Jayas Troubling Legal Legacy

I L
www.indialegallive.com

December 31, 2016 `100

NDIA EGAL STORIES THAT COUNT

The Gathering Storm

Insiders fear the tables may be turning as Modis 5O-day deadline approaches
LETTER FROM THE EDITOR
INDERJIT BADHWAR
MODIS
EXPERIMENT
WITH TRUTH
HAVE just returned from a 600-km
I reportorial road trip, accompanied by
a camera crew from India Legals sister
concern, APN NEWS, after covering a
part of UPs Rohilkhand area which
starts unrolling from Delhis suburban
Ghaziabad and stretches through Buland-
shahr, Narora, Gunnaur, Sahaswan, Bad-
aun, Bilsi, Bareilly, Moradabad, Rampur
well, you can see it on the map.
It is a relatively prosperous, mostly far-
ming area crisscrossed by bad roads, mar-
ket towns, wholesale mandis and bustling
Tier-3 cities. They grow everything here.
Sugarcane, maize, rice, wheat, potatoes,
bajra, urad daal, mustard, leafy greens,
cauliflower galore. The small towns trade
feverishlyin commodities, private rural
micro-credit, potato futures, consumer
goods, cloth, machine tools, as well as
human labor which the areas thousands of
villages export to larger towns to work as
petty vegetable vendors or daily wagers.
I have covered famines and droughts in
Bihar and eastern UP since I was a cub
reporter and I know rural distress when I
see it. I do not exaggerate when I report
todayas I have done for a documentary
for APNthat the governments demoneti-
zation has virtually drained the economic
bloodline of this region, reducing it to a
grim shadow of its former relatively pros-
perous self.
To change the metaphor: You dont need
to be an expert or an economist to under-
stand that when you empty a cash-based
economy of the cash which oxygenates it
and have no back-up ventilators, its lungs
collapse. Rohilkhandand reports from
most regions of India seem to suggest sim-
ilar distressis gasping for breath.
The rabi crop sowing season, mostly
wheat, is behind schedule for want of diesel
for irrigation and fertilizer. Rural liquidity,
on which market towns bustle and flourish,
is kaput. Potatoes and tomatoes are rotting
in mandis even as villagers have no cash to
purchase them.
Migrant labor which sent back earnings
to their villages from larger towns are
returning home empty-handed and jobless Even if one can
and scrounging on the savings of relatives understand the
and older parents. Real estate and land
transactions have collapsed along with con-
idea of a cash-
sumer spending. Weavers and artisans less economy as
are borrowing food because theres no pay-
day anymore.
a brilliant idea,
Paytm and digital transactions are a the idea of
space-age away. Even if one can understand cashless banks
the idea of a cashless economy as a brilliant
idea, the idea of cashless banks and ATMs and ATMs is
is mind-blowing. The queues are longer. mind-blowing....
There are not hours but repeated days of
waiting in lines which spare neither young
There are not
nor old, man or woman, beggar or disabled. hours but
And yet, while the anger escalates and repeated days of
the restiveness mounts many of these
wretched of the earth bear their suffering waiting in lines
with stoicism even as they grit their teeth which spare
and curse. Increasingly, they are exploding
into anti-Modi sloganeering, but there
neither young
are those who, even as they berate their nor old....
INDIA LEGAL December 31, 2016 3
LETTER FROM THE EDITOR
LETHAL BLOW
APN coverage of
misery in
Rohilkhand, UP
You dont need abject misery, praise Modi for having taken
a good decision.
to be an expert Why?
or an economist This is an area into which most pundits
have feared to tread. But let me hazard an
to understand analysis. Leading international economists,
that when you among them Bharat Ratna and Nobel
Laureate Amartya Sen, Manmohan Singh,
empty a Swarajya editor R Jagannathan, Paul
cash-based Krugman, Prem Shankar Jha and the RSSs
economy of the own Swadeshi ideologue, the venerable
Govindacharya, have condemned Modis
cash which move as a disastrous example of self-
oxygenates it defeating economic adventurism. So have
burgeoning posts on social media.
and have
no back-up
G
overnment spin doctors, in a bait-
ventilators, its and-switch con game, have
changed the goalpost from demon-
lungs collapse. etization to digitalization. All may be miss-
ing the point. Modis opponents cannot
fight or defeat him politically, nor his pro-
pagandists defend him economically,
because his stake is not party politics or
economic policies but his own personal
religion. It is his own cunning experiment
with his own version of the truth, no matter
how perverse you may find it.
Theres another home truth about the
art of propaganda: The more far-fetched
the lie, the greater its credibility. The same
holds true for analogies. The current one
4 December 31, 2016
doing the rounds is the forbearance of the
brave Indian jawan standing for days
guarding our borders as against the churl-
ish impatience of those having to stand for
