad.

rise of the Taliban, threatening the securityand stability of both south and central Asia.

OUTRIGHT LIEAnother hotspot the US jumped into wasIraq, where it invaded the country to locateand destroy Saddam Hussain’s “weapons ofmass destruction.” This, as was evident, wasan outright lie. The idea behind the interven-tion in Iraq was regime change, which wasdeftly done. But the result was the destruc-tion of a once-vibrant nation. Ethnic divi-sions, Sunni-Shia bloodletting and the radi-calization of both sects in Iraq have led to thismess. Incidentally, the US backed Saddamduring the eight year Iran-Iraq war, startingfrom September 1980.

Randall Bennett, a US specialist whospent 25 years tracking terror in Pakistanand Afghanistan, terms the IS “specialists interror.’’ In the early days, most of the jehadigroups he dealt with were still “learning andearning their wings.” Now, the IS is a profes-sional terror outfit. “This means total brutal-ity and the odds against rescuing anyone heldby them are reduced,” says Bennett.

As terror outfits get smarter, the dangerposed by them globally has increased propor-tionately. For India, this is bad news. Already,reports of disaffected youth from Maha-rashtra joining the IS are emerging. Theactual numbers are anybody’s guess. The

recent announcement of Ayman al-Zawahiri,the leader of the Al-Qaeda, that more suchfranchises would be opened in South Asia isdisquieting. He went so far as to nameKashmir and Assam, while also mentioningMyanmar, Bangladesh and Sri Lanka.

Whether this is Zawahiri’s bid to stealsome of the thunder from IS (which has out-stripped it in popularity in recent months) isnot known. India is particularly vulnerable.Two dozen committed jehadists, either of theIS or the Al-Qaeda, can wreck havoc here.

Security expert, Bruce Riedel, writing inThe Daily Beast, believes that the Pakistanarmy and its spy agency, the ISI, are targetingIndia and getting Al-Qaeda and other terrorgroups to focus on India, in an effort to hit atPrime Minister Nawaz Sharif, who is keen onimproving ties with India. He thinks thatZawahiri is hiding in Pakistan. If the ISI canget the Jaish-e Mohammad, Al-Qaeda andthe Lashkar-e-Taiba to work together againstIndia, the Modi government would have amajor trouble at hand.

UNI


IL

GLOBAL TRENDS/ islamic state / human rights cases

untold atrocities have been carried out bythe islamic state against non-sunnis. howlong will the international community take toact against them? By Shashikumar Velath

THE Islamic State (formerlyknown as the Islamic State ofIraq and the Levant), an armedgroup, has launched a system-atic campaign of ethnic cleans-

ing in northern Iraq, carrying out war crimes,including mass summary killings and abduc-tions, against ethnic and religious minorities.

Following the advance of IS fighters intotowns and villages in northern Iraq sinceJune 2014, hundreds of thousands of peoplebelonging to religious and ethnic minoritieshave been forced to leave their homes.Among those being targeted in northern Iraqare: Assyrian Christians, Turkmen Shia,Shabak Shia, members of the Yazidi faith,Kakai and Sabean Mandaeans. Many Arabsand Sunni Muslims, known or believed tooppose the IS, have also been targeted inapparent reprisal attacks.

SYSTEMATIC TARGETINGOn July 18, a mass exodus of Christian fami-lies took place in Mosul after the IS gave

THEKILLINGFIELDSOF IRAQ

Photos: UNI


them an ultimatum to convert, pay a tax,leave or be killed. Since taking control ofMosul on June 10, IS militants have also sys-tematically destroyed and damaged places ofworship of non-Sunni Muslim communities,including Shia mosques and shrines.

On August 3, the IS took over Sinjar innorth-west Iraq. Since then, thousands ofcivilians there and its environs, mainlybelonging to the Yazidi community, have fledtheir homes and have been seeking refuge inother areas, especially the Kurdistan regionof Iraq and Syria, after having been strandedfor days in the mountains with limited foodand water. As part of a campaign of ethniccleansing against religious and ethnicminorities, hundreds, possibly thousands, ofYazidi men and boys have been summarilykilled by IS fighters and thousands of womenand children have been abducted and are stillcurrently being held.

