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UNTOLD STORY OF THE DENGUE EPIDEMIC 34

NDIA
EGAL
I L
How politicians and hospitals duck legal obligations
Plus: Ajith Pillais personal nightmare

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October 15, 2015

STORIES THAT COUNT

RESERVATIONS

FOR ALL or
FOR NONE?
Kalyani Shankar on
the quota debate
which has lit a fire in
all political parties
following the Patel
agitation and
Bhagwats
pronouncement

Hardik Patel

28

Mohan Bhagwat

RAMESH
MENON:
Unending
stalemate
over NJAC

SEEMA
GUHA:
Nepals
constitution
hits home

SAJEDA
MOMIN:
Asserting
Desi rights
in UK

12

76

68

DINESH SHARMA: BIKRAM


Volkswagens bug VOHRA:
Is this the
in the ointment 72
way to
treat your
servants?

48

LETTER FROM THE EDITOR

INDERJIT BADHWAR

NO MORE
TEARS

NE of the saddest hours befell Indian


democracy in May 1990. During a stormy
and unruly session of the Rajya Sabha
when Congress (I), the defeated now-inopposition party led by Rajiv Gandhi, was
playing havoc with established norms of parliamentary conduct, the chairman and vice president of
India, Shankar Dayal Sharma wept like a child.
His body was wracked by uncontrollable heaving
and sobbing following insults hurled at him from
unruly law makers of the upper house. A former
Congressman and a devotee of fair play who took his
duties as chairman and vice president with the
utmost seriousness, he had been trying desperately
to tame the unruly members. Among the abuses
hurled at him was the now infamous line from
Congress Voice Brigade stalwart KK Tewari: Dr
Sharmas hysterical rantings have not served the
cause of democracy. The hapless vice president was
heard pleading: Shoot me, but dont murder
democracycome and throttle me.
This incident reverberated internationally. Indian democracy and the Nehru-Gandhi legacy of propriety and constitutionalism cut a sorry figure across
the world. Rajiv Gandhis carefully cultivated global
image as an Officer and a Gentleman took a beating.
The BJPs leaders, stalwarts like Atal Bihari
Vajpayee and LK Advani considered such shameful
shenanigans a blot on Indian democracy. In a historical irony, 25 years later, some of this same partys
members and spiritual and political mentors are
mounting gratuitous attacks on Vice President
Hamid Ansari which appear to be at complete vari-

ance with the image of a tolerant, vigorously democratic, equal opportunity-oriented India that Prime
Minister Modi is trying to promote in his Western
odysseys designed to attract geopolitical sympathy
and investment lucre to India.
Hamid Ansari is no pushover. He is no Uncle
Tom. He disparages every form of religious extremism. He is a sworn enemy of Muslim bigotry and the
idea of a uniform Islamic world. His accomplishments would do any nationeven a Hindu Rashtraproud. In the cause of Bharat Mata he has
served in the Indian Foreign Service in Baghdad,
Rabat, Jeddah and Brussels. He was chief of protocol to Government of India, high commissioner to
Australia, ambassador to Afghanistan and Iran,
permanent representative to the UN, and vicechancellor, Aligarh Muslim University.
He certainly does not need any more credential
recognition. Yet, starting with a falsely leveled accusation from BJP general secretary Ram Madhav
that he had deliberately refused to attend PM
Modis Inter-national Yoga Day, Ansari has become
the lightning rod for intolerant vitriol. As one commentator remarked: In what should have been a
celebration of Indian culture on the world stage
became (instead) petty politics, and aimed at one of
the most prominent Muslim leaders in India.
This could hardly bode well for Modis image
abroad, the new, post-2002 moderate/modernist
development-pushing statesman he has been
projecting, especially in light of President Obamas
crass warning, articulated on Indian soil in public, that India should be careful on matters of
INDIA LEGAL October 15, 2015

LETTER FROM THE EDITOR

VICTIM OF CAMPAIGN
The days following
Republic Day celebrations
saw a flood of messages
on social media that
Vice-President Hamid
Ansari had not saluted the
Indian flag

tolerance of different faiths.


Even though Madhav deleted his tweet in
the face of facts, it did little to inspire faith at
home from opinion shaping commentators:
The late, irrepressible Vinod Mehta tweeted
on June 22: shame in the name of human
being. And what else to say about his mentor
narendra modi! #IStandWithHamidAnsari.
Said commentator KC Singh: What worsens the error is that it isnt a loose cannon
from BJPs Rt flank but Ram Madhav, prima
donna linking BJP/RSS.

Ansari is no pushover. He is no Uncle Tom. He


disparages every form of religious extremism.
He is a sworn enemy of Muslim bigotry and the
idea of a uniform Islamic world.
4

October 15, 2015

Shekhar Gupta: Short, polite note of apology from Ram Madhav & BJP Pres to VP
Hamid Ansari will cut the losses. This needs
more than a mere delete. The Ambedkar
Periyar Study Circle tweeted: Ram Madhav
should try not to practice bigotry.

he stage for these attacks had been set


with accusations that Ansari had failed
to salute the flag on Republic Day
(never mind that he had proudly flown the
national tricolor at every embassy and mission
abroad as Bharats representative). Yet, he is
being dogged by terms like anti-India,
Jihadi-sympathiser and traitor.
This is McCarthyism in its most hideous
form. The vice president is an easy, soft, target.
He has no platform from which to defend
himself. The latest round of Ansari-bashing

The latest round


of Ansaribashing from
the far right is
because he has
advocated
affirmative
action to help
Muslims get
more education
and equal
opportunities for
socio-economic
advancement.
PIB

from the far right is because he has advocated


affirmative action to help Muslims get more
education and equal opportunities for socioeconomic advancement. In attacking him for
advocating this, RSS-BJP ideologues are actually pointing the gun at their own position on
this subject.
BJP leaders like Advani and RSS ideologues like the late Prof Rajendra Singh have
defined appeasement (tushtikaran) as the use
by secular parties of Muslims as vote banks to
perpetuate their political primacy instead of
addressing the real economic and educational
problems of minorities. What was Vice President Ansari advocating that was so different
from this point of view?
In fact, Ansari was merely reiterating with
renewed vigor the dust-gathering findings of
the government appointed Justice Sachar and

Justice Ranganath Mishra groups whose


reports were tabled in 2010.
The Government of India constituted
Justice Sachar Committee for preparation of a
report on the social, economic and educational status of Muslim community of India, and
Justice Ranganath Mishra Commission for
identifying criteria for socially and economically backward classes among the religious
and linguistic minorities, and to suggest various welfare measures for minorities including
reservation. Both the Committee and the
Commission have submitted their reports.
The introduction to the reports reads: It
has been established by Sachar Committee
and Ranganath Mishra Commission reports
that Muslims in India are most backward
community despite their rich cultural heritage
and strong numerical presence. The
INDIA LEGAL October 15, 2015

LETTER FROM THE EDITOR

ment sector employment is necessary to


enhance participatory governance. The presence of Muslims was found to be only 3% in
the IAS, 1.8% in the IFS and 4% in the IPS.
Overall, Muslims constituted only 4.9% of
candidates who appeared in the written examination of Civil Services in the years 2003 and
2004. Share of Muslims in employment in
various departments is abysmally low at
all levels.

May 1990, during


a stormy and
unruly session of
the Rajya Sabha,
vice president of
India, Shankar
Dayal Sharma
wept like a
child, pleading:
Shoot me, but
dont murder
democracy.

Minorities communities will certainly be benefitted at large, when these two reports are
implemented in true word and spirit.
Here are excerpts:
 While there is considerable variation in the
conditions of Muslims across states, (and
among the Muslims, those who identified
themselves as OBCs and others), the Community exhibits deficits and deprivation in
practically all dimensions of development.
Mechanisms to ensure equity and equality of
opportunity to bring about inclusion should
be such that diversity is achieved and at the
same time the perception of discrimination is
eliminated. This is only possible when the
importance of Muslims as an intrinsic part of
the diverse Indian social mosaic is squarely
recognized.
 The Committee recommends that an Equal
Opportunity Commission (EOC) should be
constituted by the government to look into the
grievances of the deprived groups. An example of such a policy tool is the UK Race
Relation Act, 1976. While providing a redressal mechanism for different types of discrimination, this will give a further re-assurance to
the minorities that any unfair action against
them will invite the vigilance of law.
 In a pluralistic society, a reasonable representation of various communities in govern-

October 15, 2015

ice President Ansari has not broken


into tears as did his more emotional
and fragile predecessor SD Sharma.
But obliquely, he recently delivered a learned
riposte to the growing illiberality and intolerance for dissent or opinions unpalatable to the
government that seems to be sweeping across
the nation, in the first Ram Manohar Lohia
Lecture at ITM University, Gwalior. Excerpts:
 In 1950 the People of India gave themselves
a Constitution that promised to secure to all
citizens, inter alia, liberty of thought, expression, belief, faith and worship. This was given
a concrete shape by the specific rights guaranteed by Articles 19 and 25 and the associated
framework ensuring their implementation.
The past six-and-a-half decades have witnessed the manner, and the extent, of their
actualization.
 The Constitution was not crafted in a vacuum. It was preceded by the Freedom Movement and the values enunciated in it. These
were formally encapsulated in the Objectives
Resolution of January 22, 1947. At the same
time the Constitution-makers, or some
amongst them, were not unaware of the
pitfalls. In his speech at the end of the drafting
process in the Constituent Assembly, Ambedkar had warned about the impending life of
contradictions.
 The quest for correctives often found expression through assertions relating to freedom
of expression and its concomitant, the concept
of dissent. It is concept that contains within it
the democratic right to object, oppose, protest
and even resist. Cumulatively it can be defined
as the unwillingness in an individual or group
to cooperate with an established authority
social, cultural or governmental. In that sense,
it is associated with critical thinking since, as
Albert Einstein put it, blind faith in authority

PIB

is the greatest enemy of truth.


 Dissent as a right has been recognized by
the Supreme Court of India as one aspect of
the right of the freedom of speech guaranteed
as a Fundamental Right by Article 19(1)(a) of
the Constitution. The court has observed that
the restrictions on the freedom of speech
must be couched in the narrowest possible
terms and that the proviso of Article 19(2) is
justiciable in the sense that the restrictions on
it have to be reasonable and cannot be arbitrary, excessive or disproportionate.
 In the globalizing world of today and in
most countries having a democratic fabric, the
role of civil society in the articulation of dissent has been and continues to be comprehensively discussed; so does the question of its
marginalization or suppression.
 Despite the unambiguously stated position
in law, civil society concerns about constraints
on the right of dissent in actual practice have
been articulated powerfully. On the surface,
wrote one of our eminent academics some
time back, Indian democracy has a cacophony of voices. But if you scratch the surface, dissent in India labours under an immense maze
of threats and interdictions. Referring to the
then new reporting requirements for NGOs,
he said:
Nothing is more fatal for disagreements
and dissent than the idea that all of it can be

BJP general secretary Ram Madhav (right)


claimed that Ansari had deliberately refused to
attend PM Modis International Yoga Day,
causing immense humiliation to the VP.
reduced to hidden sub-texts or external agendas.... The idea that anyone who disagrees
with my views must be the carrier of someone
elses subversive agenda is, in some ways,
deeply anti-democratic. It does away with the
possibility of genuinely good faith disagreement. It denies equal respect to citizens
because it absolves you of taking their ideas
seriously. Once we have impugned the source,
we dont have to pay attention to the contents
of the claim...This has serious consequences
for dissent.
This was written in 2012. It is a moot point
if, given the Pavlovian reflexes of the
Leviathan, things would have changed for the
better since then. Informed commentaries
suggest the contrary.
Every citizen of the Republic has the right
and the duty to judge. Herein lies the indispensability of dissent.
Jai Hind.

editor@indialegalonline.com
INDIA LEGAL October 15, 2015

OCTOBER 15, 2015

VOLUME. IX

ISSUE. 03

Editor
Inderjit Badhwar
Managing Editor
Ramesh Menon
Deputy Managing Editor
Shobha John
Executive Editor
Ajith Pillai
Associate Editor
Meha Mathur
Deputy Editor
Prabir Biswas
Art Director
Anthony Lawrence
Deputy Art Editor
Amitava Sen
Graphic Designer
Lalit Khitoliya
Photographer
Anil Shakya
News Coordinator/Photo Researcher
Kh Manglembi Devi
Production
Pawan Kumar

LEAD

No U-turns Here

28

RSS chief Mohan


Bhagwats call for a
review of the reservation
policy sparks off a debate
on this contentious issue.
But will political parties
relent when quotas keep
their caste-based politics
ticking, asks
KALYANI SHANKAR

CFO
Anand Raj Singh
VP (HR & General Administration)
Lokesh C Sharma
Circulation Manager
RS Tiwari
Vice-President (Ad-Sales)
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October 15, 2015

SUPREME COURT

Unending Fracas
The Supreme Court reserves its judgment on the validity of the NJAC. As the
imbroglio continues, justice gets delayed due to vacancies in courts, says
RAMESH MENON
COURTS

Law unto Themselves?


A Madras High Court judge initiating contempt proceedings against his own
chief justice, coupled with hooliganism by members of the bar, demeans the
reputation of the judiciary. VENKATASUBRAMANIAN reports
HEALTH

A Vector Called Govt Apathy


Dengue menace has been made worse by civic mismanagement and
infighting between various levels of governance, writes ARUNA SINGH.
Also, VENKATASUBRAMANIAN and AJITH PILLAI describe how private
hospitals are shying away from healthcare for all

12
20
34

FOCUS

A Cop, a Fighter

68

An Indian-origin officer of the UK Police Force wins a sustained


battle against discrimination, including a sexual assault case.
SAJEDA MOMIN brings you the story of gutsy Gurpal Virdi
ENVIRONMENT
SOCIETY

21st Century Slavery

48

In the upscale houses of civil servants and ministers, the


poor are made to slog without remuneration, reveals
BIKRAM VOHRA. This belies the notion that slavery is a
thing of the past
BOOKS

Troubled Times

Das Autos Dark Secret

72

Volkswagen is caught tampering with emission-testing software


in the US. This should serve as a wake-up call for India vis-a-vis
testing and compliance norms, warns DINESH C SHARMA

52

India Legal presents excerpts from India The Crucial


Yearsa peep into the Indira Gandhi era through the
bifocal of former IB chief TV RAJESWAR

A Flavor of Struggle
Women tea workers in Munnar strike work, forcing the
Tata management to give them bonus and the state
government to amend the Plantation Labor Act. A report
by JACOB GEORGE

Eligibility Crisis
A move to introduce educational criteria for panchayat
elections in Haryana through
a law was stayed by the
apex court, on the ground
that it would have excluded
a sizeable section of the
population from contesting,
reports VIPIN PUBBY

58

DIPLOMACY

Playing Big Brother

76

India should exercise caution while being critical of Nepals new


constitution, and the sidelining of Madhesis of Indian origin.
SEEMA GUHA analyzes the fragile issue

62

REGULARS

STATES

Edit................................................................................3
Quote-Unquote...........................................................10
Ringside......................................................................11
Supreme Court............................................................16
National Briefs.............................................................19
International Briefs.......................................................23
Courts......................................................................... 24
More News.............................................................66, 67
People......................................................................... 82
Cover Design: ANTHONY LAWRENCE
Cover Photograph: UNI

INDIA LEGAL October 15, 2015

QUOTE-UNQUOTE

I often say, if theres a strong wind


blowing, some might want to shut the
window. Others will want to put up a
windmill or launch their sails on the seas.
The difference between perception of
something as challenge or opportunity is
the difference between inertia and
initiative; status quo and progress.
Prime Minister Narendra Modi, addressing
the Indian diaspora in San Jose, US

Hindu fundamentalists tell me, You are


a jihadi. Go away to Pakistan. On the
other side, Muslim fundamentalists call
me a kafir and condemn me, saying Ill
burn in hell. I believe that as long as
both of them are abusing me, I must be
doing something right.
Javed Akhtar, in The Wire

A Muslim will become the chief


minister of Bihar if the Third Front
wins two-thirds majority and
forms the government.
Janadhikar Party chief, Pappu Yadav

They say that Rishi


Dadhichi made Vajra
out of his bone but I
think he would have
probably done some
scientific research to
develop a metal which
provided that kind of
superior technology.
So you can classify
him into a scientist.
Defence Minister
Mahohar Parrikar

10

October 15, 2015

When a soldier pledges


his life to protect his
country, he does it fully
without any conditions
and this is what we
expect from the prime
minister also, that the
promise he made to us,
he should fulfil it
completely, without any
conditions.
Actor and AAP member
Gul Panag, on OROP, in
Huffington Post

When a biological father


can do this (rape), how
bad can it get now? I
believe that such news
should not be given
excessive coverage as it
inculcates a feeling of
heroism among people
who already have a
criminal mindset. It gives
them a kind of energy
and pleasure to try
something new and they
commit such crimes.
Maharashtras Women Child
and Development Minister,
Pankaja Munde

Aruna

VERDICT
There may be times when we are powerless to
prevent injustice, but there must never be a time
when we fail to protest.
 Elie Wiesel

INDIA LEGAL October 15, 2015

11

SUPREME COURT/ National Judicial Appointments Commission

DECISION AWAITED
The Supreme Court
is yet to conclude on NJAC

The Imbroglio Continues


The apex court reserved its
verdict on petitions challenging
NJACs validity. Justice JS
Khehar has circulated his draft
verdict among judges of the
constitution bench. Two of
them want to study the draft of
other judges before taking a
final call
By Ramesh Menon
12

October 15, 2015

BATCH of petitions has


challenged the constitutional validity of the controversial National Judicial Appointments Committee (NJAC) and the
Supreme Court has reserved its judgment on them. It was feared that
the NJAC would give an upper hand to the
executive, thereby influencing judicial
appointments. The petitions include those by
the Supreme Court Advocates-on-Record
Association, the Bar Association of India,
Center for Public Interest Litigation, an
NGO, and others.

People approach the


court against illegal
actions of the executive.
They may apprehend
that a judge in whose
appointment the
government played an
important role may favor
the government.
Former Law Minister
Ram Jethmalani
When the NJAC matter was finally heard
on July 15, the court reserved its judgment,
directing that its interim order on the tenure
of additional judges of high courts would be
extended till pronouncement of the judgment in this case. It was heard by a constitutional bench of Justices JS Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and
Adarsh Kumar Goel.
India Legal has learnt that Justice Khehar
has circulated his judgment to the other four
judges, saying that the NJAC was unconstitutional. We have also learnt that two of the
judges want to see the stand taken by the others before giving their view on the draft judg-

A transparent collegium
would have been more
acceptable as it would
invite nominations and
have a search committee
of judges, academics and
lawyers to give inputs on
the nominee. We need a
fundamental change, not
cosmetic change.

The NJAC law would


give the government
absolute powers to
appoint docile judges
who will do things the
government wants. If the
NJAC becomes a reality,
the independence of the
judiciary will end, including
all social action litigation.

Former ASG Indira Jaising

Senior lawyer Colin Gonsalves

ment. While going to press, the final judgment had not been heard.
EAGERLY AWAITED
When the verdict comes out, it is likely to
spell out if the judiciary will have the primacy
to decide on the appointment of judges. It is
definitely going to be a landmark case as far
as constitutional cases go. While the judgment is eagerly awaited by the government
and the legal fraternity, it is not clear whether
it will be referred to a larger bench of the
Supreme Court.
Sources in the prime ministers office
(PMO) said that Union Law Minister DV
INDIA LEGAL October 15, 2015

13

SUPREME COURT/ National Judicial Appointments Commission

Justice Khehar (right) has in a draft judgment


called the NJAC unconstitutional. All
speculation is now on what the other judges
on the constitutional bench would say.

SELECTION ROW
(Below) Patna High
Court still awaits the
appointment of a chief
justice as the NJAC
impasse continues

Sadananda Gowda had personally visited


Chief Justice of India (CJI) HL Dattu two
days prior to a meeting at the PMO to select
eminent persons for NJAC. At that time,
Dattu had agreed to attend the meeting. But
on the day of the meeting, the prime minister
received a letter from the CJI pointing out
that since the matter was pending in the
Supreme Court, it would not be appropriate
for him to participate in the process.
So, what are the options before the government on NJAC?
If the Supreme Court rules and declares
the NJAC unconstitutional, the government
is likely to come out with another bill but will
not allow the old collegium system to continue which selected judges of both high courts

and the Supreme Court.