a few hours in bank queues.
On the face of it, this is an inane non-
sequitur. It is like telling a passenger being
crushed to death in an overcrowded bus to
stop complaining because a brave Indian
astronaut is sitting cramped for months in
an ISRO spaceship circling the earth.
Actually, here too, the Modium is the
Message. The NAMO appeal is subliminal:
Since black money funds terror, the com-
mon man at home is also a soldier who
must suffer the same privation at home as
the jawan on the LoC in fighting this com-
mon enemy; to complain is, therefore,
unpatriotic and anti-national.
Forget the political motives or the mac-
ro-economic debate for the moment. This
is pure political theatre at its best, aimed at
testing Modis personal strength and his
capability of imposing his writ and will
on the nation. The dialog is sprinkled with
buzzwords like renunciation, faqir and
sacrifice, which have a far greater reso-
nance with ordinary Indians than the
macroeconomic arithmetic of `15 lakh
crore vs `5 lakh crore etcetera.
Modis is a clarion call for class warfare,
not of the physical kind, but of the psycho-
logical genre in which the worker, standing
endlessly in queue, is relishing a revenge
against the fat cat who Modi says stole the
common mans money and impoverished
him by stashing it into black cash which he
is now being forced to surrender while also
being punished for it.
Many of those in queues will beat their
chests over what they have been reduced to,
yet at the end, repeat but Modis intentions
are good, out of fear of retaliation. Some
are paid BJP workers instructed to hog the
camera space. Not surprisingly, the most
vociferous pro-Modi voices when you turn
the camera on them are known black-mar-
keters and merchants. Ask the person in
queue whether he sees any of the black
money merchants waiting in the lines and
the universal answer is an emphatic No,
Only The Poor Are Suffering Because The
People With Black Money Were Tipped Off
By Bankers And Politicians And Have
Already Converted Their Loot.
O
f course, theres an irony! The con-
tradictions are obvious! The suf-
fering is for real. The economists,
Left and Right, predicting long-term eco-
nomic chaos may well be right. But in my
view, all this is inconsequential to Modis
theatre. At a political level, it has dramatur-
gical and symbolic perfection that strikes
deeply into the Indian psyche. It is a bril-
liant pre-modernist idiom which even
Guru Golwalkar and the wise men of Nag-
pur could not master.
In Gandhian idiom, Modi, no matter
how colorful his expensive attire, is still the
revolutionary naked faqir (Gandhi) who
destroyed the well-clad Churchill. In reli-
gious terms, he is the Buddha-like seeker,
the tyagi who left his wife and family
and suffered terribly to seek the truth to
end Kalyug.
His crusade against the Kalyug of Black
Money resonates with many Indians with
Gandhis culture of satyagraha which
involves the masses in a ritual of self-sacri-
fice, a yagna as Modi called it, of self-fla-
gellation, a participation in purification to
achieve freedom from oppression. During
the Swadeshi Movement against the Bri-
Modis crusade
against the Kalyug
of Black Money
resonates with many
Indians with
Gandhis culture of
satyagraha which
involves the masses
in a ritual of self-
sacrifice, a yagna...
to achieve freedom
from oppression.
Udayshankar
tish, millions of Indians voluntarily burned
their British-made garments in public bon-
fires: As Modi told a recent audience: I am
a faqir. I will sling my jhola on my back and
move onI have nothing to lose.
The subliminal message is just as you
suffered with Gandhi to get rid of slavery
under White Raj, you are now suffering
with me to get rid of your serfdom to Black
Money Raj. As one wise friend observed:
He has people believing in not only a bet-
ter tomorrow but a more self-righteous
tomorrow. The catch: The time-frame
within which the hopes he holds out may be
belied is shorterthat is his risk in his pri-
vate experiment.
So, its NOT the economy, stupid! Or
will Modi be proved wrong?
Footnote: There is one crucial difference.
The masses never saw Gandhi seeking
power for himself. His satyagraha was to
empower others.
editor@indialegalonline.com
INDIA LEGAL December 31, 2016 5
 DECEMBER 31, 2016
VOLUME. X ISSUE. 8
Editor Inderjit Badhwar
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Economic Emergency 20
The focus of the governments demonetization drive has shifted suddenlyfrom
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Bhutans Rocky Road
A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 This Himalayan kingdom, too, is affected by demonetization which has impacted
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MP Babus in a Fix
Former Union Carbide chairman Warren Anderson escaped the clutches of law for
38
ALLAHABAD: Leader Press, 9-A, Edmonston Road,
Civil Lines, Allahabad-211 001. the Bhopal gas tragedy. But the then collector and SP have been issued summons