While many minority groups have beenforced to flee, more than a million SunniMuslims living in Mosul and other IS-con-trolled areas cannot because of ongoingfighting between the IS fighters and the Iraqicentral government and Kurdistan Regional

HUMANITARIAN CRISIS(Top) Families displacedby IS violence in Iraqreceive aid; (above) Amother and a daughtertake stock of the aid theyhave received; (facingpage) Yazidi families fleeing IS violence

Government (KRG) forces. Some SunniMuslims have been killed in air strikes by theIraqi central government forces.

BRUTAL REGIMEAmnesty International has published a newbriefing—“Ethnic cleansing on historic scale:the Islamic State’s systematic targeting ofminorities in northern Iraq”—detailing aseries of hair-raising accounts from survivorsof massacres. It describes how dozens of menand boys in Sinjar region were rounded up


“The Islamic State iscarrying out despicablecrimes and has transformed rural areasof Sinjar into blood-soaked killingfields in its brutal campaign to obliterateall trace of non-Arabsand non-SunniMuslims.”

—Donatella Rovera, AmnestyInternational’s senior crisis

response adviser

by IS fighters, bundled into pick-up trucksand taken to the village outskirts to be mas-sacred in groups or shot individually.

“The massacres and abductions provideharrowing new evidence that a wave of eth-nic cleansing against minorities is sweepingacross northern Iraq,” says Donatella Rovera,Amnesty International’s senior crisis res-ponse adviser, currently in northern Iraq.“The Islamic State is carrying out despicablecrimes and has transformed rural areas of

Sinjar into blood-soaked killing fields in itsbrutal campaign to obliterate all trace ofnon-Arabs and non-Sunni Muslims.” Two ofthe deadliest incidents took place when ISfighters raided the villages of Qiniyeh onAugust 3 and Kocho on August 15, killinghundreds of people. Groups of men and boys,including children as young as 12, from bothvillages were seized by these militants, takenaway and shot dead.

“There was no order, they (IS fighters)just filled up vehicles indiscriminately,” onesurvivor of the massacre in Kocho toldAmnesty International.

Said, who narrowly escaped death withhis brother, Khaled, was shot five times;three times in his left knee and once in thehip and shoulder. They lost seven brothers inthe massacre.

GRUESOME DEATHAnother survivor, Salem, who managed tosurvive because he hid near the massacre sitefor 12 days, describes the horror of hearingothers who had been injured cry out in pain.“Some could not move and could not savethemselves; they lay there in agony, waitingto die. They died a horrible death. I managed

CLASH OF CIVILIZATIONS(Top) IS fighters stand

guard at a checkpoint in the northern Iraq city of Mosul;

(above) Displaced IraqiChristians, who fled from ISmilitants in Mosul, pray at a

school which was turnedinto a refugee camp in Erbil

GLOBAL TRENDS/ islamic state / human rights cases


to drag myself away and was saved by aMuslim neighbor; he risked his life to saveme; he is more than a brother to me. For 12days, he brought me food and water everynight. I could not walk and had no hope ofgetting away and it was becoming increasing-ly dangerous for him to continue to keep methere,” he says.

Salem was later able to escape to themountains and then on into the areas con-trolled by the KRG. The mass killings andabductions have succeeded in terrorizing theentire population in northern Iraq, leadingthousands to flee in fear.

The fate of most of the Yazidis abductedby the IS remains unknown. Many have beenthreatened with rape, sexual assault or pres-sured to convert to Islam. In some cases,entire families have been abducted.

Meanwhile, the US has initiated militaryaction in Iraq against the IS, which includes

air strikes. Other countries have announcedmilitary support to Iraq and KRG for theiroperations against the IS.

It is essential that the international com-munity, the Iraqi government and KRG takeassistance and concerted action to meet theneeds of displaced persons. Humanitarianaid started arriving after mid-July, and it hasreached some in need. But new attacks oncivilians continue to be reported, displacingmore people every day.