Legal experts feel that if the court develops a transparent mechanism for its own
accountability, then it may be difficult for the
government to propose another bill similar
to the NJAC.
MANY VACANCIES
The apex court may refer this matter to a
larger bench. In that case, the situation may
be the same as it is today, with no new
appointments being possible. As of today,
there are more than 392 vacancies for judges
in high courts and the Supreme Court,
according to the Department of Justice. This
has seriously affected litigants and the dispensation of justice as cases are piling up by
the thousands each day. As no decision can
be taken on appointments, the post of chief
justice has not been filled in the Gujarat High
Court, Gauhati High Court, Patna High
Court, Punjab and Chandigarh High Court,
Karnataka High Court, Rajasthan High
Court and Bombay High Court. These courts
are functioning with an acting chief justice.
Who are the losers? Ironically, many of
them are children and close relatives of
judges and politicians who are waiting for
their names to be cleared for appointment as
high court judges. It includes 73 relatives of
judges and 24 relatives of politicians. The

Prashant Panjiar

14

October 15, 2015

prominent ones are Somesh Khare, son of


former Chief Justice of India, VN Khare, and
Neeraj Tripathi, son of Keshrinath Tripathi,
governor of West Bengal. There are nine
other names that are under consideration to
become judges who are close acquaintances
of a powerful union minister.
Former law minister and noted lawyer
Ram Jethmalani while speaking at a seminar
on NJAC had called it a fraud on the constitution. He pointed out that a litigant should
not be part of a process for appointment of
judges and the government is the biggest litigant in the country. Corrupt politicians
always want a corrupt judiciary. We must
have an appointment system in which litigants should not have a say. People approach
the court against corrupt and illegal actions
of the executive and there may be apprehension and suspicion that a judge in whose
appointment the government played an
important role may favor the government,
he said.
Former additional solicitor-general of
India Indira Jaising told India Legal that she
did not agree with the selection method of
the NJAC that has been put in place by the
NDA government as it could prevent competent judges or those who have given judgments against the illegal acts of the government from being considered. The executive
just needs a veto to reject a judge and he or
she will not be appointed. It is a completely
unacceptable method as it can affect the
independence of the judiciary. A transparent
collegium would have been more acceptable
as it would invite nominations and have a
search committee of judges, academics and
lawyers to give inputs on the nominee. We
need a fundamental change, not cosmetic
change. We should not let the executive dominate the judiciary, she said.
As many as 64 complaints regarding corruption involving judges are pending with
the law ministry. However, the ministry has
not forwarded it to the CJI for action.
Sources said that it is because there is yet no
finality in the NJAC system.
Senior lawyer Colin Gonsalves told India
Legal: The NJAC law would give the government absolute powers to appoint docile
judges who will do things that the govern-

ment wants. If the NJAC becomes a reality,


the independence of the judiciary will end.
All social action litigation will also come to
an end.
OPPOSITE VIEW
However, this is in contrast to the stand
taken by the late Justice VR Krishna Iyer
who had said that a collegium untrained in
the task would select judges in a secret and
bizarre fashion, leaving room for nepotism,
communalism and favoritism in the absence
of guidelines. Nowhere in the world do we
have judges alone selecting other judges, he
had said.
After her retirement from the Supreme
Court, even Justice Ruma Pal had warned of
the collegium system and said that a chance
remark, a rumor or even third-hand information may end up damaging a judges
prospects. Consensus within the collegium is
sometimes resolved through a trade-off,
resulting in dubious appointments with disastrous consequences for litigants and the
credibility of the judicial system, she
had said.
Clearly, there are divergent views on
whether the collegium system is better than
the NJAC or not. All eyes are now on how
things will shape up after a final call on
the matter. IL

Sources in the
PMO said Union
Law Minister
DV Sadananda
Gowda (above)
had personally
visited CJI HL
Dattu two days
prior to a meeting
at the PMO to
select eminent
persons for NJAC.
Dattu later
declined to attend
the meeting as the
matter was
pending in the
Supreme Court.

INDIA LEGAL October 15, 2015

15

SUPREME COURT

Rights to Chakmas
and Hajongs
HE Supreme Court has
taken up the cause of rights
of Chakmas and Hajong refugees. It has directed the center
and the Arunachal Pradesh
government to offer them citizenship, setting a deadline of
three months.
The two ethnic groups had
migrated from East Pakistan
(now Bangladesh) to India during 1964-69.

The court ruling came on a


petition filed by the Committee
for Citizenship Rights of the
Chakmas.
The court ordered that they
should be insulated from all
kinds of hostility from the local
population and the center and
Arunachal government should
protect their life and liberty as
well as put an end to all discrimination towards them.

Film on gays under scanner


HE Gujarat governments decision to nix
the screening of Meghdhanyshya The
Colour of Life was virtually upheld by the apex
court. It observed that homosexuality depicted
in the film may be considered as a social evil
by a section of the society. It also ruled that its
earlier interim order of staying the Gujarat High
Courts decision of granting tax relief to the
film shall stand.
The Gujarati movie revolves around the
true story of a gay prince from the state. Although Gujarati color movies made after April 1,
1997 are given tax exemptions (except in cer-

tain cases), in this case the state tax commissioner felt the screening of the film may send
a wrong signal to the peopleas if the state
endorses homosexuality.
The apex court is likely to take up the matter again after at least three years. And the
maker of the film, KR Devmani cant release it
without the tax exemption due to financial constraints. The counsel for Devmani pleaded that
the courts order was violating fundamental
principles, but couldnt convince the court.
Incidentally, the film had already been
cleared by the Censor Board.

Declassifying files on Netaji


HE Supreme Court declined to lend
its weight for declassifying files on
Subhash Chandra Bose as pleaded by
petitioner Snehashish Mukherjee.
Instead, it asked the home ministry and
the PMO to reply as soon as possible to
the representation made by Mukherjee.
The counsel for the petitioner pointed
out that the center was evading the issue
on the insubstantial ground that the
move would spoil its relations with some

16

October 15, 2015

nations and that it should not impose


restraints on the right to know, unless
mandated by the constitution.
The court was, however, reluctant to
take up Mukherjees plea that the center
reveal the secret information in files at its
disposal, other than the 64 already
declassified by the West Bengal government. It observed that it could not issue
instructions to the center to declassify
the files.

Politics and criminals

Cant instruct MPs

AKING up the issue of


rampant entry of criminals
in politics, the apex court
sought the views of the
center and state governments on this issue.
It asked both of
them to respond on: a)
criminals being given
political patronage and
b) finding out ways to
ensure that politicians do
not dance to the tune of
criminals.
The issue came up while the court
was dealing with an eight-year-old appeal of the Uttar Pradesh
government. The state government had taken objection to the
Allahabad High Court ruling for setting up a committee of wellknown people to delve into criminalization of politics and come up
with solutions to check the menace. The high court had even listed out areas that needed to be looked into by the committee.
The apex court gave responsibility to senior advocate Sidharth
Luthra to find out whether the areas pointed out by the high court
had been dealt with, or it had left out any. It was informed that
most of the issues raised by the high court had been dealt with
by the apex court, barring a few.

HE apex court declined to issue any advice or directions to MPs


in parliament on how they should conduct themselves so that
there is no loss of time and public money.
It observed that the judiciary had its limitations and doing so
would tantamount to crossing the limits and it couldnt keep a tab on
how lawmakers behaved in the house.
The court was hearing a PIL from an NGO named Foundation for
Restoration of National Values. The NGO pointed out that parliament
over the years hadnt functioned properly, causing huge loss of legislation time and wastage of public money. It wanted the apex court
to step in and set guidelines for MPs in order to maintain the credibility of parliament.
The court felt that it was the prerogative of the government and
the speaker to ensure that parliament functioned smoothly,
and they would know
better. It noted that
MPs were endowed
with enough wisdom to manage their own affairs and
are responsible enough. After all, they
are elected by the
people, the apex court
observed.

A case for migrant workers


HE apex court lashed out at the
Odisha and Andhra Pradesh governments for the inhuman treatment
meted out to workers. It was reacting
to an incident in which the right hands
of two laborers from Odisha were chopped off by a contractor from Andhra
Pradesh in 2013.
The court warned both the governments that it will not spare them if they
did not act strongly on the matter, and
observed that either enough was not
being done to prevent exploitation or
steps taken were ineffective.
It asked the state governments to
get back within four weeks with affidavits mentioning the short and long

term measures undertaken to ensure


that migrant workers are not treated
like dirt and are safe while working in
brick kilns.
The two states had been earlier put
on notice by the apex court because of
the occurrence of such gruesome
incidents.
The court also wanted to know
whether any complaints had been filed
against those flouting laws on migrant
laborers. It also assigned secretary,
State Legal Services Authority, to do a
field survey of areas where large-scale
migration takes place and come back
with solutions to prevent labor any kind
of exploitation.
INDIA LEGAL October 15, 2015

17

SUPREME COURT

Gayatri Devis will upheld


HE battle for succession in the
Jaipur royal family was decided by
the Supreme Court in favor of the
grandchildren of the biological son of
the late Rajmata Gayatri Devi. The apex
court ruled that Rajkumar Devraj and
Rajkumari Lalitya, the grandchildren of
the Rajmata, had the sole ownership
rights over the shares of Jai Mahal
Hotels Pvt Ltd (one of the palaces of
the royal family converted into a hotel).
Their father, the late Maharaj Jagat
Singh, had transferred his shares in the
hotel in Rajmatas name, and which
she later bequeathed to her grandchildren in her will.
However, when the grandchildren
approached the Company Law Board
(CLB) for getting the shares trans-

ferred, Rajmatas stepchildren challenged her will, disputing its execution.


They demanded a pie in the shares.
The apex court observed that the
transfer of shares from Singh to his
mother and later the succession documents from Rajmata to her grandchildrenboth were undisputable and
unquestionable. The court agreed that
Rajmata had intimated the CLB about
her transfer deed.
The verdict will also pave the way
for Devraj and Lalitya to claim ownership of other assets of their father.
Singh had also bequeathed his shares
in other hotels to his mother.
Earlier, the Delhi High Court had in
2012 ruled in favor of Devraj and
Lalitya on the matter.

Nothing wrong in Ansals verdict


HE Supreme Court supported its verdict delivered
last month, allowing Gopal Ansal and Sushil Ansal
in the Uphaar fire case to walk free from jail only if they
paid a fine of `30 crore each within three months. Both
the brothers, who own the cinema hall, were pronounced guilty by the apex court for criminal negligence that led to the death of 59 people in June 1997.
They were awarded jail term for two years.
The court observed that there was no point in
sending Sushil to jail as he was too old to
endure a tough jail term and clarified that Gopal
was granted relief on grounds of parity and
keeping in view the peculiar circumstances of
the case, provided he also paid `30 crore.
Sushil is 75 years old while Gopal is 67.
The court, however, cited no other reason
except the age factor.
At the time the verdict was delivered in
August, Sushil had already served more than five
months in jail while Gopal had undergone imprisonment for over four months.
That the nature of the offense warranted a higher

18

October 15, 2015

sentence did attract its attention, but it was bound by


the options available under the law prescribing the sentence, the apex court observed. Section 304A slapped
on the brothers mandates a maximum imprisonment of
two years.

Compiled by Prabir Biswas


Illustrations: UdayShankar

NATIONAL BRIEFS

Actors in legal mess

OSMETIC company Indulekha and its


brand ambassador, Malayam star
Mammootty, have been sued by a consumer.
In a case filed in a consumer court in
Wayanad, Kerala, complainant Chaathu
claimed that Indulekha White Soap was not
as effective as its advertisement claimed. In
the ad, Mammootty says: To enhance
beauty, use Indulekha and beauty will come
to your doorsteps. Chaathu has demanded
` 50,000 as compensation.
In a another incident, an FIR has been

Bombay HC
stays sedition
circular

Somnath Bharti
finally
surrenders

AP MLA and former Delhi


law minister Somnath
Bharti became the target of a
manhunt by the Delhi police,
following his escape from judicial interrogation, minutes after the Delhi High Court dis-

Response
sought over
Pachauri case

registered against
Bollywood actors
Farhan Akhtar
and Ranbir Kapoor, for promoting an online shopping site which is
allegedly duping customers. The FIR has
been registered by lawyer Rajat Bansal, a
resident of Lucknow against Farhan and
Ranbir under IPC sections 406 (Punishment for criminal breach of trust) and 420
(Forgery). Along with them, directors of

DIVISION bench of
the Bombay High
Court comprising Justices
VM Kanade and Shalini
Phan-salkar-Joshi, stayed
the Maharashtra governments controversial August 27 circular on sedition.
The circular stated
that criticism of a politician or a public servant, in
the form of words, signs or
representations, could attract sedition charges

missed Bhartis anticipatory


bail plea. Bharti faces charges
of domestic violence and attempted murder, levelled by his
wife Lipika Mitra.
Bhartis assistant and another person were detained by
the police for questioning but
were later released. Two special police teams carried out
raids at his office and residence
in Malviya Nagar, but the law-

HE Delhi High Court issued a notice to the government, The Energy and Resources Institute (TERI) and
Dr RK Pachauri, seeking their
replies to a TERI employee
alleging that the organization
had not acted against its chief
Pachauri, accused in her sexual harassment complaint.
In May, an internal com-

online portal askmebazaar.com are also


been named in the FIR. Bansal, in his FIR
alleged that he had ordered a 40-inch LED
TV from the site on August 23 and had paid
`29,999 for the same through his debit
card, but he did not get the product within
10 days, as promised.

under Section 124A of the


IPC.
The bench was responding to petitions filed
by cartoonist Aseem Trivedi and advocate Narendra Sharma. The petitions
challenged the circular on
the grounds that it violated the constitutional rights of people and was likely to be misused in the
absence of any adequate
training to the police.

maker eluded custody.


He finally surrendered after
the Supreme Court gave him a
deadline.

Rajasthan quota
exceeds 50%

HE Rajasthan legislative
assembly passed two bills
granting five percent reservation to Gujjar-led special backward classes (SBC) and 14 percent to economically backward
classes (EBC), taking the total
allotted quota in the state to
over 68 percent. This is well
over the 50 percent ceiling set
by the Supreme Court in the
2007 IR Coelho vs State of
Tamil Nadu case, where the
court ruled that laws threatening to violate the basic structure of the constitution would
be open to judicial review.
The Rajasthan governments efforts at raising quotas
through a single Act in 2008
had been stayed by the High
Court, which had observed that
more than 50 per cent reservation without any valid justification is unconstitutional.

plaints committee (ICC) report was stayed by an industrial tribunal on Pachauris


plea. In her petition, the victim challenged the stay order
as well as the jurisdiction of
the industrial tribunal to deal
with appeals against the ICC
report.
The respondents have to
reply by November 16.
INDIA LEGAL October 15, 2015

19

COURTS/ Madras High Court Controversy

Undermining
the Law
A Madras High Court judge initiating
contempt proceedings against his own
chief justice and members of the bar
indulging in acts of hooliganism does not
augur well for the judiciary
By Venkatasubramanian

DEFYING
AUTHORITY?
(Above) Justice CS
Karnan of the
Madras High Court

20

October 15, 2015

HEN the practice of


and
non-compliance
with the law conflict
with each other, the
result is a deadly mix,
threatening the credibility of the profession
itself in the eyes of the public at large. The
happenings in the Madras High Court, which
are now before the Supreme Court, are illustrative of the larger malaise plaguing the
legal profession across the country. First is
the case of Justice CS Karnan, who belongs
to the scheduled caste. He alleges discrimination at the hands of the high court chief
justice, Justice Sanjay Kishan Kaul, and has
used the process of the court to initiate suo
motu contempt proceedings against the chief
justice on the selection of judicial officers.
Justice Karnans allegation that Justice
Kauls constitution of the selection committee to select judicial officers was irregular,
unfair and biased may have some basis, but
his initiation of the contempt proceedings
against his own chief justice, smacked of
gross abuse of the process of law, to settle
personal scores.
On May 17, the Supreme Court stayed the

contempt proceedings against Justice Kaul


and restrained Justice Karnan from any
interference in the selection process. On
September 21, when the matter came up
before the Chief Justice of India, HL Dattu,
he considered the report submitted by the
counsel for the registrar general of the
Madras High Court, KK Venugopal, and
expressed serious misgivings about current
happenings in the high court. Despite
Venugopals suggestion that the Supreme
Court could send a team of three judges to
visit the high court to report on the happenings, Justice Dattu held that Justice Kaul
must be given more time to handle the issue
administratively.
Meanwhile, Justice Karnan has written to
the president, the prime minister and the
union law minister, with copies to two Dalit
politiciansRamvilas Paswan and Mayawati. Copies have also been sent to the Tamil
Nadu governor, the state chief minister and
the chairpersons of the national commissions
for Scheduled Castes and Scheduled Tribes.
In his letter, Justice Karnan has further
alleged that Justice Kaul is not assigning
him appropriate category of cases for adju-

JS Studio

dication, and is excluding him from the


membership of important judges committees in the high court. He has further alleged
that Justice Kaul is guilty of violating the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by committing an atrocity, in terms of the provisions of
the Act. He accused Justice Kaul of denying
him the financial assistance of `5 lakh which
he sought from the high court to fight the
case in the Supreme Court.

ven as the Supreme Court adjourned


Justice Karnans case to October 26,
Justice Dattu could not avoid references to the re-cent happenings in the high
court, which seemed to have far more potential to damage the credibility of the judiciary
than Justice Karnans ego clashes with his
chief justice.
The Madras High Court judges preside
in courts with fear psychosis expecting mobs
to come in and attack them at anytime. It was
once a traditional court that we all looked up
to. Never before has it fallen to such low levels, Justice Dattu observed, expressing his
disappointment with the silence of the Tamil

Nadu Bar Council and the Bar associations


on the matter.
What provoked Justice Dattu were the
series of unconnected events, which brought
down the image of the Madras High Court.
First, advocates from both Chennai and
Madurai, along with their spouses and children, held placards in court halls when the
courts were in session, demanding that Tamil
be made the official court language in the
high court. According to a report, they
barged into the chambers of the judges, disrupting the suo motu contempt proceed-

COMPLEX
SITUATION?
(Clockwise from top
left) Chief Justice of
India, HL Dattu;
Justice Sanjay
Kishan Kaul, chief
justice of the Madras
High Court; Registrar
General, Madras
High Court, KK
Venugopal

INDIA LEGAL October 15, 2015

21

COURTS/ Madras High Court Controversy

Court. The BCI has directed the Bar Council


of Tamil Nadu to hold disciplinary proceedings against the 15 errant lawyers and has
warned that if proceedings were not concluded within a month, the matter would automatically stand transferred to the BCI.

Photos:UNI

SEEKING SUPPORT
Justice Karnan wrote letters to
Mayawati (left) and Ram Vilas
Paswan (right), citing his
grievances; BCI chairman
Manan Kumar Mishra

Chief Justice of
India HL Dattu
referred to
recent Madras
High Court
happenings.
He said
they seemed
to have the
potential to
damage the
credibility of
the judiciary in
the eyes of
the people.
22

October 15, 2015

ings being heard against two advocates of the


Madurai Bench. Chief Justice Kaul had to
call the Central Industrial Security Force to
protect himself and his brother judges from
possible violence from the agitating lawyers.
The two advocates from the Madurai
District Court Advocates Association invited
contempt proceedings of the high court for
making inflammatory speeches in protest
against the courts order directing the state
government to strictly enforce the wearing of
helmets by two-wheeler riders.
Instead of subjecting themselves to the
contempt proceedings and answer the allegations against them, the supporters of the two
lawyers indulged in hooliganism, and issued
boycott threats.
Justice Dattus expression of anguish had
its echo on September 22, with the Bar
Council of India (BCI) suspending 15 lawyers
in Tamil Nadu, after the BCI received their
names from the Bar Council of Tamil Nadu
and the registrar general of the Madras High

n his letter to the Tamil Nadu Bar


Council, the BCI chairman, Manan
Kumar Mishra has lamented the fall in
standards of the profession. In his order suspending the unruly advocates, Mishra has
revealed that the chairman of the Bar
Council of Tamil Nadu has expressed his
inability to take any action against the errant
lawyers, particularly the leaders of the unruly
advocates because of their muscle power, bad
antecedents and criminal history. Not only
the chairman but even the majority of the
members of the Bar Council of Tamil Nadu
are fearful and in panic because of
the stronghold of these lawyers, claiming
themselves to be the leader of the Bar,
Mishra wrote.
Mishra added that the number of nonpracticing advocates and the number of persons with fake and forged certificates (posing
themselves to be lawyers) is increasing by the
day. Such advocates in various courts of the
country have ample and sufficient time to
encourage strikes and disturbance, as they
neither have any work nor any responsibility,
he noted. According to the information
which he had, the police had to form a
human chain in two rows to safely escort the
Judges after the adjournment of the contempt case against one of the lawyers.
Mishra also justified the decision not to hear
the 15 advocates before suspending them, in
view of the serious nature of the professional
misconduct indulged by them. He has also
urged the holding of disciplinary proceedings
against these advocates in some neighbouring state by the disciplinary committee of
that Sate Bar Council.
The BCIs actionespecially its decision
not to follow the principle of natural justice
by hearing the advocates, before suspending
themappears debatable. But the decision
seems to be desperate, with even the State
Bar Council throwing up its hands, in view of
the threats from the unruly lawyers. IL

INTERNATIONAL BRIEFS

Brazil bans corporate donations


T
HE Federal Supreme Court of
Brazil has banned corporate
entities from providing funding to
political candidates in the future,
reports The Guardian.
The court found that the large
role corporates played in the
campaign funding compromised
the legitimacy of the elections.
Justices voted 8-3 in favor of the
ban, proposed by the Order of

Brazilian Attorneys (national bar


association). Rosa Weber, one of
the judges who ruled in favor of
the ban, argued that undue economic influence compromised
the legitimacy of the countrys
elections. Politicians running for
office in the future will be able to
receive money only from a pool
of public electoral funds and
from individuals.