6 December 31, 2016

BJP Flounders in Gujarat 41 AVIATION
A new political axis emerges as OBCs, Dalits, Muslims and Patidars
join hands to take on a government that is lurching from stir to stir
Dogfight in the Skies
A move by the DGCA to cancel the licenses of pilots who feign sickness
66
POLITICS has rebounded with pilot unions serving the regulator with a legal notice

Polls in Notebandi Times 44 MEDICINE

Political parties gear up for the big fight in UP in the face of currency
demonetization, caste polarization and law and order issues
LEGAL EYE
Whats in a Name?
WHO has dropped the word counterfeit and replaced it with substan-
70
dard and falsified for drugs in keeping with public health concerns

Jayas Fraught Legacy 48 GLOBAL TRENDS

Her demise notwithstanding, some of the cases filed against

Jayalalithaa over the last 23 years will continue
Britains Caste Divide
The UK governments exercise to have a public consultation on it has
74
stirred a hornets nest. Even in the UK, this is an emotive and ugly issue

Fight for Freedom 51 BOOKS

A judgment in a defamation case involving the kin of the chief justice
and a journalist is set to decide the limits of free speech in Bhutan
FOCUS
Reign of the Tout
Its not the physician but a burgeoning army of middlemen that hospitals
78
are pampering. An extract from Dr Kamal Mahawars The Ethical Doctor

Lawyer, Regulate Thyself 54 SATIRE

With rising instances of verbal and physical intimidation by lawyers,
the Law Commission is now examining the 1961 Advocates Act
When Cash Became Trash
A collection of new vocabulary spawned by cashless, new India
82
Responses ...................................................................8
COURTS
Quote-Unquote ......................................................... 10
58
REGULARS

Frozen Faith Ringside .................................................................... 11

Dilli-Durbar...............................................................12
Though the HC has asked the Haryana government to take a call on Courts.........................................................................14
the frozen body of Ashutosh Maharaj, a Dera chief, it is clearly reluctant Media Watch............................................................17
National Briefs............... ............................................ 18
International Briefs......................................................77
SECURITY
Wordly Wise .............................................................. 81
Indias Vulnerable Army 62
Repeated infiltrations by terrorists have shown the vulnerability of the
Cover Design : ANTHONY LAWRENCE
Cover Photo : GETTY IMAGES

Follow us on Facebook.com/indialegalmedia
defense forces which need to gird themselves to tackle new realities and Twitter.com/indialegalmedia
INDIA LEGAL December 31, 2016 7
RESONSES

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

This is a hasty and a very foolish step without
considering its consequences, especially in the
unorganized sector and for the common people.
We were very much disturbed by the decision of
the PM as it is going to affect the very fabric of
Indian economy which depends on liquid cash.
Prof PC Narasimha Reddy
The hype about black
money and the black
economy was the cre-
ation of armchair
economists like Arun
Kumar and the
Leftists who were
blaming the elite.
Now that the secular
lobby has been
caught with pants
down, the Leftist
lobby is against
demonetization.
They should understand
that the black economy was good for
money-lenders (who bled poor farmers and
laborers), gamblers, match-fixers, extortionists,
illegal hawala operators, etc. What use is money
in cold storage for the economy except during
elections, anti-establishment agitations like India
Against Corruption, stone-pelting, bomb blasts,
riots etc.
Ramaj
With about 80 percent transaction in cash, 70
percent population living in villages and with a
large section of them being illiterate, cashless
economy is a utopian idea. Moreover, in many
villages in eastern India and the North-East,
there is little existence of commercial banks.
Debasish Chatterjee
I consider Professor Arun Kumar a real authority
on black economy. Here also he has analyzed
the issue in a scholarly manner and without
any bias.
R Singh
I dont think his analysis is suited for the current
economy or situation. No one can predict this
new model.
Sivakumar J
With due respect to the author, he seems to be
very affected by demonetization. On a different
note, the background of all the images shows a
lavish place. Who knows where the money came
from to decorate it in such a way?
Manas Mitra
It doesnt require Arun Kumar to tell us the
impact of demonetization, but if it can contain
terrorism and Naxalism even by one percent, its
worth the pain of standing in queues to get our
own hard-earned money, while those with hoards
of black money watch from cars and laugh at us.
As a citizen, I doubt the intention behind
demonetization. The decision seems to be influ-
enced by politics more than economics. That is
why we see that not one of the politicians,
bureaucrats, actors, top industrialists or even
swamis who are the main holders of black
money being arrested.
Anyway, let us wait till December 31 and see
how honest this idea is. Hope Modi hits at the