The writer is Deputy CEO of AmnestyInternational in India.

AWAY FROM HOMEAND HEARTH(Above) Displaced Yazidipeople prepare tea forbreakfast at Bajed Kadalrefugee camp

Groups of men and boys from Qiniyeh andKocho villages, including children as youngas 12, were seized by these militants, takenaway and shot dead.


IL

Why settlements don’t fix wrongful convictions, given the number of years lost

By Nicole Collins Bronzan

GLOBAL TRENDS/ united states / legal settlements

It may seem to some a happy ending:A Brooklyn man wrongly convictedin a 1994 murder is at last cleared—after serving 16 years in prison—andthen reaches a $10 million settle-

ment with the city in the case.Perhaps, says Senior Editor Joe Sexton,

but it’s far from justice. “He will get his mil-lions, but he won’t get his life back, and

neither will his children or his family,” Sextonsays, joining Managing Editor Robin Fieldsin the Storage Closet Studio to talk about thesettlement.

While Collins’s family now has somemeasure of financial security, and the city hasadmitted wrongdoing, Sexton says: “Thereisn’t any real remedy that is committed to.The remedies that many people think arerequired really can only be brought about bylegislation that would, you know, create abetter, more effective way for making surethat prosecutors, in doing their vital jobs forsociety, don’t abuse their authority.”

Collins’s case, which was resolved morequickly than many wrongful convictions, illu-minates so many of the problems that plaguethe system, Sexton says. He fought for yearsjust to get the information to make his case,and many of the judges he appealed toseemed disinclined to even hear him out.

Indeed, Fields says, there have been manycases in the news recently dating back to thetenure of longtime Brooklyn District Attor-ney Charles Hynes’s tenure—and in particu-lar, one of his top prosecutors, MichaelVecchione. Vecchione, who handled Collins’scase, has been accused of a variety of miscon-duct in the case, including suborning perjuryand lying about it for years. Those accusa-tions, which ProPublica has investigated aspart of its Out of Order series, have resultedin no sanctions.

“At this point, Hynes has been voted out,which was an unusual outcome in and ofitself, and Mr Vecchione has retired,” Fields,says. “Is that enough to essentially clean upthe problems in Brooklyn, or in the system atlarge?” And if not, is there a way to quantifythe amount of misconduct perpetrated byprosecutors?

Sadly, Sexton says, ProPublica’s reportinghas revealed the answer to both questions tobe “a resounding ‘no.’ ”

“Part of it is that so much of what prose-cutors do in today’s justice system goes onoutside of the courtroom,” he says, includingplea bargains and prosecutors’ investigationsthemselves. As long as that’s the case, Sextonsays, there will be work to do.

Courtesy: ProPublica

NO COMPENSATIONGOOD ENOUGH


IL

Amitava Sen

MUSLIMS in the UK are increasinglyentering into marriages which arelegally not recognized by British law.The reason for this is that these couples conduct their Islamic wedding, nikah, without a civil ceremony. This is required for the marriage to be recognized under the law.

A civil ceremony basically means registering the marriage,which backs up as an essentialidentity document. This often landsyoung Muslim girls in trouble. By not registering, a lot of men are free tocommit polygamy. To add to theirwoes, only a few mosques in the UK have registered themselves.

INTERNATIONAL BRIEFS

Israel’s plastic bag lawA law designed to reduce the use of plastic bags in Israel recently sawEconomics Minister Naftali Bennett andEnvironment Minister Amir Peretz reachinga compromise on how much consumershave to pay for plastic grocery bags atsupermarkets. While the bill concerning itsusage originally called for payment of 60agorot for each bag purchased, the compromise brings down the cost significantly. Now, consumers will have to pay 30 agorot for the first year and 10 agorot within four years of the bill’s passage.