Bangladesh ex-PM
to face trial

A $12 billion claim against Russia

ANGLADESHS High Court


ordered ex-Prime Minister
Khaleda Zia to face trial on
charges of embezzling money in
two corruption cases between
2001 and 2006. During her tenure
as PM, Zia awarded a contract for
the operation of Barapukuria
coalmine to a Chinese company,
thereby allegedly causing loss of
over $20million to the exchequer.
According to The Daily Star, the
HC gave the verdict after rejecting a writ petition filed by the BNP
chief in 2008 challenging the
legality of trial. Along with Zia, 15
others are also accused in the
case. Zia is looking for legal
remedies, including moving the
Supreme Court against the HC
ruling. Earlier, in March 2014,
the former PM and other members of the BNP were indicted for
embezzling funds from a charitable trust named after Zias
deceased husband.

ORMER Russian tycoon


Ser-gei Pugachev has filed a
$12 billion lawsuit against Russia, seeking compensation for
seizing his assets after he fell
out of favor with President
Vladimir Putin.
Pugachev, once dubbed Putins banker, told
mediapersons that Putins
allies had pursued him in
the courts across Europe
with false allegations of
embezzlement, adding that
he feared for his life.
They expropriated my
assets, said Pugachev,
52, in an interview in Paris.
Pugachevs lawyers said

he had just $70 million left.


Pugachev hopes to have his
case heard at the Permanent
Court of Arbitration in The
Hague.

Pakistan delays hanging paraplegic man

HE planned hanging of
paraplegic prisoner Abdul
Basit, convicted of murder in
Pakistan, has been delayed.
A magistrate ruled that Basit
could not be hanged as he was

confined to a wheelchair.
Pakistans prison guidelines
require that a person sentenced
to death stand on the gallows.
Basit, 43, has been paralyzed from waist down after
contracting an illness in prison.
Rights groups say that hanging
Basit would constitute cruelty
and a degrading treatment.
Pakistan has hanged 239
people, most of them terrorists,
since reintroducing the death
penalty in December 2014. This
followed a deadly Taliban attack
on a Peshawar school that left
over 150 people dead, most of
them students.

Japan to deploy
troops abroad

HE House of Councillors,
Japans upper house of
parliament, approved a
measure that allows the
countrys Self Defense Forces
to deploy troops abroad for
the first time since World War
II, according to The Japan
Times. The law marks a
departure from Japans postwar pacifism, in the face of
growing military power of
China and nuclear armed
North Korea. The legislation
was passed by the lower
house in July and, backed by
Prime Minister Shinzo Abe's
ruling coalition.
Critics are upset that the
law contradicts pacifist provisions in the constitution of
Japan, specifically Article 9,
which states: "the Japanese
people forever renounce war
as a sovereign right of the
nation and the threat or use of
force as means of settling
international disputes."

INDIA LEGAL October 15, 2015

23

COURTS

Nothing wrong
with the food act
HE Bombay High Court upheld several
provisions of the Food Safety and Standards Act, which were challenged in petitions filed by merchants, traders and hoteliers from Mumbai. The petitioners claimed
that many provisions were arbitrary and
violated the Right to Equality.
While dismissing the petitions, the court
ruled that such provisions actually served
the cause of public health by ensuring purity in food products. It also observed that
food producers compromising on quality
should be dealt with an iron hand and that
was what the act aimed at. It categorically
stated that the act was in the interests of the
citizens of India.

Illustrations: UdayShankar

Gujarat High Court &


Hardik Patel
HE seven-day internet mobile ban by the Gujarat
government in late August, in the wake of the arrest
of Patel leader Hardik Patel received unstinted support
from the state high court. Gujarat was rocked by widespread violence after Patel, leading the reservation stir
for the patel community, was taken into custody.
The Gujarat high court was hearing a PIL that contended that the ban took away the fundamental rights of
the people. The petition also raised objection to the
imposition of Section 144 CrPC by the Ahmedabad
police chief, alleging that it was illegal and irrational.
There was no need to completely ban internet services,
and at the most, the government could have denied
access to certain website, the petitioners felt.
The high court ruled that the ban was the need of the
hour to control the worsening law and order situation
in Gujarat.
Meanwhile, in another development involving Patel,
the high court met at an unearthly hour (1.20 am) on
September 23 and issued a notice to the state government to trace Patel, who had gone missing. It also verbally asked the Gujarat Police to find out the Patidar
Anamat Andolan Samiti (PAAS) leader.

24

October 15, 2015

The state government was asked to come back with


a response on September 24.
The court was acting on a habeas corpus plea from
two PAAS members. They told the court that Patel could
not be found and may have been taken into custody by
the state police after he held a rally in the Aravali district
of the state, defying prohibitory orders. The police on
the other hand held that Patel had evaded arrest after it
tried to nab him. At the time of going to press, Patel had
re-appeared in the Surendranagar district of Gujarat.

Revamp mortuaries in Delhi


AKING a grim view of the state of
mortuaries in Delhi, the Delhi High
Court ordered the state government
and the municipal corporations to
drastically improve the ways in which
dead bodies are kept therewithin a
set deadline.
The court was reacting to a report
it received from an amicus appointed
on the matter. The report showed that
mortuaries were in a terrible condition, with dead bodies lying un-

claimed for a long time, and eventually decaying.


Delhi police, the report stated,
was taking too much time to complete the procedure involved in disposing off the dead bodies. This was
true even in cases where the cause
of death was known, or due to natural
causes. The report also drew the
courts attention to the awful manner
in which the viscera samples were
being stored.

Sharma finally released on parole


ONVICTED and sentenced to a life
term in the Tandoor murder case,
Sushil Sharma was finally released on
unconditional parole on September 18
by the Delhi government and the Tihar
administration on the orders of the
Delhi High Court. He was found guilty
of murdering his wife Naina Sahni in
1995 and trying to dispose off her
body in a tandoor.
The court, however, pulled up the
Delhi government for not releasing
Sharma on September 15 itself,
despite the courts orders. The court

had on September 15 considered that


Sharma had spent more than 20 years
in jail and ruled that the former youth
Congress leader be released on
unconditional parole till the Delhi government decided whether to end his
prison term or not.
Sharma had pleaded for remission
claiming he had already spent more
than 20 years in jail, whereas the state
government could release a prisoner
who had spent 14 years. He wanted
the court to ask the LG and Delhi government to act fast on his plea.

A reprieve for Greenpeace


N a welcome development for
Greenpeace India, the Madras High
Court, in its interim order, put on
hold the governments order cancelling its license under the Foreign
Contribution Regulations Act (FCRA)
2010. The center was given eight
weeks time to respond.
The court took the decision after
hearing the plea of the executive
director of the NGO, who complained that the home ministry was
using FCRA to get back at it as it
was not successful in getting even

with the organization.


Greenpeace India had been embroiled in several court cases in
India against the center and received the judiciarys approval (in one
such case) to use its domestic
funds after the center sought to
block all its monetary sources.
Although the center had accused
Greenpeace India of FCRA violations
in the court, citing specific instances, the NGO said it had not received
any document from the center on
the matter.
INDIA LEGAL October 15, 2015

25

COURTS

Nasreen appeal baseless


FTER the Supreme Court
declined to entertain an
appeal from an NGO demanding
the cancellation of Taslima Nasreens visa for staying in India,
the Delhi High Court rejected the
appeal. The court observed that
the plea served no public interest. The PIL also wanted Nasreen to be sent back to Bangladesh. The center had recently
extended Nasreens visa by a
year in August.
The PIL filed by All India Human Rights and Social Justice
Front pointed out that she did

Honor the
national flag
OISTING the national flag
and singing the national
anthem on Independence Day
and the Republic Day is the
solemn duty of all citizens of
India, ruled the Allahabad High
Court. It was responding to a
PIL filed before it.
The PIL wanted the court to
use its powers under the writ
of mandamus and instruct the
Uttar Pradesh government to
make sure that all madrasas in
the state conduct the national
flag hoisting ceremony on the
two days.
The secretaries of all departments in the state government
have to ensure that the same is
done at all institutions controlled
or aided by the UP government,
the court ruled. The fundamental duties enshrined in the constitution mandates such a duty,
the court observed.

26

October 15, 2015

not follow the Foreigners Order


of 1948 and the Foreigners Act
of 1946 when she wrote the
script for a film, Nirbhashito
(said to be based on her life)
shown at the Delhi International
Film festival in 2014. The PIL
alleged that Nasreen did so
without getting a go-ahead from
the government.
It also accused her of scripting a television serial without
governments approval which
couldnt anyway be put on air in
West Bengal in 2013 due to
strong protests.

Show us pollution figures


EFERRING to a TOI report that pollution
levels had fallen drastically on September
23 in Gurgaon, the day the city observed a
car-free day, the National Green Tribunal
(NGT) asked the Haryana government to submit pollution figures for that day.
The national daily had reported that
10,000 cars were off Gurgaons roads, and as
a result, the 2.5 particulate matter (PM) levels
had tumbled by 21 percent on the day.
The court wanted to know whether the

facts mentioned in the report were authentic,


and, if so, on what basis they were arrived
atthe parameters used for measuring pollution levels.
It also wanted to ascertain whether reducing the number of cars on roads had a salutary effect due to lesser pollution.
The query attains significance as the center has contended in front of NGT that old private vehicles actually add negligible amount
to the PM levels in Delhi-NCR after the green
tribunal had banned 10-year-old
diesel vehicles in the region
in April this year. A study
was also presented in
the NGT which
claimed that the
actual number of
cars plying on city
roads was far below
the number registered
with the transport
department. The NGT
later stayed the ban.
As of now, a final
order on reducing pollution levels in Delhi-NCR is
awaited from the NGT.

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LEAD/ Reservations

To Quota or Not

RSS chief Mohan Bhagwats recent call for a review of the national
reservation policy has brought the focus back on what has long been
a contentious issue. But will political parties agree to refine, re-design
or even re-think on a formula which has successfully kept their
caste-based politics ticking?
By Kalyani Shankar

HE debate on reservation or quota for various


caste categories as well as
denominations got a new
lease after RSS chief Mohan Bhagwat recently
pitched for a review of
the seven-decade-old reservation policy, contending it has been used for political ends.
He has also suggested setting up of an apolitical committee to determine who all needs
the facility and for how long. The sensitive
issue has triggered off a controversy as
expectedthere are more vocal backers of
reservation than those for quota abolition.
Sharp reaction from the Mandalites led
by the RJD chief Lalu Prasad Yadav and the
quick words of explanation from the BJP

STATING THE
OBVIOUS?
RSS chief Mohan
Bhagwats remarks on
reservations is
not baseless

28

October 15, 2015

to Quota
distancing itself from the RSS chief s suggestion shows that politics supercedes everything else. Even the NDA allies like the Rashtriya Lok Samata Party have come up with a
sharp response.
So why did Bhagwat say what he did?
While the Mandalites may oppose his views
on the quota system, there is certainly some
merit in the RSS chief s thesis. There is truth
in his assertion that the quota system has
been politicised and it is not being implemented in the spirit with which it was introduced. Bhagwat got support from an unexpected quarter as the young Congress leader
and former Union minister Jitin Prasad, who
is a Brahmin, has also asked his party to look
into whether there should be a rethink and a

new mechanism be considered to do justice


to the downtrodden.
It is clear that at least in the case of
admissions to educational institutions quotas have been cornered by some influential
OBC castes while others have been left out.
The irony is that even influential communities like the Kerala Brahmins are now
demanding quota. Gujjars had agitated for it
in the past. The current Hardik Patel agitation in Gujarat has added to the fire as the
Patidars want reservation for all or for none.
BJPS DILEMMA
The BJP is in a dilemma. While it cannot
openly ask for abolition of quota system it is
doing so in a clever way. For instance, the
2014 BJP manifesto had been
silent on the issue of reservation
while
the
Congress and other
political parties spelt
out detailed policy
measures, including
reservation for SCs
and STs in the

Influential
communities
like the Kerala
Brahmins are
now asking for
quota. Gujjars
had agitated for
it in the past.
The current
Hardik Patel
agitation in
Gujarat has
added to the
fire as the
Patidars want
reservation for
all or for none.

NEW PITFALLS
Patidar Anamat Andolan
Samiti convener Hardik
Patels agitation has lent a
new twist to the fight for
quota system
INDIA LEGAL October 15, 2015

29

LEAD/ Reservations

castes and sub-castes assert stronger caste


identity consciousness and up demands.
Even 69 years after Independence, the debate continues whether there is need for the
quota system, and if so what should be the
criteria and who should get it. Since it was
more politics than social justice that triggered the introduction of reservation, there is
a demand now that it is time to end quotas
based on caste. Even BR Ambedkar, himself
a Dalit, called for the annihilation of caste.
According to some observers, the seven
decade quota experiment was long enough to
prove the efficacy of the system or lack of it.
It came into being in 1950 when those who
framed the constitution made a special provision for the Scheduled Castes and Scheduled Tribes in jobs and admissions to colleges, and that too for ten years, with possible
extensions if need be.

STOKING
QUOTAS
(Above and
right) The
Mandal
agitation of
1989 led to
political
churning and
the birth of
identity politics

While the
BJP cant
openly ask
for the
abolition of
the quota
system, it is
doing so
obliquely.
30

October 15, 2015

private sector. The BJP had not even stuck to


the promise in its 2009 manifesto to introduce reservation for the economically weaker
class in 2014.
However, reservation system is the winning mantra for Indian politicians and their
vote bank politics. No party wants to annoy
any caste group, howsoever small. After the
BSP chief Mayawatis success with her social
engineering in the 2007 assembly polls in
Uttar Pradesh, most other parties follow her
formula. Ironically, while politics is helping
it, as different castes bond with each other to
aggregate votes, social engineering also leads

MANDAL POLITICS
Look at the way how new quotas based on
gender and castes have been added over the
time. The then prime minister VP Singh dusted the Mandal Commission report from the
cupboard and implemented some of its recommendations in 1990 which included quotas for the Other Backward Classes, comprising some 27 percent of the population.
Interestingly, the Supreme Court, addressing
the OBCs in particular, defined the concept
of a creamy layer of the wealthiest and most
privileged among the OBCs, saying they must
now be excluded from quotas.
The Mandal agitation of 1989 showed
that the quota for the Backward Classes further divided society. This resulted in a violent
agitation by the student community and the
then prime minister VP Singh lost his job
despite having implemented the Mandal
Commission report.
However, it resulted in the political
churning and Mandal politics created leaders
like the RJD chief Lalu Prasad Yadav, Samajwadi Party chief Mulayam Singh Yadav and
many other Backward Class leaders who
emerged successful on the basis of their
castes. And they even captured power in
their respective states. The identity politics
also brought leaders like Kanshi Ram and
Mayawati of the BSP to the forefront, result-

ing in the growth of identity and caste-based


politics. Elections to parliament and state
assemblies ever since begin and end with
caste calculations.
Then there is a gender-based quota for
women with 33 per cent of seats in local bodies reserved for them, after a 1993 constitutional amendment. Surprisingly, this has
worked well and more than a lakh of women
have become village sarpanches and are
gradually asserting their rights.
Had the bill supported by Sonia Gandhi
been passed in the Lok Sabha, it would have
provided similar reservation in parliament
too. Although it was passed in the Rajya Sabha on March 9, 2010, political parties while
giving lip sympathy to the womens cause
sabotaged it. Now the bill is almost buried.
In the field of education, quotas and special scholarships for backward groups were
first established in the 1920s. For secondary
schooling, state funds were allocated to help
encourage more Dalit and tribal children to
come to schools. Reservation in colleges and
university led to lowering the entry marks
required by Dalits and other backward applicants to help them opt for higher education.
This was similarly introduced in the selection
process in the administrative services.
ARGUMENTS FOR & AGAINST
There have been many arguments in favor
and against reservations. It is not anybodys
case that the quota system has completely
failed. Quotas under various heads have partly achieved their basic goals.
Official statistics reveal that in public jobs
members of backward groups claim more
posts than earlier. Dalits who had just 1.6
percent of the Group A civil servant positions
in 1965, rose to 11.5 percent by 2011, and the
share is higher for more junior posts. The
pro-reservation interests want continuation
of the quota system. Some states like Tamil
Nadu have even gone beyond 50 percent
reservation.
Kaka Kalelkar, the chairman of the first
Backward Classes Commission had cautioned that reservation on the basis of caste
would not be in the interest of society or the
country. The shrillest voice opposing it comes
from the upper castes who seek reservation

Since it was more politics than social justice


that triggered reservation, there is a demand
now for ending quotas based on caste.
Even Ambedkar called for abolition of caste.
for the economically weak. Either do away
with all reservation or give it to everyone,
they demand. Some others argue that quota
is only demarcating society further.
The third contention is that it is being
used for the uplift of one section of the society at the cost of the other. The fourth is that
the intention of the authors of the constitution has not been achieved in the past
seven decades as benefits have not percolated
down to the deprived and needy as they are
cornered by a few. Even among the Scheduled Castes and Scheduled Tribes, the few
who have entered the IAS and other services
have not done much to pull up their deprived
brothers and sisters.
Fifthly, the quota provision has been criticized for discouraging a merit-based system
and it has ended up creating another privileged section. Finally, there is also the argument of reverse discrimination.
Therefore, some may say the time has
come to review and assess whether the

CASTE BENEFIT
Mandal politics has
created leaders like
the RJD chief
Lalu Yadav

INDIA LEGAL October 15, 2015

31

LEAD/ Reservations

CAUTIOUS
APPROACH
BR Ambedkar (L)
and Kaka Kalelkar,
the chairman of the
first Backward
Classes Commission

There is a view
that quotas be
abandoned and
replaced with a
time-bound
affirmative
action program.
To give Dalits or
OBCs or even
Muslims the
opportunities
that they are
justly entitled
to, alternative
programs
should be
created.

quota system has worked well or not and


rationalize it further. Moreover, if the quota
is to be determined on the basis of population of the Backward Communities then
clearly the extent of the quotas to be given
has to be determined from time to time.
After all, there are varying degrees of poverty
and prosperity amongst them. Is the Indian
political class willing to take a re-look at the
quota system, refine and redesign it while
keeping social justice at the core? Not so long
as it looks at quotas as a tool to play vote
bank politics.
AFFIRMATIVE ACTION
But then there is the view that there is need
to abandon quotas and substitute it with a
time-bound affirmative action programme.
To give Dalits or OBCs or even Muslims the
opportunities that they are justly entitled to,
it is necessary to create alternative programs.
While the SC and ST reservation should continue, as it will take some more decades for
them to reap the benefits, there should be no
more addition to the quotas.
New sections like
Gujjars, Patels,
Brahmins and other forward classes
demanding quotas should be firmly told that

32

October 15, 2015

they are only for the economically backward.