8 December 31, 2016

root cause. Corruption, lack of transparency,
high taxes, etc, need to be addressed first to
strike at the root.
Vasanth Reddy
Whatever Arun Kumar said is correct. But he
ignored the major impact of the scheme
accountability. In case of suspicion, the money
can be traced. The larger fish cannot get away in
the present scenario as they dont have much of
a choice. One thing thats needed for the country
now is stringent scrutiny.
Roop Chand
I agree with Professor Arun Kumars views. I
feel there are hidden agendas and it is part of a
long-term plan. There is a method in the
madness/cleverness to favor something. May we
expect a white paper by the government on the
sudden proclamation and viciousness of
painting everyone opposing it? Let it be probed
by a JPC.
Arun Singh
If you take out 85 percent blood from someones
body and then put five percent into it, what will
happen? That person will die. Similarly, when you
take out 85 percent liquidity from the economy
and slowly replace it by five percent, the circula-
tion of income comes down. Your facts are not
clear. The government is not hijacking anyones
money. People are allowed to use all the money
they have, only now they will have to check its
use. The government has an eye on everyone
and can differentiate between who is poor and
who is honest.
Alpesh Rathod
On the day of the demonetization announce-
ment, I had `2.7 lakh cash with me. My average
monthly expense is `0.6 lakh. After depositing all
the money, I have drawn `30,000 so far and
found it sufficient. We are used to holding five to
50 times more cash than we actually need and
transact. The perceived problem of liquidity,
based on money in circulation, will not lead us to Please email your letters to:
a logical discussion. You cannot reliably estimate editor@indialegallive.com
or guess the quantum of liquid cash Or write to us at:
Ranjit Kumar India Legal, ENC Network,
A-9, Sector 68, Gautam Buddh
Nagar, Noida (UP) - 201309
Compiled by Puneet Mishra
INDIA LEGAL December 31, 2016 9
 QUOTE-UNQUOTE

We will fight to protect every last American

life. During the campaign I also spent time
with American workers who were laid off
and forced to train the foreign workers
brought in to replace them. We wont let this People send representatives
happen anymore. to speak, not to sit on dharna
or create any trouble on the
US President-elect Donald Trump, on cases like
that of Disney World wherein people were hired on floor. That is D level. Only a
H-1B visas, speaking to his supporters in Iowa few weeks in a year do
parliaments meet.
President Pranab Mukherjee,
expressing dismay over the chaos in
parliament, at a function in Delhi

I salute the people of India for whole-

heartedly participating in this ongoing
yagna against terrorism, corruption and
black money.
Prime Minister Narendra Modi, on Twitter

Congress has only exposed its illiteracy about There is this concept of
the law of the land. They believe that black Paytm. Pay To Modi, thats the
money can be turned into legitimate cash just idea behind cashless econo-
by depositing it in banks. It seems that my. That a few people should
they subscribe to the Virbhadra Singh get maximum benefit from
School of taxation. cash transactions.
BJP spokesperson Meenakshi Lekhi, Congress Vice-President Rahul
in The Times of India Gandhi, in The Times of India

Pakistan is conspiring I am no one or in no position to

to divide India on reli-
gious lines but it will not
succeed. If it does
not mend its ways, it
will get splintered into
10 pieces and India will
have no role in it.
Indian captain's technical deficiencies were not on
Home Minister Rajnath
Singh, at the Martyrs Day
function in Kathua district
question someone elses technique or
faults.... I am not going to sit here and
play sarcastic mind games. I want
to focus on good cricket and that is
exactly what we have done.
Indian captain Virat Kohli, on England teams
last batsman James Andersons remark that the
display because of the docile Indian pitches, in
India Today

10 December 31, 2016

VERDICT
I shall tell you a great secret my friend. Do not wait for
the last judgment, it takes place every day.
Albert Camus, author, 1913-1960

INDIA LEGAL December 31, 2016 11

 DELHI DURBAR

Heres an inside track on

happenings in Lutyens Delhi

Foreign Affairs
The stars seem aligned for foreign secre-
tary S Jaishankar to get an extension when
his term ends next month. He was appoint-
ed on January 29, 2015, just two days
before he was due to retire and since then,
has become one of Prime Minister
Narendra Modis most trusted officials. He
has played a major role in Modis foreign
policy outreach and global agenda and is
also seen as invaluable to National Security
Advisor Ajit Doval. In fact, with foreign min-
ister Sushma Swaraj unwell for most of
2016, it was Jaishankar who dealt with the
PMO. The buzz is that he could even get a
two-year extension till the full term of the
NDA government. His experience and
expertise on China and the US have stood
him in good stead and his views on isolating Pakistan have found favor
Replacing Sushma
Post the successful kidney transplant surgery of
with the PMO. The other officer in line for the job is Anil Wadhwa, ambas- External Affairs Minister Sushma Swaraj, it is
sador in Rome. A dark horse, who is also Modis favorite, is Navtej now clear that the PM will have to undertake a
Sarna, ambassador to the US. minor cabinet reshuffle after the Winter Session
to appoint a new foreign minister. Swaraj has
conveyed to the PMO that she could take as
long as six months to fully recover. There are
important foreign policy related issues coming
up, including a visit by Modi to Israel, the first by
an Indian PM. India also has to deal with the
unpredictable nature of a Trump presidency.
Modi is unlikely, sources say, to promote either of
the two ministers of state in the ministry, General
VK Singh and MJ Akbar, and will opt for some-
one he is close to and can trust implicitly.