THE surge in illegal immigrants has sparkedoff a frenzy among multiple law enforcementagencies manning the city of Rio Grande inTexas. Once the lone territory of the BorderPatrol personnel, today, the place is teemingwith state troopers, national guardsmen andcivilian militia members, with limited communication among them. The BorderPatrol wants control of law and order back in its hands. Even locals aren’t happy withthe increased security. Texas reportedlyspends $1.3 million a week on state troopers and about $12 million a month on the guardsmen.

THE Army Intelligence of Lebanon has arrested 10 Syrian refugees for not possessing identification papers during a raid in northern Lebanon’s Zghorta area.The raid was part of the country’s new security measure aimed at tightening control on refugees by legalizing their presence and keeping track of their population and whereabouts. The arrested refugees did not have legal residencepapers and identification cards. Lebanon hosts the largest number of refugees,with about 1.3 million from Syria alone.

NEW Jersey Governor Chris Christie has issued a directive making sportsbetting legal in casinos and race tracks across the state. The directiveinformed authorities that casinos and tracks would not be held liableunder state law if they operate sports pools, as long as wagering does notoccur during events taking place in New Jersey or involve any New Jerseyteam. Christie’s move comes after three major Atlantic City casinos closeddown this year, while two more announced that they were losing out onbusiness. Sports wagering is a key source of revenue for the people ofNew Jersey. Previously sports betting was allowed under the state’sSports Betting Wagering Act that was passed by the legislature in 2012.

Immigrants kick off security frenzy

Arrested over lack of documentation

No bar on sports betting in New Jersey

Wedding Woesfor Muslims


CAN foreign entities escape prosecutionunder the garb of sovereign immunity orare there exceptions to the case?

Ganesh Narain Saboo had booked aconsignment of Reactive Dyes withEthiopian Airlines to be delivered onSeptember 30, 1992. However, the consignment delivery got delayed whichdeteriorated the goods. Ganesh’s complaint to the Maharashtra StateConsumer Dispute Redressal Commissionwas subsequently rejected. The NationalConsumer Disputes RedressalCommission, however, asked the statecommission to decide the case afresh.

In their appeal to the Supreme Court(SC), the airline defended its action, saying it can’t be prosecuted since it is a foreign entity and entitled to sovereign immunity. The SC held thatEthiopian Airlines was not entitled to sovereign immunity with respect to commercial transactions and directed the state commission to dispose off the dispute accordingly.

Understanding immunity

CONSUMER WATCH

How can buyers enforce their rights and seek remedial measures

Illustrations: Udayshankar


INSURANCE agents often pester people to take upnew policies for meeting their sales targets. And someof these policies do not even meet the stipulated termsand conditions.

Kamboj Ultra Sound & Diagnostic had insured theirdiagnostic equipment with the Electric EquipmentInsurance (EEI) policy of New India AssuranceCompany Limited. The terms of the policy clearly stated that the coverage of the claim was based onreplacement basis. When their scanner stopped working, Kamboj lodged a claim under the policywhich got rejected on the grounds that the scanningtube had undergone 100 percent depreciation and itsvalue was nil.

When the matter reached the Delhi State ConsumerDisputes Redressal Commission, the insurance company contested it, saying that since the tube hadalready completed 42,470 exposures at the time of tak-ing the policy, the claim was not valid. It said claimscould be made on tubes that had completed less than40,000 exposures. The Delhi forum passed its judg-ment in favor of Kamboj. The insurance company thenapproached the National Consumer DisputesRedressal Commission. The commission observed thatthe insurance company was aware of the extent of thetube usage at the time of issuing the policy, yet theychose to cover it. Therefore, the insurance companywas directed to reimburse the replacement cost of thetube along with 12 percent interest and `50,000 ascompensation to Kamboj.

Insurance claims

Medical negligence RTI grievances not consumer complaints THE Additional Mumbai Suburban DistrictConsumer Disputes Redressal Forumrecently held that when there is an alternative remedy available, a consumercomplaint is not maintainable. ManoharDesai had complained to the consumerforum after he failed to receive a reply toa query under the Right to Information Act(RTI). The information pertained to theMunicipal Corporation of GreaterMumbai’s failure to issue a copy of conveyance deed to Desai even after hehad paid for it. The RTI Act clearly saysthat the applicant has the right of appealavailable to him; therefore, a complaintunder a consumer forum does not lie.