The EBCs, whichever caste they belong to
be it the upper caste or the lower castecertainly deserve some reservation.
Academics like Yogendra Yadav and
Satish Deshpande have suggested that a new
system creating a multi-layered deprivation
index should be considered. They suggest
that besides the economic criteria, it must
include others factors like education of the
parents, place of residence, present background and access to facilities, etc. It would
entail rationalizing promotions, or putting a
one-generation cap in the case of OBCs even
if Dalits and tribal categories are left untouched. There is also a demand for quotas
for transgenders.
While it may be difficult to immediately
reverse reservations, at least a beginning
should be made to assess the system. And the
sooner the political class realises this, the
better it will be. But any reform in a democracy will depend heavily on the political
will of those in power and the dominant
political parties. IL
The writer is the former political
editor of Hindustan Times

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44

HEALTH/ Dengue

Its More than


the Mosquito
INFRASTRUCTURE
PROBLEMS
Hospitals have a
tough time
accommodating the
huge number of
dengue patients

34

October 15, 2015

The outbreak shows that


when civic management
goes awry and garbage
clearance takes the
back seat, diseases will
fester. It is time our
politicians stop their blame
game and clean up their act
By Aruna Singh

N the annals of Delhis medical history,


2015 will go down as the Year of the
Dengue. The virus, transmitted by the
Aedes mosquito, has been making the
headlines for over a month now. One
hears scary stories from virtually every
corner. Visuals of desperate patients
waiting outside overcrowded city hospitals have
hogged prime time. The cases of children being
refused admission by private hospitals have dominated media discussions. Doctors and health
experts have been spelling out the dos and donts,
should one contract a persistent fever, cough, bodyachethe first sign of the body having been infected

Anil Shakya

by the much feared virus. Platelet counts of


family members, friends and colleagues have
become the topic of much discussion.
The official figures put the number of cases
at 3,194. But a Press Trust of India report
quoting a civic official talks of a record 5,471
cases this year and 25 deaths due to dengue.
The number of houses found positive for mosquito breeding stood at 1,87,691. But the statistics do not quite reflect the panic that has
gripped the city. Suddenly, everyone is asking,
and rightly so, as to why things have come to
such a pass. Has the virus mutated? Has the
dengue vector become better adapted to
Delhis weather conditions? Is the health
infrastructure of the cityread hospitalsto
blame? Or is it the civic situationstagnant
water and uncleared garbage which have provided breeding grounds for the mosquito
also responsible?

erhaps, all these factors have contributed. But there is also a political
vector involved. The root cause of the
civic and administrative failure is the lack of
coordination between the local bodies and the
state government and the latter with the government at the centre. This is the result of different political dispensations that control the
three arms of governance refusing to see eye to
eye even in a crisis.
And into this mix comes Delhis Lt
Governor, Najeeb Jung. There is no love lost
between him and Chief Minister Arvind

Kejriwal or the Aam Aadmi Party, currently in


power in the national capital.
Given all this, the predictable blame game
has already begun. But the end-sufferers of
this politicking have been the common citizens. Not just those infected by the virus but
also those who panic and do not know where
to go for treatment. Also, preventive measures
to check the spread of the virus and control the
breeding of mosquitoes have taken a hit.
Garbage clearance and fumigation of vulnerable areas have taken a hit.
In the months before the outbreak of
dengue, Delhi would well have qualified to be
the garbage and filth capital of the world. If
one ventured outside the diplomatic enclave
and the bungalows where our ministers and
parliamentarians reside, then refuse could be
seen strewn on the streets. The Prime
Ministers much touted Swachh Bharat campaign has been floundering in his own backyard. It did not help when sanitation workers
went on strike in May because they were not
paid wages. The Municipal Corporation of
Delhi (MCD) said it was strapped by a shortage of funds and blamed the state government
for not releasing monies in time. As the
garbage piled up civic experts warned of the
hazardsthey did not predict dengue but said
that the refuse would lead to health issues.
And then dengue hit.
The MCD has been crying foul again. It
says sufficient funds were not allocated by the
state government to fight or contain the

CAPITAL MESS
Garbage mounds are
a common sight in
Delhi

The root cause


of the civic and
administrative
failure is the lack
of coordination
between local
bodies and
the state
government, and
the latter with the
government at
the centre.

INDIA LEGAL October 15, 2015

35

HEALTH/ Dengue

SMOKESCREEN
FOR
INCOMPETENCE
The much-needed
fumigation work is
erratic

POLITICAL
WAR-GAMES
(From L-R) Delhi
Chief Minister Arvind
Kejriwal; Lt Governor
Najeeb Jung

spread of the epidemic. Says Mohan


Bhardwaj, head of the standing committee on
health, a common monitoring and decisionmaking body of the corporation: We were
promised `37.5 crore to fight vector borne diseases. The state government gave us `3.22
crore for all the three corporationsthe North
Delhi Municipal Corporation, South Delhi
Municipal Corporation and East Delhi Municipal Corporation. The three have so far spent
`2.98 crore. How could we manage in such
less money?
The Delhi government on its part claims
that it has given 75 percent of the total annual
amount to be disbursed under the Dengue
Malaria Control Programme (DMCP) to the

MCD. In response to a PIL, it submitted to the


Delhi High Court that `61 crore out of an
annual budget of `81 crore for DMCP was disbursed. The annual budget for fighting vector
borne diseases in 2015 was `81.52 crore. The
state government released the funds in two
instalmentsthe first instalment of 25 percent which came to `20.38 crore and second
of 50 percent, amounting to `40.76 crore.
But what was left unstated was that the
second instalment, which constitutes the substantial part of the total allocation, was
released only on September 22, much after the
epidemic broke out. Our employees have
been working without pay for three months.
We have nearly 1,500 Domestic Breeder
Photos: UNI

36

October 15, 2015

Checkers (DBCs), who check for dengue mosquitoes and larvae in households across Delhi.
We also put nearly 900 field workers who
check for malaria mosquito, on duty for
dengue this year. All of them have worked
incessantly to control dengue without salaries
this year, says Bhardwaj.
He is right about non-payment of salaries
to workers and the problems they have been
through. However, Bhardwaj errs when he
talks of the commitment of the MCD workers
and the effort they put in. Residents of Delhi
allege that the MCD has not checked the water
tanks and other stagnant water regularly,
though they have marked many dates outside
houses indicating when checks were made.
Rittika Modwel, a resident of Malviya
Nagar, Delhi, shares her typical experience:
MCD workers came to our house to check if
there were any mosquito larvae in our overhead water tank. There were. but the next time
they came they never checked if we had
removed the larvae from our tank.
She adds that the workers did not even tell
her the method to clean the tank and she had
to depend on information from the internet.
Incidentally, her house has five dates pencilled
near the main door when inspections were
supposedly carried out by the MCD.

ealth experts are agreed that the best


way to stop dengue is to prevent the
breeding of mosquito larvae. And
this can only be done through a concentrated
campaign in which public awareness and participation is of prime importance. This aspect
took a backseat amidst all the power politics
played out between the state government, the
MCD and the centre. No pamphlets were
issued underscoring the need to keep the environs clean. No messages on FM radio or TV.
Even hoardings and posters stressing the need
to keep Dilli Swacch were missing. The Delhi
governments PR had promos eulogising the
merits of the chief minister and the centre had
national building aspects in its focus.
Even when ads appeared it was how to
fight dengue and not how to prevent it. Even
that was short on information. When civil
society organisations and health activists held
a protest demonstration at Delhi Secretariat
on September 23, one of their main allega-

tions was that money was being wasted on


advertisements which had come up across the
city without much information. We see
hoardings advertising the Delhi governments
fight against dengue. But none of them inform
how one should avoid getting infected or what
to do if one suspects that one may be infected.
We demand that this money should be utilised
to treat the patients rather than advertising
about the chief minister, says Annie Raja,
general secretary, National Federation of
Indian Women, affiliated to the Communist
Party of India.
The government says the job of information dissemination lies with the local bodies.
The MCDs are responsible for prevention,
which includes awareness creation, while the
state government has to ensure treatment.
The treatment in the city is fine. It is prevention that has taken a hit, says RN Das, officer
on special duty with Delhis health minister,
Satyendra Jain.
When it comes to owning up responsibility,
the lines blur. But Delhi happens to be the
national capital. And it does not do the nation
any good if it fights a losing battle against dirt
and disease while claiming to be an emerging
global power. This should serve as a wakeup
call for everyone who has a stake in Delhi.
Remember a clean city is the first step towards
fighting diseases like dengue.
You cant blame the mosquito for civic
decay and degradation. IL

STRUGGLE FOR BASICS


Akali Dal activists demonstrate
against the failure of the Delhi
government to control dengue

INDIA LEGAL October 15, 2015

37

HEALTH/ State of Hospitals / Access Issues

No Clarity on Charity
Despite court rulings, free health care
for poor patients in private hospitals
remains contentious. Only a law
enacted by parliament can make
free treatment mandatory
By Venkatasubramanian

ILL 1980s, only a few private hospitals and charitable institutions funded by big business families or
missionaries, apart from government hospitals,
catered to the poor. A policy shift, however, enabled
the government to offer subsidies to the private sector by way of land (leased or otherwise) at nominal
rates, granting medical care the status of industry in
order to guarantee cheap credit, reduction of import duties on equipment, exemption from paying property taxes, water and electricity
charges etc. As a result, the private health industry experienced phenomenal growth, with successive governments grappling with the issue of
effective regulation of private hospitals in order to ensure meaningful
right to health for its citizens.
DEFINING JUDGEMENT
To live with dignity would take within its ambit legitimate expectations
of the citizens of the country of being provided with good environment
and health care, so noted Justice Swatanter Kumar, while writing the
judgment of the Delhi High Court in Social Jurist vs Government of NCT
of Delhi on March 22, 2007.
The judgment in this case was a defining moment in the struggle of

38

October 15, 2015

A LAND OF
PARADOXES
(Left)
Government
hospitals are
woefully short of
beds and other
infrastructure
requirements
to tackle
something like
the dengue
menace

INDIA LEGAL October 15, 2015

39

HEALTH/ State of Hospitals / Access Issues

ITS OUT IN THE OPEN


While government hospitals
offer affordable healthcare,
even in the premier hospital of
the country, AIIMS (right),
patients have to spend days
on the footpath (right) in the
absence of proper
infrastructure

According to
investigations,
some high-end
Mumbai
hospitals used
only 4 to 4.5
percent of the
10 percent
beds they had
committed to
use to treat the
poor.

40

October 15, 2015

the economically weaker sections [EWS] of


society for free treatment in the best private
hospitals in the country. The argument was
that these hospitals have availed of various concessions and privileges from the state, and
therefore, are duty-bound to provide free treatment to those who cannot afford it.
The high court found that the lease deed
and terms of the letter of allotment of land to
hospitals imposed a contractual, statutory and
public obligation on them. The court noted
that these hospitals had accepted the condition
in regard to the free patient treatment of indigent persons and accepted the same without
any reservations.
The hospitals contended before the high
court that they are super-speciality hospitals
and are not expected to treat patients free, particularly the indoor patients as the cost which
they would incur may not be financially viable
and may affect the deposits and assets of the
hospital, and the company or trust running it.
In response to this contention, the high
court held that this concept of profiteering is
foreign to social policies. The government and
authorities allotted them land in the heart of
the town at such rates to achieve the social goal
of providing best possible health facilities to
the residents of Delhi. This condition, the high
court said, is the spirit behind the statutory

rules, policies and letter of allotment.


To take one example, the high court said,
the Escorts Hospital has been making a pre-tax
profit of `27 crore every year and certainly has
come up in the city as one of the significant
super speciality hospital. If it had complied
with their obligations in a regular phased manner which they had admittedly not, at best their
profits might have reduced marginally.
In contrast, the high court had pointed to
the example of a hospital like VIMHANS,
which is a super speciality hospital relating to
neurological problems where the condition for
free treatment required them to provide free
patient treatment to 70 percent of the patients
as per the terms of the land allotment, and they
attempted their best to adhere to the condition
despite losses.
The high court was clear that both the
Escorts Hospital and the Dharamshila Hospital which contested the claim that they had
an obligation to provide free treatment, must
be compelled to adhere to the conditions
imposed, failing which the law must take its
own course including closure of these hospitals. They cannot thrive at public cost and
State expense without fulfilling the minimum
conditions imposed upon them to achieve a
greater social goal and to look after the interest
of the public at large, the high court held.

It thus held that the condition of free


patient treatment to the indigent strata of the
society shall be read and construed as 25 percent for OPD and 10 percent for IPD. The
court made it clear that this percentage of
patients will not be liable to pay any expenses
in the hospital.
In 2001, the DDA had sought a report
from 14 hospitals regarding the fulfilment of
their obligations. Only five of them responded
to the notice. According to the Public Accounts Committee report of the Lok Sabha in
2005, no action was initiated against the
defaulters; nor was any action taken to verify
the correctness of the report furnished by the
five institutions.
The Qureshi committee had concluded
that most of the charitable hospitals were no
more charitable, and that their managements
had converted them to moneymaking machines. The petition by Social Jurist was filed in
Delhi High Court in 2002, citing the Qureshi
committee report.

earch Centre vs Social Jurist and others, and


held that 25 percent OPD and 10 per cent IPD
patients have to be given treatment free of cost.
The apex court reiterated the high courts judgment but added that it would not come in the
way of the concerned hospital making its own
arrangements for meeting the treatment/medicines cost, either by meeting the cost from its
funds or resources, or by way of sponsorships
or endowments or donations.
One would expect that the Supreme Courts
September 1, 2011, order must have finally
resolved the controversy. However, activists
and authorities are still struggling to ensure
compliance of the private hospitals with the
order. In some instances, even the high court
and the Supreme Court have not been as serious as they should be in demanding and ensuring compliance.

The Delhi High


Court in a 2007
judgment held
that the private
hospitals cannot
thrive at State
expense without
fulfilling the
conditions
imposed upon
them to achieve
a greater social
goal.

APEX COURT FOR FREE TREATMENT


The Delhi High Court judgment was appealed
against by some private hospitals in the Supreme Court. The private hospitals proposed to
provide free treatment to poor patients with a
cap of up to `50,000. The Delhi Government
rejected this proposal. On September 1, 2011,
the Supreme Court bench comprising justices
RV Raveendran and AK Patnaik dismissed
appeals in Dharamshila Hospital and ResCASE OF
CONTRASTS
(Above) VIMHANS
does provide free
treatment to the
poor, despite losses,
the Delhi High Court
pointed out in a case
(Left) The court
pointed out that
Escorts profits
wouldnt
suffer if it catered to
the poor too. This
photo of the hospital
is after the Fortis
takeover
INDIA LEGAL October 15, 2015

41

HEALTH/ State of Hospitals / Access Issues

But there are several cases where subsidised


land was given to hospitals. Moolchand hospital in Delhi was given nine acres of prime land
at Lajpat Nagar in South Delhi in 1951. In 1957,
the Lahore Hospital Society was allotted five
acres of land on Pusa Road, Delhi, to construct
a charitable hospital. In Delhi alone, between
1951 and 1976, land was allotted to five different charitable hospitals on the condition that
considerable proportion of treatment would be
given to poor patients. In fact, the Land and
Development Office of Delhi had imposed conditions on some hospitals that required them
to set aside 70 per cent beds for free treatment.
Apollo Hospital was allotted 15 acres of prime land in South Delhi in 1988, for a token
rent of `1 per annum, in return for 33 per cent
of free beds. The Delhi high court is currently
seized of a petition by the widow of an EWS
patient who was denied timely treatment by
the hospital, but instead was charged a huge
fee. Seema Chauhans husband was admitted
to Apollo Hospital on April 27, 2013. The Delhi
government told the high court that on that
date, 28 beds in ICU of Apollo hospital were
occupied by EWS category instead of quota of
12 beds for government of NCT of Delhi.
Seema, however, contested this claim and has
sought the refund of fee paid by her to the hospital. The case is still pending.

SEEKING LEGAL
LIFELINE
(From top) Moolchand
and St Stephens
Hospital got a reprieve
from the Delhi High Court
in 2013, on the issue of
free treatment to
poor patients

42

October 15, 2015

On March 13, 2013, the Delhi High Court


dismissed a petition by Social Jurist seeking to
initiate contempt proceedings against three
hospitals, namely, Moolchand Khairati Lal
Trust Hospital, St Stephens Hospital and Rajiv
Gandhi Cancer Institute and Research Centre,
alleging that they disobeyed the high courts
March 22, 2007 judgment. It was alleged by
the petitioner in this case that on November 7,
2008, the Delhi government had named 37
private hospitals which were obliged to provide
free treatment to the poor patients and these
three hospitals were included in that list; yet
these three were not providing free tests and
treatment to the poor patients. The high court,
however, dismissed the petition on the ground
that the three hospitals were not parties to the
petition filed by the Social Jurist which was
dealt with in the March 22, 2007 judgment.

LEGAL SETBACKS
On April 28, 2014, the Delhi High Court through another judgment, disappointed those
who had high expectations of the applicability
of the March 22, 2007 high court judgment to
the entire country, especially after the Supreme
Court dismissed appeals against it in 2011. The
high court held that the main judgment in
2007 did not decide, as a matter of law, that all
allotments of lands made on concessional
basis, regardless of whether the conditions in
lease/allotment contained requirements of free
treatment to economically weaker sections,
were to be subjected to the same treatment and
directions. This would mean that for applying
the March 22, 2007 judgment to any hospital,
it has to be identical or similar to the 20 hospitals which were parties to that case.
Further, the high court held that it was not
enough if the hospitals were beneficiaries of
allotment or leases at concessional rates; both

the allotment letter and the lease deed must


contain an express requirement to provide free
medical facilities. In the absence of such requirement, neither the central government nor the
Delhi government had the power to issue
directions in that regard, the high court held.
The high court also held that the state can issue
such directions only with legislative backing.
Thus four hospitals, namely, Mool Chand Khairati Ram Trust, St Stephens Hospital, Sitaram
Bhartia Institute of Science and Research and
Foundation for Applied Research in Cancer,
who were the petitioners in the case, were
exempted from the obligation to provide free
medical treatment.
On December 5, 2014, another bench of the
Supreme Court dismissed an appeal filed by
Jharkhand Human Rights Conference against
a decision of the Jharkhand High Court dismissing its public interest litigation seeking
directions to provide free treatment of the poor
in private hospitals allotted land free or at concessional rates.
Although the Jharkhand High Courts dismissal of the PIL conflicts with the Supreme
Courts September 1, 2011 order, the Supreme
Court bench comprising justices HL Dattu and
AK Sikri said that since these were private hospitals, they were under no obligation to provide
such services to the poor. Justice Sikri, as
reported in Livemint, added that if these hospitals were companies, under the new Companies Act of 2013, the court could direct them to
spend funds for corporate social responsibility
on economically weaker sections of the society.
THE MUMBAI STORY
According to a study conducted in Mumbai in
2013, there were about 80 state-aided charitable hospitals registered with the Charity Commission in Mumbai. Data on bed strength for
about 60 of them showed they constituted
more than 8,000 beds. The largest 25 among
these hospitals accounted for about 6,400
beds. Overall, it meant that about 800 beds
were available for the poor for free and another
800 beds at subsidised rates.
Around 14 state-aided charitable hospitals,
including Lilavati, Breach Candy, Jaslok,
Bombay, Hiranandani and Saifee Hospitals,
had appealed to the Charity Commissioner
stating that they were currently overspending

HEALTH AS A
LUXURY PRODUCT
Lilavati Hospital
(above) and
Hiranandani
Hospital (left) in
Mumbai typify
luxurious
healthcare for
the rich

in order to treat the poor and were incurring


losses. The Charity Commissioner allowed four
such hospitalsJaslok, Hiranandani, Breach
Candy and Lilavatito stop treating poor
patients temporarily. Investigations that followed the exemption indicated that Jaslok,
Breach Candy and Bombay Hospital used only
4 to 4.5 percent of the 10 percent beds they had
committed to use to treat the poor. A survey in
2007 showed that prominent notices about
such schemes were often absent in hospitals
and poor people remained unaware.
Provisions such as free treatment can only
be in addition to and not a substitute for a
strong public health system, and that the noncompliance of the hospitals even to the legally
bound provisions highlights the urgent need
for a more robust regulatory mechanism, created through a law enacted by parliament. IL
INDIA LEGAL October 15, 2015

43

HEALTH/ Private Hospitals/ Experience

Private
Cannot be
Public

Health care at well-equipped,


corporatized hospitals is strictly the
prerogative of those who can afford it.
The poor are not encouraged to seek
treatment at such facilities
By Ajith Pillai

44

October 15, 2015

OW difficult is it for
patients to get admission in a private hospital
in the event of an emergency? If they have the
financial muscle, then it
couldnt be easier. If not,
then it could turn out to be much more than an
uphill task. That is the bald truth as it stands.
Money is the bottom line that inspires almost all
swank hospitals. It is the language that their
managements understand.
Of course, if you formally put the question to
any private hospital. it will point out that the
commitment to serve any patient in an emergency, whatever his/her financial situation is its
paramount priority and in keeping with its altruistic philosophy. It will however also be underlined that there is no legal obligation for private
sector hospitals to treat economically challenged
patients although there have been some court
orders to the contrary.
For example, in Delhi, a high court ruling of
March 2007 set down that 10 percent beds and
25 percent treatment in outpatient departments
(OPDs) should be kept aside for indigent/poor

patients. The guidelines drawn up following


the court ruling made it explicit that poor
patients should not be charged for admission,
bed, medication, treatment, surgery facility,
nursing facility, consumables and non-consumables etc. But this has been challenged on
various counts, leaving the question of
whether private hospitals are obliged to offer
their services to the poor, open ended.
But despite that, since the guidelines are in
place one would think that it would operate in
any public emergency, like the recent outbreak
of dengue in the national capital. That it did
not is a clear indication that the laws are being
brazenly flouted.
What brought the issue of private hospitals
and their callous response to public emergencies was the death of a seven-year-old boy who
was refused admission by five private hospitals. He finally succumbed to dengue, more
due to medical apathy and negligence. His
distraught parents later committed suicide by
jumping off the fourth floor of the building
they lived in.
The incident sparked off reactions at several levels. The Delhi government ordered a
ministerial inquiry. Chief Minister Arvind
Kejriwal told the media that he was considering calling a special session of the assembly to
pass a law that would hand severe punish-

In Delhi, a high court ruling of March 2007 set


down that 10 percent beds and 25 percent
treatment in OPDs should be kept aside
for indigent/poor patients.
ments to private hospitals that turn away
patients. On September 21, a division bench of
the Delhi High Court, while admitting a PIL,
reportedly observed that all hospitalsboth
private and publicshould be directed not to
refuse any patients on account of monetary
conditions or any other reason and in case of
misconduct of hospitals or refusal to admit
patients, heavy penalty must be imposed.
So, despite the recent dengue controversy
and bad press, one can safely conclude from
the courts observations that the problem of
private hospitals and their response to public
emergencies and treatment of poor patients
still needs to be adequately addressed.
PERSONAL EXPERIENCE
Last year I was down with dengue and following a respiratory complication was rushed to a
private hospital. But before being allowed
entry into the hallowed and antiseptic portals
of its ICU a deposit of `75,000 was demanded.
It was unstated but was made amply clear

FOR THE
PRIVILEGED
Private hospitals
remain in the reach
of only those who
can afford
the treatment

INDIA LEGAL October 15, 2015

45

HEALTH/ Private Hospitals/ Experience

Very few would go to court over small lapses.