Tech-savvy Lekhi
BJP MP Meenakshi Lekhi has spokesperson then, in her own way. She has been active at
been keeping a low profile in the Lekhi had rubbished the RSS headquarters in Delhi instruct-
demonetization debate raging on demonetization as a ing sewaks on going cashless. She has
TV. Reason: she fears being gimmick which was been training them to use smartphones
reminded of the manner in which anti-poor. But and apps like Paytm to carry out their
she had attacked the UPA govern- despite keeping off daily transactions. And many vouch
ments decision in 2014 to with- TV, the feisty MP has that she is not only an effective com-
draw all currency notes issued been helping Modis municator but also teaches well in the
prior to 2005. As BJP demonetization drive matra bhasha!

12 December 31, 2016

COURTS

SC seeks report on Lokpal

law changes
recent hearing, the Court
asked the center to sub-
mit the report of the par-
liamentary standing com-
mittee that had proposed
changes in the Lokpal and
Lokayuktas Act 2013.
The changes were
necessitated after the Leader
of the Oppositions post became
ment, had changed the post to Leader
of the Largest Opposition Party.
The PIL drawing the Courts atten-
tion to the formation of Lokpal was
filed by the NGO Common Cause.
The Apex Court also wanted to be
apprised by the center as to what
other changes were needed to make
Lokpal workable.
The counsel for the center

T he Supreme Court kept up its pres-

sure on the center for constituting a
Lokpal as early as possible. It had dur-
ing an earlier hearing warned that it
would itself form the Lokpal if the gov-
ernment procrastinated further. In a
infructuous after the 2014 Lok Sabha
poll results.
The LoP was part of the committee
under the Act to select the chairperson
and members of Lokpal. The new
Lokpal bill presented before parlia-
informed the Court that the gravity of
the situation was conveyed to highest
echelons of power and reiterated that
the process would be fast-tracked The
matter was to come up for hearing
again on December 14.

Azam Khan to file Court may ban liquor

another apology
S enior UP minister Azam
Khans apology submit-
ted in the Apex Court over
his comments on the
Bulandshahr gangrape
(UP) was not considered
unconditional by the apex Fali S Nariman, who are
court. Khan was asked to
submit another one in tune
with the Courts November
17 order.
Khan had gone on
record saying that the
dastardly gangrape was
nothing but a political
conspiracy.
Attorney General Mukul
Rohatgi and senior lawyer
amicus curiaes in the case
were not satisfied with the
apologys content and told
the Court that it did not go
with its order.
The Court would vali-
date in the next hearing
whether the new apology is
unconditional. It would also
examine whether a person
holding public office could
make disparaging com-
ments on rape and murder
incidents, despite the out-
come of Khans case.
vends on highways
A lthough it did not pass an
order on removal of liquor
vends and signages leading to
coming from the sale of liquor
from such shops outweighed
other concerns did not pass
liquor shops on national and muster with the Court.
state highways, the Supreme Some states like Puducherry,
Court expressed serious concern Punjab, Haryana and liquor mer-
over accidents caused by drun- chants associations tried hard to
ken driving. plead that there was nothing
The Court indicated that it amiss with liquor shops along
may order closure of such liquor highways, but failed to convince
shops in future. The observation the Court. Rather, they were
came while the Apex Court was pulled up for being irresponsible.
hearing a clutch of petitions
seeking amendments to the
excise laws in that regard.
The Court expressed dis-
pleasure over many states failing
to shut down liquor shops on
highways. It pulled up the center
too for neglecting the issue for
almost a decade and crying foul
now. The logic that revenue

14 December 31, 2016

SC clubs two AMU pleas for hearing
T he controversy over the appointment of
AMU vice-chancellor (VC) Lt Gen
Zameeruddin Shah (retd) remained unresolved
as the Supreme Court decided to take it up
again in January 2017. It will, however, also
hear simultaneously the arguments on whether
AMU is a minority institution, thus slotting both
the petitions together.
Shahs appointment was challenged by
Syed Abrar Ahmed in the Allahabad High Court
on the ground that all UGC stipulations in this
regard were flouted with impunity. While the
High Court had struck down the plea, this was
later taken up by the apex court.
Ahmeds counsel pleaded that AMU could
not bypass UGC guidelines, being a central
university. According to the UGC laws, a
VC of a central university must be a dis-
tinguished academician with at least 10
years experience as a professor or hold-
ing an equivalent position in an aca-
demic organization.
The counsels for AMU and Shah
countered that AMU had been perceived
as a minority institution over the years
and a renowned Muslim person had
been always been at the helm.
The center, however, stood by the
Supreme Court verdict delivered in
1967, which said that AMU was a cen-
tral university as it was born through an
act of parliament.