Red tape rescue Hooligan banks

IT is essential to employ onlyqualified and trained doctors inhospitals. Otherwise, any medical negligence can holdboth the hospital and the doctor liable, just as TuraChristian Hospital was.

The Meghalaya StateConsumer Dispute RedressalCommission observed thatChandrika Sarkar was administered anesthesia at thetime of a caesarean operationby an unqualified pediatrician.This amounted to professionalmisconduct. The overdose of anesthesia resulted in her death after thebaby was delivered. Reprimanding the hospital for medical negligence, thecommission directed it to pay `8 lakh as compensation, along with six percent interest, for the mental agony suffered by the husband and depriving a child of his mother’s love.


USE of musclemen to get even with people is aroutine sequence in films, but when such incidentshappen in real life, it is a harrowing experience for people.

Balwinder Singh had filed a consumer complaint againstHDFC Bank and itsrecovery agent forusing goons toforcibly re-possesshis hypothecatedvehicle and selling itto a third party,which entailed physical harassmentand mental agony.The National Consumer Disputes Redressal Forumobserved that the statement about the customervoluntarily handing over possession of the vehiclewas untrue and that the bank failed to serve a prior notice regarding the possession and its sale.It upheld the previous judgment of the district and state consumer forum, which ordered HDFC Bank to pay a compensation of `4 lakhto the complainant.

THERE is good news for all the consumers out there. TheConsumer Affairs Department has proposed amendmentsin the Consumer Protection Act to allow consumers to filecomplaints against entities, such as builders, companiesand service providers with the consumer forums in the district they reside. The proposal elaborates that complaints have to be admitted within 24 days in the district forums. At present, a consumer can file a case indistrict forums where the defaulting entity has its main orbranch office. This move will reduce inconvenience andharassment of consumers to a large extent.

IS THAT LEGAL?

Is a litigant a “consumer” underthe Consumer Protection Act if hehas filed a suit or any other proceeding in a court after payment of court fee?

No. A court exercises sovereignjudicial power of the state whiledealing with a case and it is notrendering a “service” in pursuanceof a contract between the litigantand the court. Adjudication ofcases and dispensation of justice isdone by the court not as a quidpro quo for the court fee. Courtfees paid by the litigants go to theconsolidated fund of the state andhence, it cannot be said that thepayment of court fee by way of“consideration” for the “hiring” or“availing of ” a service from the

court. Therefore, a litigant is not aconsumer under the ConsumerProtection Act.

This was held by the NationalConsumer Disputes RedressalCommission, New Delhi, in thematter of Akhil Bhartiya GrahakPanchayat vs The State of Gujarat.

Can a company sell medicinesbelow the MRP or is it anunfair trade practice? This question arose in thematter of Novartis IndiaLimited vs J Anto and Anr(decided on August 4, 2014).It was held that “by nostretch of imagination, it issaid to be an unfair tradepractice. There lies no impediment in giving a medicine below the MRP.There also lies no rub if thecompany or chemist gives themedicine free of cost. Nobody can charge morethan the MRP, but it can be sold at a lower rate than the MRP.”

Cost of drugs

Consumer’s fault

Pombally vs State Bank of India and Anr.At the time of purchasing the policy it was

asked whether the insured had been treated for,or told that he was suffering from diabetes, andwhether he had been treated for, or told that hehad any liver disease. All the questions wereanswered in the negative. Later, he died due to“hepatic encephalopathy, hepatorenal syndrome, spontaneous bacterial peritonitis with alcoholicliver disease”. The insurance company rejectedthe claim on the ground of suppression of facts.The family of the deceased filed a complaint ongrounds of deficiency of services.

The forum said that “having suppressed thesaid facts while answering the questionnaire, weare of the opinion that the insurance companywas within its rights to repudiate the claim ofthe complainant”.