Most patients are thankful that they are alive and
well, to bicker over details. But milking money
from patients is the name of the game.

HEALTH IS
WEALTH
Many swank private
hospitals are
money-making
shops

46

October 15, 2015

that the money was a prerequisite for any


treatment to kick in. Luckily, plastic money
came to the rescue late in the night. Two days
of intensive care and a battery of tests (many
of them a doctor friend later told me were
uncalled for) saw me out of the woods.
My insistence that I be discharged at the
earliest obviously was persuasive and convincing enough but I was, nevertheless, left with a
bill that broke the ` 1 lakh barrier. One entry
in it under the head consultation fee was a
bit of a bother though. A family friend, who
works in the same hospital, had called on me
during visiting hours to enquire if I needed
books or magazines to cheer me up. His was
purely a social call but he was listed among the
doctors I had apparently consulted and would
have to pay for.
Very few would go to court over such a
small lapse. Most patients like me are thankful
that they are alive and well to bicker over
details. But I am told that milking money from

patients and their relatives is the name of the


game in several private hospitals. And why
should anyone expect more from them? In the
main, many of these institutions, whatever
their pretensions, are healing shops where
profit margins matter. Any bed thus allotted to
a free patient would reflect poorly in the balance books. This explains why there is great
reluctance to admit anyone under the 10 percent free quota.
INSIDE STORIES
Most doctors do not like to talk about the
inner workings of private concerns that pay
members of the profession handsomely. But
there have been forthright voices. Dr Samiran
Nundy is a noted gastrointestinal surgeon and
medical academic. He articulated in an interview to The Times of India last year the
predicament that doctors find themselves in
when they sign up with the corporate healthcare sector:
If you are paid more than you think you
are worth, you are in big trouble. Working in
the corporate sector is a nightmare. They offer
crores of rupees as salary. But the small print
in the contract says the salary will be reviewed
in six months to see if the doctor is able to
bring in the money expected. I have heard of
people whose salaries went
down by 30 per cent after such
reviews and some were even
forced to leave because they
could not deliver the profits
expected. They have financial
experts who ask doctors to justify the salaries they are being
paid, especially if the revenue
they have generated for the hospital from investigations and
operations falls short of the targets set for them. There are even
places where one-third of the
doctors salary is taken away for
marketing and they are forced to
give talks to GPs and canvass
them to send patients.
Doctor friends have told me
about how most private establishments formulate a bed-topatient ratio. This is a ballpark
calculation on when occupancy

of a bed becomes profitable. Very often


patients are kept in ICUs long after they can
be shifted out so that the bed that they are
occupying yields returns. They are apparently
kept in the recovering yet serious category.
Similarly, patients are kept on life support systems endlessly when chances of their survival
are in medical terms, zero. What drives such
unprofessional decisions are cold financial
calculations that have to be adhered to by
the doctors.
Dr Nundy was candid when he said in his
interview that most doctors have to dance to
the tune of the managements. It is all very
well for an established practitioner like me to
pontificate. I am established and I was privileged as I came to the private sector after 21
years in AIIMS. What about young doctors
who are starting out? What can they do? The
corporate hospitals are the dominant employers. This is happening in top hospitals. No
doctor likes this, but they have no choice.
Last year, when David Berger, an
Australian doctor, wrote in the British Medical
Journal (BMJ) about his experience of working in a private hospital in India and the rampant corruption that plagues the healthcare
system in this country, it drew two extreme
reactions. One was that there were of course a
few bad eggs but in the main all was well. The
other was that large-scale exploitation of
patients was a reality which the government as
well doctors must accept.
Some of Dr Bergers observations were
quite revealing. He pointed out that the Indian
healthcare system was an inequitable one and
amongst the most privatised in the world.
He says this was thanks to the World Bank
backed policy introduced in the 1990s which
reduced public financing for healthcare so
as to encourage the private sector.
As a result, he noted, you now have a situation where latest procedures and equipment
were available for the rich while the overworked government health system was what
serves the vast majority.
That government-run public hospitals are
poorly equipped, unhygienic and over-crowded has been over the years the focus of much
media attention. Nothing much has been done
to improve the conditions in such establishments which are the only ones the poor can

turn to. The government inaction is therefore


inexplicable and needs to be corrected.
But what of private hospitals? It is time
that the healing shops are recognized for what
they are. Strong regulation and reservation of
beds for the underclass can only work if there
is persistent audit and monitoring. In the
absence of that, most poor patients who are
rushed in an emergency to a swank five star
hospital will be turned back unless they have
political or bureaucratic backing. That is the
reality. Rather than depend on the private sector it is time that the government strengthens
public health care. As for dengue it would
require a civic clean-up drive to contain mosquitoes more than medical intervention alone.
But then dengue is not the only health problem that confronts us.
I will conclude with this shocking but
rather odd and revealing incident. A few years
ago a young photographer colleague was troubled by a burning sensation in the chest. His
family panicked and rushed him to a private
hospital in East Delhi where he was kept
under observation. A surgery, he was told, may
have to be conducted to rectify a cardiac condition he was possibly suffering from. Luckily,
he had the presence of mind to seek a second
opinion from a government doctor who prescribed him an antacid tablet for his
chest pain!
I am happy to report that he is alive and
well and so far has had no reason to consult
a cardiologist. IL

PAINFUL WAIT
Patients outside a
goverrnment
hospital. It
sometimes takes
days for a bed
to be free

It is time that the


healing shops
are recognized
for what they are.
Strong regulation
and reservation
of beds for the
underclass can
only work if there
is persistent
audit and
monitoring.

INDIA LEGAL October 15, 2015

47

SOCIETY/ Domestic Helps

Slaving it
out in Delhi

Exploitation of the
poor is best
exemplified in
houses alloted to
bureaucrats. They
sub-let the servants
quarter to a family
on the condition that
its members do
household work for
free. Slave labor is
alive and well
By Bikram Vohra

Illustrations: Anthony Lawrence

48

October 15, 2015

HIS is a crazy, out of synch


article and unless you are
prepared to humor me
until I can convert you to a
state of mild suspicion that
there is a socio-economic
point (see I used a buzz
phrase), dont go further.
There is slavery in New Delhi.
I chanced upon a 35-year-old man who
works as a cleaner and lives in New Moti
Bagh in our capital, his residence being the
servant quarters of a bureaucrat living in a
government house. As a quid pro quo, his
wife works ten hours a day as a cook in the
masters house without getting a salary.
Hold this thought.
I did. I grasped in and while I am not
naive enough to pretend that exploitation of
the poor is exaggerated, I do believe fervently
that those in power, bestowed upon them by
the government, have no right to misuse
their privileges and perks.
That space is not yours to give. You do not
own it. It is loaned to you and you have no
business to sub-let it. What qualitative difference is there between that woman and the
slaves being forced into labor in Charleston?
If there is no salary, it is slavery.
SLAVERY GOES ON
Two coincidences occurred in the same week
recently. The first was an expose in the UK
indicting Britains shameful past of owning
slaves, a fact that it has managed to keep
under the covers as the world indicts the confederate states across the pond. Even Prime
Minister David Camerons distant relative
owned human beings. As did a sizeable number of lords, viscounts and titled peers. It is a
testament to the English ability to rewrite
history to their advantage that for nearly 150
years, their nation has never been associated
in the global mind with organized slavery.
Yet, these disclosures come as a discomfiting
recognition of this trafficking.
The second epiphany came in the form of
a film called I am Slave, based on a true story.
At the end of this heartrending story of a
woman made to work for free in London, comes the disclosure that an estimated 50,000
slaves were alive, not well and surviving in

the City of London. Behind the trellis fences,


the walls and hedgerows of the rich and powerful, enslaved labor was a given.
HIGH ABUSE
Take our own capital. Even in some 4,800
houses in bureaucratic Delhi, there are quarters (imagine their state) and a survey done
honestly would show at least a 50 percent
abuse factor. Add up government housing in
toto and you are looking at more than 65,000
units. At least 40,000 units are in Category I,
II and III. A batch of 4,500 units was sanctioned five years ago, but is still to be completed. The total number of Delhi government employees is conservatively estimated
at two lakh.
There are three elements that go into
making the assumption that government servants exploit the poor shamelessly. One,
there is no respect for domestic help in
Indias social hierarchy. Two, the mindset is
such that there is not a scintilla of guilt over
the exploitation. Three, there is comfort in
numbers and since everyone is doing it, the
quid pro quo is comfortable to live with.
After all, the ungrateful, unwashed minions
are getting a place to stay, arent they?
On the downside, doing a little bit of legwork is not only fraught with danger but

Slaves are
people who
work for free.
Who are in no
position to fight
back because
they are
bought but not
paid for. By
law, these men
and women
and their
children who
toil for gratis
are victims of
trafficking.

INDIA LEGAL October 15, 2015

49

SOCIETY/ Domestic Helps

(iii) In Supplementary Rule 317-B-20,


(a) for sub-rule (1), the following sub-rules
shall be substituted, namely:(1) No other shall share the residence
allotted to him or any of the out-houses,
garages and stables appurtenant thereto
except with his family and immediate relations.
Clause 1A makes for a good defense.
(1A) The servant quarters, out-houses,
garages and stables may be used only for the
bonafide purposes including residence of the
servants of the allottee or for such other purposes as may be permitted by the Director of
Estates.

You are stymied in your research by a quivering


fear in those you approach for quotes. They will
lose the roof over their heads and fighting the
powerful is a non-starter.
you are stymied in your research by a quivering fear in those you approach for quotes.
They will lose the roof over their heads and
fighting the powerful is a non-starter. They
shy away from me with alacrity. And I dont
blame them.
RULES FLOUTED
The rules in allotment of government accommodation are clear, so clear they can be flouted with impunity. In Supplementary Rule
317-B-6 of Allotment of Government Residences (General Pool in Delhi) Amendment
Rules, after sub-rule (4), the following subrule shall be inserted, namely:(5) Every officer shall along with an
application under sub-rule (1), submit an
undertaking with a declaration that he shall
not sublet a residence allotted to him or any
portion thereof or any of the out-houses,
garages or stable appurtenant thereto, after
acceptance of the same.

50

October 15, 2015

WHAT A LIFE
Hello, Mr Director of Estates, do you have
any clue whats going on? The operative word
is bona fide and slave quarters are not bona
fide. On this canvas, let us talk to a 54-yearold dhobi who lives in the quarters at the
back of a very senior luminarys government
bungalow. He has been there for well over 20
years through a line of predecessors. His current master and his extended family imperiously give him an average of 100 items a
day to wash and starch. If they are not spotless, he gets reamed for incompetence.
With a sigh of resignation he adds: They
dont even pay for the soap.
It is such a heartbreaking sentence that
seething helplessly on hearing it seems a selfindulgence. The gardener is free and so is the
sweeper. One big, happy family.
I am made to swear I will not ever mention who is his sahib is or else his whole
family will be destroyed and the rancid carrot
of a job for his son out there in the distant
future will be pulled back. He immediately
regrets having shared the confidence with me
and calls several times in the week I am in
Delhi to seek reassurance.
That is the problem with such a story. You
will destroy the weak ones to set up the big
fish and its not worth the sacrifice because
the big fish are sharks and they will get away
because they are all in this gigantic conspiracy together.
FAMILY ROPED IN
I speak to several others by putting on a dis-

Empty promises
T

he very same frontline in Indias


bureaucracy that so often exploits its
domestic workers and misuses its office
staff for personal work now cheerfully
calls for a fresh amendment to the
archaic Minimum Wage Act of 1984.
Since then, there has been a depreciation of some 70 times.
In this category you could place
nearly 90 million Indians being taken for
a ride. Between child workers, parttimers, cleaners and vendors, the sector
is so disorganized that there is no system in place to protect them.
The Modi government has reportedly
called for a minimum monthly salary of
`9,000 and 15 days paid leave a year. It
is a start but since many domestic workers are part-timers, there is no hourly
rate in this one exposure of largesse,
seeing as how after the announcement,
there has been no further movement.
But it sounded good. That there was
no date for implementation speaks volumes for the intent. To ensure that it will
have a broken wing even before it takes
off, there is no indication how this decision will be monitored and what penalties will be imposed on those who
ignore it, that lot being on at least a
healthy plus side of 90 percent of those
who hire domestic help.
Can you truly see this happening
when pays are docked for a half-amorning missing and screams rent the
air for an extra egg eaten or the memsahib shrieks blue murder because the
driver didnt clean the car.
As for the crude language and tone
used, thats for gratis.

mal charade that since they are getting free space, it is understandable.
The fact that the wife who cooks and all
her tribe can slave (I will repeat that word
every opportunity I get) 15 hours and face
scoldings at random is par for the course.
The husband, who works elsewhere, can
come home and be arbitrarily co-opted to
run errands, do the shopping, come to help in
case there are guests for dinner.
After the London scandal broke, Special
Services upped their checks. In Delhi, there
is no such movement. Who will walk into the
house of an MP or a minister, a judicial
majesty or a bureaucrat and take the side of
the slave?
As the coincidences mounted, I happened
to switch on the white noise that serves as
news on TV. And there was the Prime
Minister Narendra Modi, as eloquent as
Marcus Antonius, his oratory sweeping over
the crowds like an intellectual khamsin.
He spoke of his adivasi brothers and his
dalit brothers and other sundry brothers and
how dear they were to his heart and I
thought, okay, youve got it, Prime Minister,
most of these slaves are from the so-called
lower castes or whatever label they go by
these days. Go get them.
TIME FOR REALITY CHECK
Consequently, lets start at home. In the capital. Do a spot check of 50 VIP homes and see
if they keep slaves. The home ministry should
order it, a sting operation.
Slaves are people who work for free. Who
are in no position to fight back because they
are bought but not paid for. By law, these
men and women and their children who toil
for gratis are victims of trafficking.
In one house, the son returns from school
and washes the cars. In another, the daughter
sweeps the garden. In the third, the office
peon does the memsahibs shopping and
comes home after office to serve as a domestic. What price the big talk if those who make
the laws break the laws.

That space is
not yours to
give. You do
not own it.
What
qualitative
difference is
there between
that woman
and the slaves
being forced
into labor in
Charleston?

PS: The author is arrogantly certain that this


report will be laughed off and ignored
because it cuts too close to the bone and no
one really cares enough. IL
INDIA LEGAL October 15, 2015

51

BOOKS/ India The Crucial Years/ Extracts

Troubled Times:
This seems to be the season for former intelligence chiefs to pen their memoirs. A few
months ago, AS Dulat, who headed the Research and Analysis Wing (R&AW), raised
several eyebrows when his book of revelations: Kashmir The Vajpayee Years hit the
stands. Now, TV Rajeswar, who was the
director of the Intelligence Bureau (IB) from
1980 to 1983 has joined the writers club
with his disclosures and insider tales.
The former IB chief rewinds to his days in
the IB from 1962 to 1983. In doing so, he

FIGHTING FOR
RIGHTS
George Fernandes,
who opposed the
Emergency, was
arrested in June
1976. Incidentally,
IB had no clue
about the
Emergency before
it was declared

52

October 15, 2015

traverses a sensitive and turbulent political


topography that includes Indira Gandhis
tenure as prime minister, the Emergency,
the Punjab militancy crisis and what have
you. As Indiras trusted aide, Rajeswar was
the veritable fly on the wall, privy to various
meetings, secret parleys and intrigues.
As he admitted in a recent TV interview,
the 89-year-old Rajeswar did not rely only
on his memory to revisit history as he saw it
unfold. According to him, he meticulously
maintained a daily diary in which he detailed

A Rewind
what transpired, who he met and what he
observed. He was apparently very thorough
on what he entered in his personal journal.
I would write it down once I came home
even if it was late in the night, he revealed to
an interviewer.
His labors have now been distilled into a
283-page book published by HarperCollins.
India The Crucial Years is more than just a
chronology of events. The book offers an
insight into the decisive moments of the
1970s and the 1980s in a forthright and

objective manner. Though he was a favorite


of Indira Gandhi, and is open in his admiration of her prime ministership, Rajeswar
does not hesitate in also being critical of her
several moves and decisions. The Padma
awardee also touches on the dangers of political authoritarianism.
India Legal presents select excerpts from
India The Crucial Years. Here is a peep
into contemporary history through the bifocal of one of Indias better informed intelligence chiefs.

IB UNAWARE OF EMERGENCY
And then on the night of 25 June 1975,
Emergency was declared. In arriving at the
decision, Mrs Gandhi was assisted by a small
group of advisors, including West Bengal Chief
Minister Siddhartha Shankar Ray, who drafted
a letter for President Fakhruddin Ali Ahmed to
issue the proclamation as national security was
being threatened by internal disturbances. A
few minutes before midnight, the president
signed the proposal, sent to him without discussion with the Union cabinet, which learnt of
it and ratified it the next morning.
The IB, too, was equally surprised when the
Emergency was declared and thousands of
protest and strike leaders were arrested around
the country. As the senior-most joint director
next only to the DIB, I was dealing with matters related to all the important political parties
and communal organizations. At no stage was
the IB asked to prepare an assessment of the
prevailing political situation or to give suggestions regarding the line of action that could be
taken. This was made clear in the deposition of
Atma Jayayram, who was DIB till August 1975,
before the Shah Commission, which was
appointed in 1977 to look into the excesses of
the Emergency.

The lists of people to be arrested were compiled at the PMs house with the help of few
handpicked political activists, and instructions
for arrests were passed on telephonically.
Some chief ministers were sent for
overnight by special planes and the lists handed over to them. By August 1975, the total
number of people arrested in the country stood
91,871. In subsequent weeks, 48,606 were
released. In the last week of November

THROTTLING
DEMOCRACY
The then prime
minister Indira
Gandhi declaring
Emergency on June
25, 1975

INDIA LEGAL October 15, 2015

53

BOOKS/ India The Crucial Years/ Extracts

VOTARIES OF
EMERGENCY
West Bengal CM
Siddhartha Shankar
Ray (L) played a
pivotal role in
persuading Indira
Gandhi to impose
Emergency; RSS
chief Balasaheb
Deoras (R) is said to
have overtly
conveyed his support
for Emergency to
Indira Gandhi

FOND MEMORIES?
Indira Gandhi during
her visit to Itanagar
when the author was
LG of Arunachal
Pradesh

54

October 15, 2015

1975, the figure stood at 43,265.