Stringent law on reckless driving

T he Supreme Court pointed out that the
current punishment (two-year jail term,
a fine or both) for causing death due to rash
and negligent driving was too soft a deter-
rent for reckless drivers.
There has to be a fear of law among
the people the Court said. It directed the
center through its counsel Mukul Rohatgi to
look into Section 304A of IPC closely in
terms of a much severe punishment and
respond within 8 weeks. The Court pointed
out frequent deaths and disabilities wrought
by drunk-driving accidents.
Earlier, the Court had rapped the center
for not acting on its order to amend Sec-
tion 304A.

No tax for putting palace on rent 10 (19A) had awarded tax exemption for
the palace and it could not be interpreted
differently and even lashed out at the IT

R ulers of princely states got relief from
the Supreme Court, which ruled that
money earned from putting a part of their
palatial properties on rent could not be
taxed by the income tax authorities. The
Courts observations came during the hear-
ing of a plea of a ruler of the erstwhile prin-
cely state of Kota. He had given out a por-
tion of his Umed Bhawan Palace on rent.
The IT department had kicked off the
process of tax calculations on his income
from rent in 1984. This was despite the
centers declaration that such properties
could not be included in the income tax department for its action.
bracket through Section 10 (19A). The
Commissioner of Income Tax and Income
Tax Appellate Tribunal had disapproved
the action of the IT department.
Thereafter the department had
approached Rajasthan High Court, which
upheld the action of the department, rul-
ing that the Kota ruler could not put a por-
tion of his palace on rent and yet claim
tax exemption; that was possible only
when he occupied the entire property.
But the Apex Court ruled that Section

INDIA LEGAL December 31, 2016 15

COURTS
Twist in
divorce law
I
n a significant ruling on
divorce among Hindus, a full
bench of the Bombay High
Court has said that divorce
decrees awarded under the
Family Court Act could be
contested within 90 days,
as mentioned in the Hindu
Marriage Act 1955. The
previous time-limit under
the Family Courts Act, 1984,
was 30 days.
The verdict lays to rest the
confusion between the two
laws. The High Court had ear-
lier referred the matter to a
larger bench to clear the
confusion.
The verdict will come as a
relief to couples who have
been divorced by family
courts and want to appeal in
higher courts.
16 December 31, 2016
Triple talaq is unconstitutional
E ven as the Supreme Court is yet to
take a call on the constitutional
validity of triple talaq, the Allahabad
High Court has ruled that the practice
is cruel, discriminatory, against the
constitution and denies rights to
Muslim women. It further added that
personal laws of any community cant
take precedence over the Constitution.
The Courts views echoes the
stand taken by the center in the
Supreme Court.
The Courts observation came
Show respect to National anthem
A ll patrons must stand up as a mark of
respect when the national anthem is
being played in cinema halls, the Supreme
Court ruled. The Court also made it
mandatory for theaters to show the nation-
al flag on screen while the anthem was
being played, before a movie starts.
The Court wanted to inject a feeling of
committed patriotism and nationalism
among Indians. It also ruled that neither
Delhi HC clarifies copyright laws
A division bench of the Delhi High Court
ruled that Rameshwari Photocopy
Serviceaccused of copyright infringe-
ment by five international publishers for
photocopying their books as DU course
material could not be held guilty as it
was done for educational purposes. While
pointing out that it was the purpose and
utility that mattered, the Court allowed it
to photocopy unlimited text if deemed fit by
Compiled by Prabir Biswas, Illustrations: UdayShankar
while hearing a petition filed by a cou-
ple from UP who sought protection
from harassment. During the hearing,
the Court came to know that the hus-
band had a previous wife whom he
had divorced through triple talaq.
Woman cannot remain at the
mercy of a patriarchal set-up.
Triple talaq has been deprecated and
not followed by all sects of Muslim
community. It impedes and drags
India from becoming a nation, the
Court said.
should there be commercial exploitation or
dramatisation of the anthem, nor should it
be used for entertainment purposes. And
doors of cinema halls cant be kept open
until the anthem ends, the Court made it
clear. In later rulings, the Court declined a
request for an order to play the anthem in
courts, gave a relaxation for the disabled
and posted the hearing against its anthem
order to February 14.
the course syllabus. The matter has been
sent back to ascertain whether education
was indeed the purpose.
Five international publishers had earlier
approached the Court alleging that distribu-
tion of coursepacks by the shop in Delhi
University was a copyright violation. A
single bench hearing the plea did not
agree. The publishers then approached a
larger bench.
 MEDIAWATCH
Anchors Aweigh!
pen magazine has opened a can
O
of worms with its cover story on
demonetization in its November
18 issue. Titled Freedom at Midnight, the
piece, written by PR Ramesh, the maga-
The NewsX Saga
ewsX, the channel started by
N
Peter and Indrani Mukerjea,
could soon see yet another
change of ownership. The news chan-
nel is currently owned by Information
TV (ITV), run by Kartikeya Sharma
(with Rahul Shivshankar as editor).
The acquisition was the third change
of ownership. Peter and Indrani, cur-
rently in police custody, had run into
financial trouble and sold their stake
to Jehangir Pocha and Vinay Chajlani.
Pocha (now deceased) was widely
believed to be a front for Niira Radia (the
Radia tapes clearly suggest as such),
while Chajlani is from the Nai Dunia news-
paper group. ITV had bought them out to
add to its media presence which includes
the Hindi news channel India News. Now,
it appears that Rajat Sharma of India TV is
Dissenter in DD into a controversial tangle.
The journalist, Satyendra
ts rare to hear of a Murli, started getting death
I Doordarshan journalist
getting death threats but
that is precisely what has got
threats after he addressed a
press conference at the
Press Club of India on
the state-owned broadcaster November 24, and declared
zines managing editor known for his
access to the finance ministry, carried the
sensational claim that an anchor at NDTV
was being questioned by Income Tax offi-
cials over the source of funds for his
recent purchase of a house in
Chanakyapuri. Ramesh did not name
anyone but as most of NDTVs anchors
are female, the list of potential buyers
(if the story is true) is relatively small.
For those unfamiliar with Delhi,
Chanakyapuri is the capitals pampered
diplomatic enclave where property prices
are stratospheric. There has been much
speculation in media circles about the
anchors identity unless, of course, it is a
case of someone high up in the ministry
getting back at NDTV for personal reasons
or as part of official knee-jerk attacks on
independent media.
looking to get into the English news chan-
nel space and is reportedly in talks to buy
a majority stake in NewsX. Sharma is con-
sidered close to the powers-that-be and
his channel is among the more profitable
in the Hindi news space, just behind Aaj
Tak. Both sides are keeping their cards
close to their chests but sources confirm
that talks are on.
that Prime Minister Narendra
Modis address to the nation
announcing demonetization
was actually a recorded
message and not live. If true,
that would put a dramatic
new spin on the demonetiza-
Noise about Arnab
he favorite guessing game, and
T not just in media and government
circles, is what will Arnab
Goswami do next? It is now known that
Rahul Shivshankar from News X, who
once worked under Arnab at Times
Now and is pretty much a clone in
terms of anchoring style, will move
back to take the studio chair vacated
by Arnab. The latest buzz is that Arnab
is close to finalizing a deal involving
Rajya Sabha MP Rajeev
Chandrashekar and Rupert Murdochs
Star TV. Bangalore-based
Chandrashekar is an entrepreneur
whose company Jupiter Capital owns
and operates media companies includ-
ing Asianet News, Kannada Prabha and
Suvarna News 24X7. He also has radio
stations but he has always wanted a
national media profile and Arnab gives
him that opportunity. A tie-up with Star
TV will offer the perfect troika as Uday
Shankar, Star TVs CEO, is essentially a
newshound and once headed what is
now TV Today, the television news bou-
quet from the India Today group. Talks
are reportedly on and it is certain that
Arnab will not just be the lead anchor
and CEO of the new channel but also
have some equity in the venture.
Watch this space.
tion narrative. Ever since, the
journalist has been inundat-
ed with hate mail and threats
and has also been hauled
up by his bosses and ques-
tioned about his sources and
motives.
INDIA LEGAL December 31, 2016 17
NATIONAL BRIEFS