The court further observed that these were“material facts” and were only in the knowledgeof the insured. Therefore, he was obliged to disclose the facts correctly in the questionnaireissued to him for the purpose of obtaining thepolicy in question. In view of the matter, therewas no question of any deficiency of service on their part.

Illustrations: Aruna

Is it mandatory to fill the complete questionnaire at the time of purchasing aninsurance policy?Yes it is. Giving a wrong answer will be asuppression of facts by the consumer and hestands to lose the insurance claim. This washeld on January 13, 2014, by the NationalConsumer Disputes Redressal CommissionNew Delhi, in the matter of Shnyni Valsan

Not a quid pro quo


1. What’s “Davy Jones’slocker”? A: Jail B: Sea bottom C: Big treasure D: skeleton

2. Ashok calls his wifenames but WON’Tcall her ... . A: headquarters B: slavedriver C: apron D: bimbette

3. Plural of “mongoose”. A: MongeeseB: Mongoose C: MongiceD: Mongooses

4. Which spelling is correct?A: Entrepreneur B: Enterpreneur C: EntreprenuerD: Enterprenuer

5. When Ram says “I’measy”, he means ... .A: I am freeB: It’s easy for meC: I don’t mindD: I am a bachelor

6. What’s the meaningof “pick-me-up”?A: Reviving drinkB: ToddlerC: Fork D: Fatso

7. You are “taken to thecleaners”. It meansyou’ve lost ... . A: clothes B: money

C: reputation D: temper

8. There’s no time likethe ... . A: present B: youth C: picnic D: love

9. A Greek gift is ... . A: very expensive B: one harming therecipient C: very cheap D: an empty box

10. Luv is quantitatively challenged. He is ... . A: thinB: obeseC: poorD: miserly

11. Euphemism forbribe.A: Groceries B: Number nineC: Negative cash D: Sugar

12. French term“Nouveau riche”means… . A: Newly-rich person B: riches-to-rags story C: New neighbor D: Never seen

13. Our peon Raviknows how to use‘OPM’. A: Office people’smoney B: Other people’smoneyC: Office printingmachineD: Overtime per minute

14. A small plane. A: Four-by-four B: Rattletrap C: Microlight D: T-bird

15. Interjection “Ho-hum” signals ... . A: surprise B: boredom C: anger D: pain

16. The meaning of “languid”.A: listless B: colorless C: odorless D: hopeless

17. Posit is a ... . A: noun B: adjective C: verb D: slang

18. Nyctophobia is fear of ... . A. insects B. darknessC. relatives D. noise

19. Obsession withpower is … . A: Megalomania B: Monomania C: EgomaniaD: Plutomania

20. It’s “as tough as ... .” A: rockB: leatherC: ice D: brass

1. Sea bottom 2. bimbette 3. Mongooses 4. Entrepreneur5. I don’t mind 6. Reviving drink 7. money 8. present9. one harmingrecipient 10. obese 11. Sugar12. Newly-rich person 13. Other people’smoney14. Microlight15. boredom16. listless17. verb 18. darkness 19. Megalomania 20. leather

SCORES

0 to 7 correct—You needto do this more often.

8 to 12 correct—Good, get the scrabble

board out. Above 12—Bravo!

Keep it up!

ANSWERS

have fun with english. get the right answers. play better scrabble.

By Mahesh Trivedi

WORDLY

WISE

[email protected]


THE CHOPPER AND CHOPPY WATERS Indian Air Force MI-17 helicopter ferriesrescued people from Hamirpur Kona inRajouri district to relief camps.

Photos: UNI

PEOPLE / kashmir’s tragedy

SAILING IN THE SAME BOATRescue teams evacuates floodvictims and their livestock inPantha Chowk.

BALANCING ACT Police personnel rescues flood victims at Pantha Chowk on theoutskirts of Srinagar.

UNITED IN TRAGEDYFlood- affected people share a meal at Sidhraarea about 20 Km from Jammu city.

BRIDGING THE GAP Jammu and Kashmir Chief Minister Omar Abdullah surveys a flood ravaged area in the state

india legal 30 september 2014 single pages smallest

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