RSS SUPPORTED EMERGENCY


The Rashtriya Swayamsevak Sangh (RSS), a
right-wing Hindu nationalist organization, was
banned in the wake of the Emergency. But its
chief, Balasaheb Deoras, quietly established
link with the PMs house and expressed strong
support to several steps taken to enforce order
and discipline in the country. Sanjay Gandhis
concerted drive to enforce family planning,
particularly among Muslims, had earned
Deorass approbation.
A senior IB officer knew some people in the
higher echelons of the RSS and had some
meetings with them, including Deoras. Deoras
was keen to meet Mrs Gandhi and Sanjay, but
this was not possible as Mrs Gandhi did not
want to be dubbed as an RSS sympathizer. The

organization had specifically conveyed its support to the Congress in the post-Emergency
elections.
These attitudes on the part of political parties and personalities show that authoritarianism may very well take root and stay on undisturbed in this country for a certain period, and
political parties and personalities will adjust
their attitudes to suit the new situation and the
new rulers. Moral issues will then be thrown
overboard, and only the question of survival
and future prospects will become the overriding considerations for most parties and people.
If only Mrs Gandhi had announced elections in
February/March 1976 or even in September/October, some of the political parties and
influential personalities who had been hounded by her would have stood by her and she
would have had a bright chance of coming back
to power.
Towards the end of 1976, the idea of the
presidential form of government to replace the
parliamentary system, with a more powerful
directly elected executive, took shape. The idea
originated from the PMs house, and Bansi Lal
was its most ardent supporter. In the Congress,
DK Barooahthe party president remembered for his sycophantic India is Indira
proclamationand AR Antulay, a general secretary of the party, used to periodically meet in
Om Mehtas room in the Parliament House
and discuss the various possibilities. Mrs
Gandhi was unable to make up her mind either
way, but Sanjay and Bansi Lal were determined
to push the change through. There was apparently some discussion on the subject during
Mrs Gandhis visit to Mauritius in December
1976, with Defence Minister Bansi Lal being a
member of the PMs party. Soon after their
return from Mauritius, the UP Congress
Committee met in a session. Mrs Gandhi,
Sanjay and Bansi Lal had visited UP. While
Mrs Gandhi was in Rae Bareli, Bansi Lal asked
the UPCC to pass a resolution recommending
the presidential form of government.
In the meeting, some members wanted to
know whether the proposal had the PMs blessings, and they were told that it was so and that
Sanjay Gandhi desired that the resolution be
passed immediately. Mrs Gandhi was faced
with a fait accompli, but she made no comments on the resolution or the proceedings of

the UPCC. Eventually, however, the idea was given up


as impractical.
The IB once again conducted a detailed review and
assessment of the Emergency in December 1976. It
was the IBs firm view that
the negative aspects of the
Emergency were increasing
day by day, and if a political
solution was delayed any
further, there might be serious law and order problems
in the country and Mrs
Gandhis life could be in
danger. The opposition parties were in disarray, their leaders in jail, and it
might take some time for them to organize
themselves after their release. The elections
should be announced within a month of their
release and the abrogation of Emergencyso
went the IBs recommendations.
There was an influential section around
Mrs Gandhi which opposed the holding of
elections, and Sanjay Gandhi was one of them.
However, this time, Mrs Gandhi overruled
him, or rather convinced him of the need to
avoid postponing things further and thereby
inviting a big disaster.
Once Mrs Gandhi announced her decision
to call elections, the political prisoners were
released. Suddenly the situation in the country
underwent an electrifying change. All the pent
up fury against the excesses of Emergency
burst forth, and the opposition leaders became
national heroes overnight.

ESPIONAGE AND COUNTERINTELLIGENCE


India is a happy hunting ground for intelligence agencies from all over the world, particularly the western ones, the CIA being the most
important of them. There was often coordination between the CIA and the agencies of some
of the Western countries. The British were least
interested since they had normal sources of
information, with which they were quite satisfied. In any case, they did not have any aggressive policies to impose or sell in India.
The East Bloc headed by the KGB of Soviet
Russia was mostly working in unison. The

Czech agency was particularly close to the


KGB. The East Bloc, however, didnt have
much to offer to its contacts and agents either
by way of cash or goodsunlike the Western
agencies, which consequently had a greater
advantage. Some of the intelligence operatives
of the East Bloc countries were also known to
resort to devious tactics deliberately. For example, an East Bloc operative would visit a well
known correspondents residence after taking a
tortuously circuitous route. Our suspicion was
that such ploys were the result of routine intelligence craft or they deliberately wanted to create a hush-hush atmosphere to impress their
superiors or associates who often travelled with
them but remained in the car.
It was tragic to see even senior politicians,
both in the opposition parties and the ruling
party, some of whom had also held cabinet
positions in the past, attending lunches and
dinners hosted by junior officials of Western
embassies of the rank of counsellors and even
first secretaries. As for the journalists, they
were a law unto themselves, and some of them
had no compunction about excepting bottles of
liquor in return for periodic assessments in
writing, which they regularly gave to their foreign contacts.
In the case of politicians who were invited
for exclusive lunches and dinners, a good
two-hour stay would give the hosting diplomat
vast inside information on various developments in the country. The politicians were usually very vocal and did not hesitate to speak
frankly and openly with foreigners. The left-

TOUGH CALL
Bansi Lal (L) and Sanjay
Gandhi wanted India to
have a presidential form of
government in 1976

INDIA LEGAL October 15, 2015

55

BOOKS/ India The Crucial Years/ Extracts

THE CRUCIAL MEN


(L-R) DK Barooah, the then
Congress president;
AR Antulay, who was a
general secretary of the
party; Henry Kissinger

ist elements in the ruling party were the


favourite invitees, as the East Bloc embassies
were able to get as much information out of
them as their western counterparts. Some of
the right wing politicians did not have any hesitation in attending the exclusive parties hosted
by the East Bloc diplomats either.
The foreign diplomats were very particular
about joining the various Delhi clubs, such as
the Golf Club, the Gymkhana Club, the Flying
Club and so on. The acquaintances and friendships made with officers and servicemen at
these places were developed persistently with
carefully contrived casual meetings, followed
by gifts, trips for their children, and so on.
Unlike politicians, officers attending parties or
exclusive meals and meetings with the foreign
diplomats were expected, as per the standing
instructions, to report these and also the substance of the discussions held. These instructions were mostly ignored, and the secretaries
in charge of the ministries also generally
turned a blind eye to such occurrences.

POLITICAL CONTACTS
Some foreign intelligence agencies resorted to
lobbying certain parties, groups and candidates for a certain period, with the long-term
objective of building permanent contacts, who
were often handed over to successor operatives
when their own postings came to an end. In
1981, an East Bloc country extended considerable support through one of its satellite countries to certain people who organized a political

56

October 15, 2015

jamboree in a metropolitan
city. In early 1982, a prominent Western country actively promoted a regional
party, which came to power
in the state soon after. The
same Western country was
generally known to support
most of the regional parties.
Among the politicians,
there were a few MPs who
were regularly attending
exclusive lunches and dinners hosted by the first secretaries of Western embassies who were in charge
of political affairs and intelligence gathering. The IB
had compiled a list of such people and given it
to the government with the suggestion to discreetly caution them. In one particular instance, an ex-MP had started functioning more
or less as a regular source for a Western embassy and was quite blatantly cheeky about his
meetings. He was advised to stop his activities.
Later, the diplomats concerned became alert,
and the politician himself got quite scared. He
begged to be let off the hook and said he was
severing ties with all his contacts and leaving
Delhi for good.
Talking about politicians, it may be recalled
that Henry Kissinger, who served as national
security adviser and later as secretary of state in
the administrations of US presidents Richard
Nixon and Gerald Ford, once referred to a high
level contact he had in Indira Gandhi government. It could refer to a senior civil servant or
even a minister. It was generally believed that a
senior cabinet minister who had held that position for many years was the suspect. This minister was the contact man for a senior correspondent of the two leading agencies. My own
theory is that the guilty person was not this
minister but someone else. In this connection,
I would add that the allegation of Seymour
Hersh, an American investigative journalist
and writer, that Morarji Desai was a CIA agent
was absolute nonsense as there was nothing
against him in this direction at any time.

JOURNALISTS
As for journalists, there was a correspondent

who some years later become an editor of a


paper published from Delhi, who was then
working for widely circulated English daily
from Delhi. In 1980, the correspondent had
periodical secret meetings with an East Bloc
diplomat and was also seen handing out some
papers on some occasions. This particular correspondent was quite close to a high dignitary,
and I had told people concerned to be wary of
him. It was, however, of no avail since the correspondent continued to be the favourite.
There was another correspondent who was
the chief of bureau of one of the English dailies.
He became a popular figure on television in
later years. He was in secret contact with a
Western diplomat, even though he was supposed to be a leftist and a progressive. The correspondent ultimately got the message and put
an end to the secret meetings.
There was another correspondent representing a Western newspaper, but his main
work consisted of liaison work by striking
friendships with ministers and officers. The
correspondent often threw big parties and
made it a point to invite foreign and Indian
diplomats and some MPs. The foreign diplomats always took liquor bottles with them,
which were enough for the next party, and thus
it went on and on.

CIVIL SERVANTS
Among the civil servants, it was usually the big
fry, who had all the comforts and facilities in
life, who permitted themselves to be used by

foreign agencies, either by negligence or


design, mostly the latter, due to various
long-term calculations. A stenographer in the
MEA might plan his future, such as his childrens higher education, and wait for a foreign
posting and quietly work out his job opportunity in the host country and then resign. In a
few desperate cases, certain low and middlelevel officers deliberately got in touch with foreign missions for pecuniary gains. But certain
senior officers did it out of over-ambition, such
as settling their children in multinational companies abroad, getting themselves assignments
after retirement in various international agencies, and so on.
There was a case of a very senior officer who
was considered competent during his days of
power and glory. He had, however, no compunction about compromising his conscience
on certain important national issues. In one
important policy matter, he compromised the
position of India in the face of pressure from
Western countries.
After his retirement, he was chosen for a
top assignment in a Western country, but the
circumstances vastly changed by the time the
assignment could be finalized. When the case
was given a fresh look, some unpleasant information was thrown up, such as his close contacts with the wrong people, impermissible
transactions, and so on, and eventually the proposal was shelved.
In another case, a senior officer, who considered himself a womanizer, was reckless with
his contacts with foreign diplomats and
women, utterly unmindful of the various
standing instructions of the government.
A detailed report detailing his activities and
contacts was sent up to the government. He
was arrogant enough to ask how he could be
blamed if certain women found him irresistible. He was eventually sent out of Delhi,
but no action was taken against him. All this
happened in mid-1982, and three years later
the same officer got into far more serious trouble by breaking up the family of another senior
officer. There was an enquiry into the matter.
He was placed under suspension and proceedings were drawn up for his dismissal.
This officers case is a clear example of how
certain people could never reform themselves
and could never be saved. IL

DISPELLING NOTIONS
Rajeswar says the allegation
that Morarji Desai was a CIA
agent was all humbug

India The
Crucial Years
By TV Rajeswar
Published by HarperCollins
Pages: 283; price: 599

INDIA LEGAL October 15, 2015

57

STATES/ Kerala/Munnar Strike

Whats Brewing

58

October 15, 2015

in the Hills?
In an unprecedented victory, women
tea workers in Munnar wrangled a
bonus from the Tata
management and forced the state
government to amend the Plantation
Labor Act. Is this a lesson for
Leftist trade unions in Kerala?
By Jacob George

HE mighty Tata Tea management was brought


down to its knees by the lowest rung of the corporate ladderwoman workers of Munnar, the famed hill station in Kerala known for its tea plantations. These women who get a wage of `232 a day,
meager by Kerala standards, were demanding not
just more bonus but increased dividend. The nineday strike of more than 12,000 workers of the Kannan Devan Hills
Plantation (KDHP) sent shockwaves to mighty trade unions in the
state and forced the state government to rewrite the Plantation Labor
Act (1951) and the Factories Act. The government will bring amendments to the rules in the Plantation Labor Act and the Factories Act to
solve the grievances of the plantation workers, assured Chief Minister
Oommen Chandy after a marathon discussion with representatives of
the striking estate workers.

SEAT OF
WOMEN POWER?
A Munnar tea
plantation
Furqan Faridi

POWERFUL FORCE
The strike by thousands of angry women workers virtually paralyzed
Munnar, an otherwise busy hill station, blocked road traffic and deliberately kept trade union leaders and political parties at bay. The
women loudly proclaimed that all of them had betrayed their cause and
came out with a list of prominent trade union leaders who have taken
freebies from the Tata management, which included houses and cars.
S Rajendran, a CPM MLA, was not even permitted to address the
striking workers. Mahila Congress leaders Bindu Krishna and Lathika
Subhash were driven away by angry workers. They didnt even allow
INDIA LEGAL October 15, 2015

59

STATES/ Kerala/Munnar Strike

UNITED FRONT
The strike by women
workers of Munnar tea
plantation was meticulously planned and
executed

60

October 15, 2015

the minister for SC/ST development, PK


Jayalakshmi, to sit with them.
The women accepted only two political
leadersopposition leader and former CM
VS Achuthanandan and CPI MLA ES Bijimol, who represents the neighboring Peerumade constituency.
It was surprising and even shocking to see
how the downtrodden estate workers challenged the supremacy of trade unions in the
highly labor intensive plantation sector in
Munnar. Gomathi, one of the workers who
has emerged as a prominent leader of the
striking women and a star on TV channels,
says that the union leaders have betrayed
them. We have lost trust in these leaders. We
are toiling in the estates and the company is
reaping profits, leaving us into acute poverty,
she said.
One of the reasons behind the power of
these poor women is that they are not mere
workers of Tata Estate, but its owners too.
They are shareholders of KDHP and the
strike was not just for more bonus, but for an
increased dividend. KDHP has more than
13,000 workers in its fold, mostly women.

It was, in fact, acute poverty that pushed


these women into striking. Initially, they did
not even let their men go near the strike
venue for fear that they would be purchased
by the Tata management. In Kerala, wages
for laborers are quite high and those from
West Bengal or Assam get a minimum of
`800 a day, whereas the daily wage of an
estate worker is only `232.
EXPLOITED LOT
The plantation industry in India is among
the largest private employers and is spread
across Assam, Kerala, Tamil Nadu and West
Bengal. However, the workforce here is
among the most exploited in the organized
sector. Their wages are among the lowest
when compared to other workers and their
living conditions, dismal. Most of the plantations are located in remote and isolated areas
and the illiterate workers in Kerala are mostly from neighboring Tamil Nadu with no
awareness about their rights.
Plantations also do not come under the
purview of rural development and antipoverty programs and exploitation of work-

ers is common as there is no mechanism to


monitor their welfare. Union leaders, too,
join hands with the management.
In 1951, parliament passed the
Plantations Labor Act (PLA), which was
meant to regulate the conditions of workers
in plantations. Under this law, state governments were empowered to take all feasible
steps to improve the lot of plantation workers. This law helped create conditions for
organizing the workers and led to the rise of
trade unions. However, the potential benefits
promised under PLA remain unachieved
mainly due to the ignorance of workers about
their rights.
The demand of the Munnar workers was
that bonus be hiked from the present 10 percent to 20 percent and daily wages be raised
to `500. But the management said that profits had declined and hence, they had brought
down the dividend from last years 19 percent
to the present 10 percent. The profit of
KDHP last year was `15.55 crore, whereas
this year, it was `5.02 crore.
However, Tata Global Beverages Limited,
which has 28.63 percent stake in KDHP and
which buys its tea in auctions, had a profit of
`259 crore last year. And this was the crux of
the negotiation.

It was surprising to see how the


downtrodden estate workers challenged
the supremacy of trade unions in the labor
intensive plantation sector in Munnar.

DEFT NEGOTIATION
In the reconciliation meeting in Kochi,
Oommen Chandy, Labour Minister Shibu
Baby John and KDHP managing director
Abraham Mathew faced representatives of
the tea workers, who then negotiated effectively and walked away with a fabulous settlement. In addition to the 8.33 percent
bonus already announced, they will now get
11.67 percent as ex-gratia payment. As for
their demand for a daily wage of `500 a day,
it will be declared by the month-end.
VS Achuthanandan said this was a perfect
victory for the striking women workers of
Tata Tea. These poor people are leading a
hard life for years and years. It is for the first
time that the tea workers have emerged victorious in a strike. Their wages should be
hiked and living conditions improved,
demanded VS. The demands of the tea workers were genuine and hence, the government
was determined to settle the issue in favor of

them, said Chandy.


But the settlement of the strike is not an
end in itself. KDHPs major challenge will be
hiking the daily wages of the workers. Shibu
Baby John has said that a daily wage of `500
will sound the death knell of the plantation
itself, which will be against the interests of
the workers. And what if this kind of upsurge
happens in other estates? It would be disastrous in a state like Kerala as its economy
heavily depends upon cash crops like rubber,
coffee, cardamom and tea.
However, the strike by women, meticulously planned and executed, can strike a
blow to all trade unions. Women have at last
realized their real strength. Where does that
leave the trade unions in a state where they
rule the roost? And what will the Tatas do
now? With women workers who know their
maths, it wont be easy for the management
to take them for a ride again.
There was some flavour in this brew. IL

IN FAVOR
Former CM
of Kerala VS
Achuthanandan
was allowed by
the women to
participate in
the strike

INDIA LEGAL October 15, 2015

61

STATES/ Haryana/ Poll law

Eligibility
Crisis

FAR-FETCHED
APPROACH
(Above) The new law on
educational qualifications
would have kept a
majority from contesting
panchayat polls

62

October 15, 2015

AN the state impose minimum


educational qualifications for
contesting elections? Will it
empower and encourage citizens, particularly women, or
keep them out of the democratic process? Is
it the same as disqualifying those with criminal background or those who default on payment of government dues? These are some of
the questions the Supreme Court may have
possibly deliberated on when it stayed the
Haryana governments amended rules imposing conditions on the eligibility of candidates who can contest panchayat elections.
The state government has now been forced to indefinitely postpone elections to panchayats after the apex court stay. While seeking the state governments views, the apex
court had observed that fixing minimum

The apex court


has stayed
the Haryana
Panchayati Raj
(Amendment)
Act, 2015,
which laid down
minimum
qualifications for
contesting
panchayat polls.
Does the new
law exclude a
sizeable section
of the population
from contesting?
By Vipin
Pubby in
Chandigarh
educational qualifications to contest the panchayat elections would debar 50 percent citizens from the fray.
The Haryana assembly had passed the
Haryana Panchayati Raj (Amendment) Act,
2015 on September 7. According to the amendments, general candidates must have cleared Class X, while women and Dalit candidates were required to clear Class VIII and
Class V, respectively. It also made it mandatory that candidates should not have a criminal conviction, no pending electricity bills or
loan payments and should have a working
toilet at home.
The petition, challenging the provisions
of the amended law, filed by the All India
Democratic Womens Association argued
that it rendered many candidates in the state
ineligible and was against the constitution.

The petitioner claimed that 83 per cent of


Dalit women and 71 per cent women in the
general category and 56 per cent men would
be excluded from contesting the panchayat
polls by the law and it affected fundamental
rights of those wishing to contest elections.
Attorney General Mukul Rohatgi, arguing
for the state, referred to various constitutional provisions and said making class X pass
mandatory to contest was part of a progressive law making process as the sarpanches
and panches have to perform a host of jobs
which needed a minimum qualification. He
argued that panchayats were like mini state
governments. The representatives were delegated powers of state governments and they
were empowered to take part in economic
reforms. How can that be accomplished
when officials put thumb impressions and
later dispute such impressions or say we
dont know what we signed, he pleaded.
Rohatgi also said when laws, such as barring persons having more than two kids from
contesting polls, had not been stayed in past,
then this law should also not have been
stayed. When the apex court made its clear
that it was staying the provisions of the new
law, Rohatgi said the state would rather defer
the elections and would like the Supreme Court to rule upon the new laws validity.
As per the available data, the new rules
will make at least 50 per cent of the incumbent sarpanches and 70 per cent of the
panches ineligible to contest. Out of the
6,075 sarpanches in the state, 15.8 per cent
are illiterate and 35 per cent are not matriculate. A total of 28.8 per cent have passed
Class X, 10.9 per cent have completed Class
XII and 7 per cent are graduates. Only 1.9
per cent are post graduates and above.
The situation is even worse when it comes
to panches. Of the 58, 608 panches, 32.2 percent are illiterate, while 38 per cent have not
studied up to matric. Around 21.2 per cent
are matric, 6.3 per cent have completed
10+2. Only 2 per cent are graduates and 0.3
per cent are post graduates and above.
The law seems slanted against the poor as
this section of the society is most deprived of
educational facilities. It was also against
women in view of the discrimination based
on gender, particularly in rural areas. This

discrimination is reflected in comparatively


poor literacy levels among females in rural
areas as compared to males. A study conducted on the literacy levels of female
sarpanches showed that 82 percent of them
were near illiterates. While 16 per cent had
attended school just 2 per cent were graduates. Such a law would further keep the
already marginalized away from inclusion in
the democratic process. Then, there would
have been practical difficulties. Local newspapers had carried stories on some villages
where no woman met the criteria even
though the seats were reserved for them.
The Haryana government has taken the
plea that the legislation was aimed at encouraging literacy. It appears preposterous considering that there is lack of adequate educational facilities in rural areas. Even where
there are schools, lack of basic amenities has
kept female students away. There have also
been frequent reports of sexual harassment.
Incidentally, the Rajasthan government
had also issued a similar ordinance in
December 2014, imposing minimum educational qualifications for those contesting
panchayat elections. The provisions of the
ordinance were challenged but the courts
had not provided any immediate relief. The
elections were conducted under the new
rules but the issue of constitutionality is still
pending before the Rajasthan High Court. IL

WHITHER
EDUCATION?
According to a study,
more than 80 per cent
of female sarpanches
are illiterate

The writer is former Resident Editor,


The Indian Express, Chandigarh
INDIA LEGAL October 15, 2015

63

Lawyers Welfare Fund of U.P.


has increased to 200 crore

Uttar Pradesh Chief Minister of the state's people in general Yadav as Chief Minister of the
Mr. Akhilesh Yadav said that and the poor, downtrodden and country's largest state is an
Samajwadi government had deprived sections of society in example to be sincerely followed
always worked for welfare and in particular. He has devoted by the other states if they really
larger interest of lawyers, adding h i m s e l f t o t h e c a u s e o f want to empower their people.
that present state government ameliorating the lot of the
The Chief Minister informed at
was taking forward the
a function, recently held
w e l f a r e m e a s u r e s Chief Minister gives away financial at his official residence
initiated by the
after distributing financial
g o v e r n m e n t o f M r. assistance to dependants of deceased assistance to deceased
Mulayam Singh Yadav. lawyers, Samajwadi Government has lawyers. Mr. Yadav gave
He further added that the
away cheques of Rs. 5
state government was always taken care of the interests of the l a k h e a c h t o t h e
committed to the welfare, lawyer fraternity : Chief Minister
dependants of 17
security and honour of the
deceased lawyers. The
lawyer fraternity.
Chief Minister also
Chief Minister Akhilesh Yadav disadvantaged sections of launched a short film 'Ummeed
has not only ensured the welfare society for their socio-economic K e N a y a k ' b a s e d o n
and protection of interests of emancipation, besides taking all humantarian help provided by
lawyers, but also started a necessary steps to protect social activists of the state in the
number of schemes programmes honour of girls and women. The aftermath of the devastating
and projects in the larger interest young and dynamic Akhilesh earthquake in Nepal.