Former IAF chief arrested

in VVIP chopper scam
ormer Indian Air Force chief, Air Chief
F Marshal SP Tyagi (retired), and two
other key accused have been arrested for
criminal conspiracy and illegal gratification
charges by the CBI in the 2005-06 VVIP
chopper deal scam. Tyagis cousin Sanjeev
(Julie) Tyagi and lawyer Gautam Khaitan
are the two others in custody. Tyagi is
accused of tweaking technical require-
ments of the tender for copters to swing
the deal in favor of Finmeccanica sub-
sidiary Agusta Westland. This is the first
time that a former armed forces chief has
been held for corruption

Seven vacancies to be filled after CJI joins

eaded by CJI TS Thakur, the vacancies would arise following

JS Khehar H Supreme Court collegiums post-

poned recommending names of
Thakurs retirement next month. After
January 3, the collegiums would
judges to be appointed at the comprise the new CJI JS Khehar,
is the next CJI Supreme Court till the new CJI joins
office on January 4, 2017. Seven
Justice Dipak Misra, Justice Jasti
Chelameswar, Justice Ranjan Gogoi
ustice Jagdish Singh Khehar has been recom- and Justice Madan B Lokur.
J mended to be the 44th Chief Justice of India.
He will succeed Justice TS Thakur who will demit
News of internal grouse
is doing the rounds with
office on January 3, 2017. Khehar served as the Justice Chelameswar not
chief justice of Uttarakhand High Court and attending any meetings
Karnataka High Court and was the acting Chief since September after
Justice of Punjab and Haryana High Court twice. complaining of lack of prop-
When he takes over, he will be the first Sikh to er framework for discussion
occupy the important post. and recording of views by
Khehar had presided over the five-judge consti- members who are in the
tution bench that struck down the controversial zone of consideration for
National Judiciary Appointment Commission being recommended
(NJAC) Act for the appointment of judges as for appointment as
unconstitutional. SC judges.