Families of 17 Deceased Lawyers


given Cheques of 5 Lakhs
each by the Chief Minister

Mr. Yadav also said in his


address that death of anyone is a
painful thing and that it was the
responsibility of the Government
to extend help to the bereaved
families. Adding that while
nothing can compensate for the
loss of lives, the financial
assistance of the state government
would to some measure give
some relief to the families.
Referring to the corpus fund
arranged for the welfare of
lawyers, the Chief Minister said
this fund can never be done away
with and said this fund is solely
meant to help the dependents of
deceased lawyers.
Mr. Yadav also informed that a
beautiful and new building of the
Lucknow bench of the Allahabad
High Court was being
constructed by the state
government and that a feasibility
study to run Metro Rail in
Allahabad has also been
initiated. In future too, he
assured, the State Government

would keep working to expand


facilities for the legal fraternity.
Launching the short film
'Ummeed Ke Nayak', the Chief
Minister said that the state
government soon after the
devastating tremors in Nepal had

Present government is
trying seriously to provide
more facilities to lawyers.
State Government is
committed to security,
welfare and honour of
lawyers.
embarked on a number of relief
measures to provide succour to
the quake hit people. A large
number of affected people were
taken to safe places by the buses
of the UPSRTC, Mr. Yadav
recalled, while adding further that
the state government and
various social organizations also

worked relentlessly to provide


comfort, relief and other
necessary items to the quake-hit
people.
Expressing his gratitude for
people who have contributed to
the noble cause, Mr. Yadav also
lauded the efforts of
Mr. Navalkant Sinha
who made the short
film. In his welcome
address the advocate
general Mr. Vijay
Bahadur Singh said
that the Chief Minister
has decided to raise
the Lawyers Relief
Fund to Rs. 200
crore. He also
informed that the
state government
had increased the
amount to Rs. 5 lakh
admissible to the
family of a lawyer who
died on January 01
2014 and afterwards
and aged upto 60 years.
Nowhere in the country such a
scheme has so far been
implemented.
Under the fund, Mr. Singh
added, five schemes - UP
Lawyers Social Security
Scheme, financial assistance to
the families of deceased lawyers,
life insurance, supply of law
books to the Bar Association
libraries and repair-construction
of tin shades/ chambers for
seating of lawyers, are being
executed.
Also present on the occasion
were Political Pension Minister
Mr. Rajendra Chowdhary,
Principal Secretary (Law and LR)
Mr. Abdul Shahid, additional
advocate general Mr. Gaurav
Bhatia, Mrs. Bulbul Godiyal, Mr.
Ashok Pandey, Chief standing
counsel Lucknow Mrs. Sangita
Chandra, president of the UP Bar
Council Mr. Paresh Mishra, vicepresident Ms. Madhulika Yadav
and other dignitaries.

MORE NEWS/ National

Police protection to transgender youth

19-year-old transgender NRI was


granted police protection by the
Delhi High Court after she filed a plea
alleging that her fatheran influential
businessman with deep roots in Uttar
Pradeshhad activated the state
machinery to deprive her of her fundamental rights to life, liberty and education, reported
The Indian Express.

The teenager, who identifies as


male, was studying neurobiology at a
prestigious college in the US until she
was forcibly enrolled at Dayalbagh
Educational Institute in Agra and told
to keep mouth shut about gender
preference and sexual orientation. In
the plea the transgender alleged that
the parents were trying to force her
to marry.

SC women lawyers
want ban on porn

HE Supreme Court Women


Lawyers Association (SCWLA)
has moved the apex court, seeking
a ban on porn and dissemination of
objectionable material, considering how easily school students can
access porn.
The petition was filed by associations secretary Prerna Kumari.
Pornography corrupts the mind of
the young generation today, who
tend to commit crime against
women/girls/children. Easy availability of porn through internet,
CDs, porn videos/porn clippings
are the root cause of most of the
offences as well as crime against
women/girls/children. We seek the
formulation of a national policy on
the issue of pornography and to
frame guidelines to curb the growing issue of child pornography, the
petition said. The women lawyers
have even suggested schools to
install jammers to prevent access to
porn sites. This petition comes a
few weeks after the controversy
over the governments move to
block 857 porn sites.

Swamy
moves court

JP leader
Subramanian
Swamy has filed a
petition in the
Madras High Court
challenging the suspension of Indian
Premier League (IPL)
teams of Rajasthan
Royals and Chennai
Super King. He has
alleged that former
IPL boss Lalit Modi

had influenced the


course of events
affecting the two star
teams of Indian
Premier League.
Stating that the petition was filed in the
interest of public and
for the cause of cricket, Swamy sought an
interim stay order on
Justice RM Lodha
Committee banning
these teams. When
the petition came up
for hearing on
September 21, a
high court bench
comprising Chief
Justice Sanjay
Kishan Kaul and
Justice TS
Sivagnanam ordered
that it would be heard
along with a petition
filed by MS Dhoni-led
CSK, challenging the
teams suspension.

Aid for acid


attack victims

HE Karnataka government has


announced a pension
scheme for acid attack victims. The victims would
each get `3,000 per
month. The pension will

66

October 15, 2015

BJP, SP role in
Muzaffarnagar riots

USTICE (retd) Sahai Commission,


which was appointed by the
Samajwadi Party government to inquire
into the Muzaffarnagar riots of 2013, has
indicted local members of the SP in
Uttar Pradesh and the BJP for their role
in the riots. Over 60 people had been
killed in the riots. The commission
blamed senior police and administrative
personnel in the district for lapses. The
commission submitted its report to
Governor Ram Naik. The report would
be sent to Chief Minister Akhilesh Yadav
for further action.

be provided for acid attack


victims till the end of their
lives. The scheme was
announced by Umashree,
Minister for Women and
Child Development. In
addition to that, the government would also bear
the hospital bills for the
treatment of the victims

for up to `20 lakh. This


year in June, the Uttar
Pradesh government had
also announced a pension
scheme for acid attack
victims. In August, the
Delhi government
announced free treatment
for acid attack victims
even in private hospitals.

MORE NEWS/ National

Kalams book release cancelled

FTER the hue and cry over the renaming of Aurangzed Road to Dr APJ Abdul
Kalam Road, another controversy has arisen
involving the late president. This time, it is
over the launch of Kaalaatheetham, the
Malayalam translation of his book, Transcendence: My Spiritual Experience with
Pramukh Swamiji in Thrissur the last week
of September.
According to Malayala Manorama, various organizations staged protests at the
Kerala Sahitya Akademi, after Sreedevi S

Happy Birthday
song claims
invalid

Kartha, the translator of the book, was


denied permission to share the dais allegedly at the insistence of Swami Brahmavihari
Das, the chief guest. The Swami skipped the
function following the controversy.
Sreedevi said she was asked by the
publishers to stay away from the dais as
Brahmavihari Das does not want to share
the stage with a woman.
The book was supposed to be released by
Kalams co-author Arun Tiwari and eminent
Malayalam writer MT Vasudevan Nair.

Uproar over Modis autograph

ONE of the companies


that have collected royalties on the Happy
Birthday song for the past
80 years, held a valid copyright claim to the song, a
federal judge in Los Angeles
has ruled, Los Angeles
Times reports.
In a stunning reversal of
decades old copyright
claims, the judge ruled that
Warner/Chappell never had
the right to charge for the
use of the famous Happy
Birthday To You song.
Warner had been enforcing a copyright since 1988,
when it had bought Birch
Tree Group, the successor to
Clayton F Summy Co,
which claimed the original
disputed copyright.
Judge George H King
ruled that a copyright filed
by the Summy Co in 1935
granted only the rights to
specific piano arrangements
of the music, not the actual
song.

HERE was a huge uproar after Prime


Minister Narendra Modi autographed a
flag during his recent visit to the US. The
controversy erupted after chef Vikas Khanna,
who had prepared dinner for the Prime
Minister, along with Fortune 500 CEOs,
approached Modi with a flag made by Smile
India Foundations children to be gifted to

President Barack Obama.


According to the rules governing the
national flag, putting any inscription on the flag
is considered disrespectful. The government
has defended the act, saying it was not a flag, it
was a memento made by a differently-abled
child of Smile India Foundation. It was not a
proper flag as it did not even have the Ashoka
wheel. So the question of attracting the Flag
Code of India, 2002 or Prevention of Insults to
National Honour Act, 1971, does not arise.
Soon after the story broke out,
#ModiDisrespectsTricolor began trending on
Twitter. The Congress was quick to criticize
Modi. Party leader Manish Tewari tweeted:
Has PM read Para 2.1 sub para 6& Para 3.28 of
Flag Code 2002 that states lettering on
National Flag is misuse. 3 yrs jail under PINH
Act 2003.

LGs approval
not binding

HE Aam Admi Party (AAP) government,


represented by senior advocate Dayan
Krishnan, appearing before the bench of Chief
Justice G Rohini and Justice Jayant Nath, has
argued that the Delhi cabinet is not bound to
take the approval of the LG regarding its decisions. According to The Indian Express, advocate Krishnan argued that the Lt Governor was
required to consult the chief minister even to
take decisions on issues concerning police,
land, and law and order, even though these
were not state subjects. Last week, the high
court bench decided to hear the final argu-

ments on the issue of interpretation of Article


239AA of the Constitution, after cases were
filed regarding the tussle between the LG and
the AAP government.

INDIA LEGAL October 15, 2015

67

FOCUS/ British Police Officer/Gurpal Virdi

Never Say Never


In a stunning case, an Indian-origin officer of the Met was hounded for
challenging racism in his force and even slapped with a sexual assault
case. The intrepid fighter finally has won all his battles handsomely
By Sajeda Momin in London

N Indian-origin officer in the


British police force has been
acquitted of racially and sexually abusing a teenager 29
years ago, finally bringing an
end to the legal battles the man and his family were subjected to for decades. When summing up the case, the judge at Southwark
Crown Court in London suggested that there

was a strong possibility that a conspiracy had


been hatched to tarnish Gurpal Virdis reputation, but that he was now being acquitted
with his honor intact. Virdi had all along
claimed that the Metropolitan Police, for
which he worked for 30 years, had been
hounding him for most of his career because
he was one of the few Asian officers who
dared to speak up against the inherent racist

ITS MY RIGHT
Gurpal Virdi has shown
tremendous courage and
perseverance in taking on the
mighty Met

68

October 15, 2015

In the murder
case of Stephen
Lawrence (left),
Virdi gave
evidence of
prevalent racism
in the British
police force. The
result was, Virdi
himself began to
be targeted.

nature of Britains largest police force.


Virdi, 56, was accused of beating a 16year-old boy in the back of a police van, calling him a nigger and sexually assaulting him
with a police baton in 1986. The alleged victim, now 44, filed the case against Virdi in
2014, by which time Virdi had already retired
as Detective Sergeant.
Virdi was arrested last year when the alleged victim claimed that he was swung round
by his handcuffs hitting every inside panel of
the van, verbally abused by being called a
nigger and then prodded in the bottom
with a collapsible police truncheon.
Virdi was then part of the crime squad in
Battersea in South London and the incident
is supposed to have happened outside the
Old Bailey. It was this last allegation that
actually cleared Virdi. The jury was told that
while the incident was alleged to have taken
place on November 7, 1986, the British police
force first issued collapsible truncheons
to their officers four years later in 1990. It
took the jury only 50 minutes to acquit Virdi
of all charges.
COOKED UP CASES
A visibly relieved Virdi said the case had been
cooked up against him by the Metropolitan
Police or the Met, as it is often called, and
covers the whole of London and the Greater
London area, because they wanted to tarnish
his image even now. It is disturbing that the
Met Police is still campaigning and targeting
me and my family year after year. This has to
stop, said Virdi.
Criticizing what he called the combination of conspiracy and incompetence,
Virdi said he was targeted as he was the only
one who stood up and fought racism in the
British Police Force. During the trial, Virdi
accused the Met of bringing the criminal case
against him as part of a 17-year-long campaign to hound him out of the force. It was
done to keep me quiet and then to make me
look bad in the community, and people did
avoid me. It was meant to destroy me,
explained Virdi, who lives in Hounslow in
West London with his wife and two grownup children.
Born in India, Virdi came to Britain as a
young boy and grew up in Southall in West

London, a predominantly Punjabi area. His


father had served with the Delhi police, but
when Virdi joined the Metropolitan Police in
1982, his parents were unhappy with his
decision. Very few men or women of immigrant communities joined the British police
then, as it was considered a white force. Virdi
says that even today there are only some
dozen officers of Asian, African or mixedrace origin who have been recruited and
managed to last 30 years in the police force.
He had an unblemished career in uniform, CID and specialist squads until he

ALL-WHITE AFFAIR
The Metropolitan
Police doesnt have
much representation
of Asian or African
communities

INDIA LEGAL October 15, 2015

69

FOCUS/ British Police Officer/ Gurpal Virdi

was arrested in 1998. Ironically, Virdi was


charged with sending racist hate mail to himself and other Asian and black colleagues at
Ealing Police Station where he was posted,
signing them from the racist National Front
Organization.

Virdi came to
Britain as a
young boy and
grew up in
Southall in West
London (below),
a predominantly
Punjabi area.

70

October 15, 2015

SLOPPY PROBE
He and his wife had to face the harrowing
experience of having their home searched for
seven hours in the presence of their young
children. The raid was authorized by then
deputy commissioner, John Stevens, and
came weeks after Virdi had threatened to go
over the heads of his superiors regarding
what he felt was a sloppy investigation of a
racist, near-fatal stabbing of two boysan
Indian and an Iraqiby five white males.
Virdi had spoken up and pointed out the
similarities with the racist investigation
into the murder of a black teenager, Stephen
Lawrence in 1993.
The Stephen Lawrence murder and investigation has become a pivotal point in the
history of British race relations. Virdi gave
evidence in the Stephen Lawrence inquiry
about racism within the police force, and he
claims that ever since, the Met has been trying to discredit him. My career finished in
1998, said Virdi. As soon as you raise your

head above the parapet, your career is finished, and everyone in the police service
knows that. Most people keep silent because
they know that even if you complain, the
investigation wont be done properly. That
hasnt changed even now, he added.
It took a year for the Crown Prosecution
Service to decide there was insufficient evidence to prosecute him, not least because the
racist mail continued while Virdi sat at
home. Even so, Scotland Yard seemed determined to make an example of him and he
was dismissed in March 2000 after a disciplinary panel found him guilty of sending the
racist mail.
HONOR RESTORED
Later that year, an employment tribunal
found that the Mets investigation had racially discriminated against Virdi. It ruled that
unlike his white colleagues, Virdi had been
subjected to an entrapment operation, been
formally interviewed, had his house searched, been arrested and suspended without
sufficient evidence to support the allegations. He was awarded 1,50,000 as damages for the high-handed way the Yard had
behaved and the way it had manipulated
media coverage. He was also given another
90,000 as an out-of-court settlement for
injury to his feelings.
The
Independent
Advisory Group, which
monitors the Mets performance on race crime,
described the investigation as disgraceful and
a high-profile character
assassination. In 2001,
Virdi and his wife,
Sathat, were assured by
Commissioner Stevens
that lessons had been
learnt, sent a formal
apology and reinstated
into the Force. The officer, or officers, who were
responsible for sending
the racist hate mail have
never been found and
the criminal case remains unsolved.

When the Labor


Party disowned
him, Virdi
contested as an
independent in
the local council
elections and,
true to his habit,
emerged
victorious.

In 2002, much against the wishes of his


wife, Virdi went back to the Met. He was
assured by Stevens that his career would not
suffer as a result of a negative internal report
claiming there was still strong evidence of
his guilt. But his battle with the Force was
far from over.
CONSTANT HURDLES
Encouraged by senior officers, in 2005,
Virdi applied for promotion to detective
inspector at a time when the Met had advertised that it had a shortage. He was endorsed
by his line manager and it was agreed that
he satisfied all the official criteria. But he
was turned down by a review panel and his
appeal rejected.
Virdi went to the tribunal claiming victimization after being passed over for promotion and eventually, it ruled in his favor.
In its judgment on liability, the tribunal
ruled that Virdis promotion application was
treated differently from that of someone
who had not taken legal action against the
force. It said the process was shoddily operated and noted that he was now unlikely to
get another chance of promotion before he
retires. Virdi was awarded 70,400 in compensation, bringing the total he had won

from the Force to more than 3,00,000.


In the last five years of his career, Virdi
just pushed pen around paper for the Mets
Sikh Association, in the redeployment pool
waiting for a suitable post. I am not the type
of person to run away. I wanted to complete
30 years, and Im glad that Ive done it. Ive
enjoyed what Ive done, but feel sad as I
could have done so much more. I have been
stopped from reaching my potential, said
Virdi on his retirement.
However, this was not to be the end of his
harassment. Post-retirement, Virdi took up a
second career in politics and joined the
Labor Party. Last year, he won the Labor
nomination in the local council elections,
standing in the Cranford ward of Hounslow.
But right in the middle of the campaign, the
latest trumped up case of violence and sexual abuse was filed. The Labor Party dropped
him as their candidate in the election, Virdi
contested as an independent. He won his seat
on the council by 1,643 votes.
Virdi, who has acquired quite a reputation for taking legal recourse to get justice, is
very likely to seek compensation and damages for the latest attempts by the Met to
frame himand going by his track record he
will probably win! IL
INDIA LEGAL October 15, 2015

71

ENVIRONMENT/ Volkswagen Scandal

W
Carmic

Emissions

The notice of violation to Volkswagens


diesel cars in the US should serve as a
wake-up call for India. It will have to address
emission standards, testing systems and
compliance norms followed here
By Dinesh C Sharma
72

October 15, 2015

HEN pollution checking


norms for cars and twowheelers were enforced
more a decade ago, the
center made it mandatory for every vehicle to carry pollution
under check (PUC) certificate under the
provisions of the Motor Vehicles Act. The
process of issuing these certificates soon
became a scam, with even polluting vehicles
getting the PUC sticker. The emission measuring machines were not properly calibrated,
certificates were issued manually and bribes
were common.
The situation improved with the introduction of computerized checking and the
use of web cams to capture number plate
images. Still the system is not foolproof. Now
imagine a situation in which your latest car
comes loaded with software that can hoodwink the emission checking machine and
make it believe that emissions from your car
are below the regulatory limit. This is what
Volkswagen did with American regulators.
On September 18, the US Environment

Protection Agency (EPA) issued a notice of


violation under the Clean Air Act to Volkswagen AG, Audi AG and Volkswagen Group
of America. The notice charged the group
companies for including software that can
circumvent EPA emission standards in their
four-cylinder Volkswagen and Audi diesel
cars from model years 2009-2015.
DEFEAT DEVICE
The software developed by Volkswagen has
been dubbed as defeat device as defined by
the Clean Air Act. Using a defeat device in
cars to evade clean air standards is illegal and
a threat to public health, said Cynthia Giles,
assistant administrator for the Office of
Enforcement and Compliance Assurance.
The sophisticated software algorithm can
detect when the car is undergoing official
emissions testing, and turns full emissions
controls on only during the test. It is embedded in the software code that runs the engine
control computer. The effectiveness of these
vehicles pollution emissions control devices
is greatly reduced during all normal driving

A software installed in four-cylinder Volkswagen


and Audi diesel cars can detect when the car is
being subjected to emission test and turns on
emission controls to meet the standards.
situations. This means that cars that meet
emission standards in testing labs actually
emit air pollutants 40 times the regulatory
limit during normal operation.
EPA standards control the allowable
emission levels of nitrogen oxides (NOx),
hydrocarbons, carbon monoxide, carbon
dioxide, particulate matter and certain toxic
chemicals. The defeat device affects the way
the NOx control system operates, resulting in
higher NOx emission levels from these vehicles than from vehicles with properly operating emission controls. The violations cover
about 482,000 diesel passenger cars sold in
the United States since 2008, and affected
models include Jetta, Jetta Sportwagen,
Beetle, Beetle Convertible, Audi A3, Golf,
Golf Sportwagen and Passat.

UNETHICAL
PRACTICE
Volkswagen cars
have been accused
of cheating
American regulators

INDIA LEGAL October 15, 2015

73

ENVIRONMENT/ Volkswagen Scandal

rate, and todays announcement shows why,


Drew Kodjak, ICCTs Executive Director,
said in a statement. While VW cars failed
tests under different driving conditions,
BMW car met emission norms.
ICCT research studies in Europe too have
found gaps between real world emissions and
regulatory certification levels.
RIPPLES WORLDWIDE
The emission scandal has created ripples not
just in the German car industry but among
car makers and car markets globally. France,
South Korea, the UK and Italy have ordered
investigations.
The Indian government too has reportedly asked the Pune-based Automotive Research Association of India to submit a report on
emission levels of Volkswagen cars in India
as the diesel car models found to be violating
EPA norms are available in India too.
However, it is to be noted that Indias

Anand Mahindra,
Chandra Bhushan,
CMD of Mahindra
deputy director of
Group, has assured
Centre for Science and
followers on Twitter that
Environment (CSE),
he will apply the
says the Volkswagen
strictest code of ethical scandal busts the myth
practices throughout
of clean diesel
the globe. Car buyers
vehicles, which CSE
are anxious after the
had exposed 15 years
Volkswagen scandal.
back in its report.
The International Council on Clean
Transportation (ICCT), which was involved
in a research along with West Virginia
University on three cars (VW Jetta, VW
Passat, and BMW X5), helped detect the
defeat device. The project was aimed to evaluate real-world operating emissions from
light-duty diesel vehicles in the United
States. Clear protocols, in-use requirements
for the useful life of vehicles, clear enforcement follow-through, the authority to fine
and force recallsthese are best practices
that regulations worldwide should incorpo-

74

October 15, 2015

emission standards are much less stringent


than those currently followed in America
and Europe.
The fraud busts the myth of clean diesel
vehicles. About 15 years back, we had come
out with a report in which we said that diesel
vehicles cannot be cleaned up beyond a certain level. And that then also the toxic emissions from the diesel vehicles would be very,
very high. But the automobile industry still
propagated this myth of clean diesel vehicles.
Now the truth is coming out that they never
cleaned up; they just cheated by putting a
software that showed low emissions during
tests, pointed out Chandra Bhushan, deputy
director of Centre for Science and Environment. India is dieselizing very rapidly. More
than half of cars sold today are diesel cars.
We will have to stop these vehicles if we want
to clean our air, he added.
I can only promise you that we will apply
the strictest code of ethical practices to our-

The Indian government has reportedly asked


the Pune-based Automotive Research
Association of India to submit a report on the
emission levels of Volkswagen cars in India.
selves throughout the globe, Anand Mahindra, chairman and managing director of
Mahindra Group assured his followers on
Twitter who were anxious about Indian cars
after Volkswagen scandal.
Cars have been recalled for emission
related issues in India in recent years. In
2013, General Motors had recalled 1.14 lakh
units of its Tavera model manufactured
between 2005 and 2013 for emission-related
issues. The exact nature of the emission
problem was not specified, but the company
said the recall was not linked to any safety
issue. It was speculated that the company
had got type approval based on improved
engines but the ones sold in the market were
not fitted with the same engine.
The Volkswagen scandal is a wake-up call
for Indian authorities. They will have to set
right emissions standards, testing systems
and compliance norms in order to avoid similar scams. IL

DETECTING FRAUD
(Above) Drew Kodjak, executive
director, The International
Council on Clean Transportation
(Left) Volkswagen cars passing
emission standards in tests
actually emit air pollutants 40
times the regulatory limit

INDIA LEGAL October 15, 2015

75

DIPLOMACY/ Nepals Constitution

HERALDING A NEW
EPOCH
Nepalese President Ram
Baran Yadav promulgates
the constitution at the
parliament in Kathmandu on
September 20

Photos: UNI

Playing Big Brother


Not everyone is happy with
Nepals new constitution,
particularly the Madhesis of
Indian origin settled in the plains.
But rather than voice its
displeasure, New Delhi should
work quietly to bring about
necessary amendments
By Seema Guha
76

October 15, 2015

EPAL got a brand new


constitution on September 20. It should
have been a red letter
day for the country,
because at last, after
seven long years of
squabbling, the political leaders were able to
put together the nations secular constitution.
Yet, the constitutionbrought about by the
blood, sweat and tears of thousands of ordinary Nepalishas ignited violent protests in
the plains and threatens the unity of the new
Republic. In short what should have been a

FISSURES REOPEN
The new constitution has
alienated the Madhesis of
Indian origin,
leading to violent protests

day to celebrate has turned into a major crisis. It is a time bomb which, if not handed
carefully, could lead to convulsions across the
length and breadth of the land locked nation.
The constitution, which is surprisingly
progressive on several counts, including full
rights for gays, lesbians and transgenders,
fails to address the core concerns of the people living in the Terai region. Madhesis are
people settled in Nepals plains from the
adjoining Indian state of Bihar. While they
are loyal citizens of Nepal they also look to
their country of origin in times of crisis. The
representation of the Madhesis in Nepals
Parliament will be drastically reduced by the
new constitution. The main demand of the
Madhesis is representation equal to their
population and federal redistricting that
maintains Madheshwhich would guarantee the group a bigger representation in parliament. Madhesis see the move to restrict
their parliamentary numbers as an attempt
to take away their political clout.

In the western Terai, the indigenous


Tharus are unhappy at the prospect of being
split in two and forced to share their provinces with hill districts that, they fear, will
corner all the development funds and get the
better of the Tharus.
DIVISIVE POLITY
The constitution was pushed through by the
four main political parties, despite knowing
that this was not acceptable to a large number of its citizens. The Nepali Congress, the
Communist Party of Nepal Unified, Marxist
Leninist (CPN-UML) and the Unified
Communist Party of Nepal-Maoist refused to
heed the advice of President Ram Baran
Yadav, himself a man from the Terai region.
He asked them to speak to all sections in the
plains. As news of the constitution being
forced through spread, violent protests shook
the plains. The tough stand taken to quell the
violent protests resulted in the death of at
least 42 persons, among them policemen

Can India afford


to antagonize
Kathmandu and
allow China to
spread its wings
further in Nepal?
By sulking and
over-reacting
India is helping
neither the
Madhesis nor
itself.

INDIA LEGAL October 15, 2015

77

DIPLOMACY/ Nepals Constitution

Indias reaction
D

espite being one of the


major backers of Nepals
decade-long process to develop a federal constitution to
heal the scars of its civil war,
New Delhi has urged Nepalese
leaders to delay adopting it, on
the ground that the new constitution is not broad-based
enough and expressing concern that it could spur violence
which could spill over into its
own territory bordering Nepal.
Reports in the Indian media
say that Indias ambassador in
Kathmandu, Ranjit Rae, spoke
to Prime Minister Sushil Koirala
hours before the constitution
ceremony to express Delhi's
disappointment at the process
going through.
Government sources who
spoke to the media in Delhi,
confirmed that there were
seven major amendments that
New Delhi urged Kathmandu
to adopt, in order to make the
new constitution acceptable to
the Madhesis and Janjatis.


EFFORT
GONE
WASTE?
Prime
Minister
Narendra
Modis
Kathmandu
visit in
August had
led to a
new
optimism in
bilateral
relations

78

who were lynched by the mob. The murderous assault on the police spread bad blood
across the nation. The hope for a new beginning with a brand new peoples constitution,
in the drafting of which neither the monarchy nor the Nepalese army had a say, was
drowned in the anger and violence in the
plains. Nearly 40 percent of Nepals population live in the Terai region and so a large section of the country is unhappy with the new
arrangement.
INDIAs PIQUE
India, which played a major role in getting
the Maoists to the table for talks in 2006, is
extremely unhappy with the turn of events.
Prime Minister Narendra Modi had spoken
to his Nepalese counterpart, Sushil Koirala,
on ensuring that all sections in Nepal are

October 15, 2015

Article 84 of the new constitution omits allotting Madhesis


electoral constituencies in proportion to its population. Under
the previous interim constitution, Article 63 (3) provided
electoral constituencies based
on population, geography and
special characteristics, and in
the case of Madhesis on
the basis of percentage of
population.

Article 21 of the interim constitution stated that various


groups would have the right
to participate in state structures on the basis of principles
of proportional inclusion.
Article 42 of the new constitution dropped the word proportional; New Delhi wants it
re-inserted.


Article 283 of the new consti-

tution states that only citizens


by descent will be entitled to
hold the posts of president,
vice-president, prime minister,
chief justice, speaker of parliament, chairperson of National
Assembly, head of province,
chief minister, speaker of
provincial assembly and chief
of security bodies. This clause
is seen as discriminatory
towards Madhesis who have
acquired citizenship by birth or
naturalization. New Delhi says
this should be amended to
include citizenship by birth or
naturalization.


Article 86 of the new constitution states that the National


Assembly will comprise eight
members from each of the
seven states and three nominated members. Madhesis
want representation in National
Assembly to be based on population of the provinces. New
Delhi says this should be done
to address concerns.


Based on the majority of the


population, the five disputed
districts of Kanchanpur, Kailali,
Sunsari, Jhapa and Morang
may be included in the neighboring Madhes provinces.


Article 154 of the interim constitution provided for delineation of electoral constituencies every 10 years. This has
been increased to 20 years in
Article 281 of the new constitution. India wants this restored
to 10 years.


Article 11(6) of the new constitution states that a foreign


woman married to a Nepali citizen may acquire naturalized
citizenship of Nepal as provided for in a federal law. With
New Delhis backing, Madhesi
parties want acquisition of naturalized citizenship to be automatic on application.

consulted and given their due in the new


Constitution. However, despite the excellent
ties between New Delhi and Kathmandu,
especially after Modis two highly successful
visits to the neighbouring country, this sudden turnaround came as a shock. Having
invested both time and energy to take relations with Nepal to a new plane, New Delhi is
now making no bones about its irritation
with Nepals top political leadership.
In fact, before the constitution was
finalised, India invited UCPN (Maoist) chairman and former prime minister, Pushpa
Kamal Dahal, and his wife; CPN-UML
leader Madhav Kumar Nepal; and Nepali
Congress leaders, Sher Bahadur Deuba and
Ram Chandra Poudel; to India in July when
negotiations on the constitution were in the
final stages. In Delhi they met Indias top
officials and were advised to take the
Madhesis and other groups into confidence
before finalising the constitution. It is said
that the political leaders assured New Delhi
that all interests would be taken into consideration. In a recent visit to Kath-mandu,
Indian foreign secretary Jai Shankar delivered the same message.
TOUGH CHOICES
New Delhi has issued two curt
statements since the new constitution was unveiled. The first
was on Sunday, September 20.
Nepals other neighbour China
warmly welcomed the constitution on the same day. Chinas
footprints are already spread
across Nepal and in the past,
whenever the monarchy wanted
to needle New Delhi, it would
invariably play the China card.
Like every small nation sandwiched between two big powers, Nepal will continue to use
China to score points against
India. But can India afford to
antagonize Kathmandu and
allow China to spread its wings
further in Nepal, is a question
the government has to answer.
By sulking and over-reacting
India is helping neither the

Madhesis nor itself.


New Delhi did not congratulate Kathmandu when the constitution was unveiled
by an unsmiling and clearly troubled Nepal
President Ram Baran Yadav. The MEA statement merely said: Throughout the process
of constitution making in Nepal, India has
supported a federal, democratic, republican
and inclusive constitution. We note the
promulgation in Nepal today of a constitution. We are concerned that the situation in
several parts of the country bordering India
continues to be violent. Our ambassador
in Kathmandu has spoken to the prime minister of Nepal in this regard. We urge that
issues on which there are differences should
be resolved through dialogue in an atmosphere free from violence and intimidation,
and enable broad-based ownership and
acceptance. This would lay the foundation
of harmony, progress and development in
Nepal.
India followed this up with another terse
statement on September 21: We are deeply
concerned over the incidents of violence
resulting in death and injury in regions of
Nepal bordering India following the promulgation of constitution yesterday. Our freight
companies and transporters have also

As a sovereign
nation, Nepal has
every right to go
ahead with its
own plans. But
the Madhesis
also need to
get their due.
Otherwise, the
situation is likely
to deteriorate
further.

LONG-AWAITED
MOMENT
People cheer during
celebrations a day after
the first democratic
constitution was
announced in Kathmandu

INDIA LEGAL October 15, 2015

79

DIPLOMACY/ Nepals Constitution

Timeline Nepal
 19501951
The Nepali
Congress Party
(NCP) formed
through the
merger of the
Nepali National
Congress and
the Nepal
Democratic
Congress in
Calcutta.

 19551959
King Tribhuvan
dies; succeeded by
Mahendra.
A multi-party
constitution is
adopted.

non-party system of councils


known as panchayat under
which the king
exercises unilateral power.

 19721980
 19601963
King Mahendra
seizes power
and suspends
parliament,
after NCP wins
elections with
BP Koirala as
premier. New
constitution
provides for

Nearly 40
percent of
Nepals
population
lives in the
Terai region
and so a large
section of the
country is
unhappy with
the new
arrangement.

80

October 15, 2015

King Mahendra
dies, succeeded
by Birendra.
Constitutional referendum follows
agitation for
reform. King
allows direct
elections to
national assembly, but on a
non-party basis.

 June 1, 2001

 19851989

King Birendra,
Queen
Aishwarya and
seven royal family members shot
and killed by a
drunken Crown
Prince Dipendra,
who then shoots
himself.

NCP begins civil


disobedience,
campaigning for
restoration of
multi-party
system.

 19901992

Security forces
repress street
protests, resulting in deaths
and mass
arrests. Under
pressure,
Birendra agrees
to a new democratic constitution. NCP wins
first democratic
elections. Girija
Prasad Koirala
becomes prime
minister.

voiced complaints about the difficulties they


are facing in movement within Nepal and
their security concerns, due to the prevailing
unrest. We had repeatedly cautioned the
political leadership of Nepal to take urgent
steps to defuse the tension in these regions.
This, if done in a timely manner, could have
avoided these serious developments. We have
consistently argued that all sections of Nepal
must reach a consensus on the political challenges confronting them.
The issues facing Nepal are political in
nature and cannot be resolved through force.
We still hope that initiatives will be taken by
Nepals leadership to effectively and credibly
address the causes underlying the present
state of confrontation, it read.
The mood in the government is anger at
Nepals defiance. But as a sovereign nation,
Nepal has every right to go ahead with its
own plans. The problem however is that the
Madhesis also need to get their due. Unless
that happens, the situation is likely to deteriorate further. Once there is unrest, there will
certainly be an exodus into the neighbouring
Indian state of Bihar. The timing could not

 19941995
No-confidence motion
sinks Koirala
government.
Fresh elections lead to
the formation
and subsequent dissolution of
Communist
government.

have been worse for the Modi government,


which has put all its energies into winning
the state elections scheduled for next month.
Some of Indias frustration at Nepal has to do
with the Bihar elections.
Indias reaction has been unusually
strong, says analyst SD Muni, who has long
followed events in Nepal. There was no need
for Delhi to come up with this kind of statement which naturally will not be well
received in Kathmandu. Urging all sections
to work together is fine, but we cannot be
arrogant. Nepal is a sovereign nation after
all, he adds.
Indias anger stems from the fact that
Nepals usually docile leaders have snubbed
the prime minister. There is irritation not
just in the government circles but also among
sections in the RSS which wanted Nepal to
retain its character as a Hindu kingdom.
Seventy percent of Nepals population is
Hindu. This section is also pro-monarchy.
Indias petulance will encourage this section,
as well as the extreme Left wing cadres
among the Maoists. None of this is good
news for either India or Nepal.

 political confronta-  January 2007


tion over extending the state of
emergency. Sher
Bahadur Deuba
heads interim government, renews
emergency.

 June 4, 2001
Prince Gyanendra
crowned the king.

 November 2001

 October 2002
King Gyanendra
dismisses Deuba
and indefinitely
puts off elections
set for November.

Parliament
approves abolition
of monarchy as
part of peace deal
with Maoists, who
agree to re-join
government. Interim constitution
comes into effect.

 May 2008

Nepal becomes
a republic.
Gyanendra orders
the army to crush
July 2008
Maoist rebels.
Ram Baran Yadav
April 2006

Hundreds are
becomes Nepals
Gyanendra agrees
killed in rebel and
first president.
to reinstate parliagovernment operament following
tions in the follow August 2008
weeks of violent
ing months.
Maoist leader
protests against
Prachanda forms
direct royal rule.
coalition govern May 2002
Maoist rebels call
Parliament disment, with Nepali
a three-month
solved, fresh elecCongress going
ceasefire.
tions called amid
into opposition.

NEPALS DISPLEASURE
Nepal is equally angry with India for what it
perceives as New Delhis arrogance. India is
playing with fire. Instead of encouraging the
Madhesis it should calm tempers and ensure
that this problem is resolved amicably. It is
not something that cannot be worked on and
solved to the satisfaction of all, says Kanak
Mani Dixit, the editor in chief of the prestigious Himal Southasian magazine, published
from Kathmandu.
New Delhi will be blamed if the situation
takes an uglier turn, he adds.
Many Nepalis now realize what Sri
Lankas felt about Indias interference in its
ethnic problem. They say they can understand what the Sinhalese majority felt when
India, for its domestic political considerations, championed the cause of the Sri
Lankan Tamils. What the Nepalese forget
was that Tamils were second class citizens in
the island nation.
Kanak Mani Dixit admits that there are
many loose ends in the new constitution
which have to be tied up. He says the people
of the Terai have to be accommodated, but

Political deadlock,
fails to reach a
as no party wins a
compromise with
majority.
Prime Minister
opposition on new
Prachanda resigns in
constitution and
 February 2014
a row with President
the fate of former
Consensus reached
Yadav. Maoists leave
Maoist fighters.
between the two
government after
Parliament elects
major parties in the
other parties oppose
the Maoist partys
constituent assemintegration of former
Baburam Bhattarai
bly. Sushil Koirala
rebel fighters into
as prime minister.
sworn in as PM.
national army.
 May 2012
Communist leader
February 2015
Prime Minister
Madhav Kumar
Police fire teargas
Bhattarai dissolves
named new prime
and water cannons
minister. He quits in
parliament, calls
at opposition supJune 2010.
elections for
porters protesting
November after
February 2011
plans for a parliapoliticians miss a
Jhalnath Khanal
mentary vote on a
final deadline to
elected PM,
disputed new
agree on a new
ending a sevennational constitution.
constitution.
month void in
governance.
 November 2013  September 20,
Elections for an
2015
August
2011

assembly which
Constitution of
PM Jhalnath
will write a new
Nepal comes into
Khanal resigns
constitution.
effect.
after government

May 2009

violent protests is not the answer. I am very


happy that the making of the constitution is
now complete after a wait of nearly eight
years. Its not optimal, drafted as it is by
politicians. Its filled with contradictions, in
the sense that there are a profusion of promises, says Dixit.
Women's groups are unhappy with the
new constitution as it discriminates against
Nepalese women in what is already a patriarchal society. If a Nepali woman marries a foreigner, their children cannot become Nepali
unless the man first takes citizenship, a
process that could take around 15 years. But
if a man marries a foreigner, the women can
easily get Nepali citizenship and their children are Nepali regardless of the wifes
nationality. The Madhesis are also worried
because many in the community marry from
across the border in India.
However, there is still time to amend the
constitution and allay the fears of the plains
people. And instead of publicly slamming
Nepal, India should work quietly behind
closed doors. Anger and frustration are not
the right tools to be used in diplomacy. IL
INDIA LEGAL October 15, 2015

81

PEOPLE / Maternal Instinct

TWO SIDES OF THE SAME


An owl-faced monkey protects her
month-old baby at the zoo in Antwerp.

FURRY BALLS OF WHITE


Twin polar bear cubs, Nela and Nobby, and their mother Giovanna play
outside their enclosure at Tierpark Hellabrunn zoo in Munich.

A QUESTION OF SIZE
A hippopotamus with its calf at the Arignar Anna
Zoological Park, Chennai.
STRIP(E) TEASE
White Bengal Tiger Clara and her three cubs play at
Huachipas private zoo in Lima, Peru.
CLAY
MODELS
A one-anda-half-month
old baby
elephant
stands
close to its
mother at
The
National
Park in
Chitwan,
south of
Kathmandu.
HUNGRY MOUTHS
A swallow feeds her babies in Guizhou, China.

82

Compiled by Kh Manglembi Devi


Photos: UNI

October 15, 2015

RNI No. UPENG/2007/25763

Postal Regd. No. UP/GBD-197/2014-16


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