Capt Amarinder under I-T lens

he income tax authorities have
T accused Congress party member
and former chief minister of Punjab,
Captain Amarinder Singh, of giving a
false statement on oath in relation to a
foreign registered trust and properties
abroad. The trust was set up by his son
Raninder Singh. Earlier, Capt Singh was
questioned by the income tax depart-
ment regarding these properties. Capt.
Singh has said that this move is simply
due to political vendetta against him by
finance minister Arun Jaitley. He said
that the matter is now in court and the
income tax department and Enforcement
Directorate have not been able to
substantiate the charges for the
past two years.

18 December 31, 2016

CBI chargesheets Dayanidhi Maran
he CBI has filed a
T chargesheet against
former telecom minister
Dayanidhi Maran, his brother
Kalanithi Maran and others for
allegedly setting up an illegal
BSNL phone exchange at the
formers residence. The others
named in the chargesheet are
the former minister's then per-
sonal secretary and two BSNL
chief general managers (now
retired). The CBI, which
alleges a loss of `1.78 crore
to the exchequer, has invoked
provisions under the Indian
Penal Code and the
Prevention of Corruption Act.

Indira Jaising NGOs Minister assures no interference

license cancelled ecently, law minister Ravi Shankar Prasad
R insisted that the government has no inten-
tion of interfering with judicial appointments.
He said this on December 7, in response to a
question ont Agenda Aaj Tak as to why elect-
ed governments want control over the judiciary.
Prasad cited Dr BR Ambedkars remarks dur-
ing one of the Constituent Assembly debates
saying that they did not wish the power to
appoint judges to remain with one single hand.
The judiciary and the government have not
been able to agree, so far, on the details of the
memorandum of procedure to appoint judges.

icencse of noted lawyer Indira

L Jaisinghs NGO Lawyers
Collective has been permanently
EC pitches for amendment
hief Election months to two years. The
cancelled for alleged Foreign
Contribution (Regulation) Act viola-
tions. The Home Ministrys order
C Commissioner Nasim
Zaidi wants the law to be
changes can be made via
an ordinance as there is
claimed they had received foreign amended to make shortage of time, he has
funds between 2006-07 and 2013- distribution of money suggested. He also pro-
14 when Jaisingh was the among voters by candi- poses that paid news
Additional Solicitor General of India. dates, their agents and be made an offense
In a statement issued by the NGO, supporters, a cognizable under the Representation
it termed the order as preposter- offense so that offenders of the People Act, and the
ous and further said strangely can be arrested without punishment for filing of
enough, the order is passed on a bail. He also wants the false affidavits be
Sunday, when government offices prison sentence enhanced from six
are closed. enhanced from six months to two years.

BJP leaders held in West Bengal with cash

est Bengal BJP leader
W Manish Sharma has been
arrested by Special Task Force
(STF) and `2,000 notes worth
`33 lakhs were seized from him.
The STF also took several sus-
pected members of the coal being fielded from Raniganj
mafia into custody. Before
Bengal went to polls, the then-
because of his strong financial
power. In another incident, a
state president of the BJP BJP youth leader from Salem
minority cell, Shakeel Ansari, was arrested with bundles of
had alleged that Sharma was `2,000 notes worth `20.55 lakh.
Compiled by Sucheta Dasgupta, Nayantara Roy and Usha Rani Das
INDIA LEGAL December 31, 2016 19
LEAD/DEMONETIZATION/IMPACT

The Plot
Unravels From fighting black money to leading
the nation into a cashless era, the
governments demonetization drive
has taken a sharp turn, plunging the
nation into troubled times
By Ajith Pillai

F
ROM fighting the scourge of
black money to heralding a
brave new cashless digital era,
the governments demonetiza-
tion drive has seen several
sharp twists and turns. As
many as 50 new announce-
ments have punctuated the one month since
the `500 and `1,000 currency notes ceased
to be legal tender from November 9.
The rash of revisions and counter-revi-
sions pertaining to the defunct currency and
the terms of returning it is seen by many
within the government as a manifestation of
the abysmal lack of planning that went into
the exercise. The aftershocks of Indias finan-
Anil Shakya

20 December 31, 2016

cial 9/11 continue to shake the nation as it
enters the second month of disruption with-
out a pause.
The confusion within the government
was best explained to India Legal by a fin-
ance ministry official. None of us knew any-
thing about what was coming. We first heard
of it on November 8 when the PM made the
announcement. I dont think even at the sec-
retary level, people knew about it. The entire
decision-making process was bypassed. One
understands that demonetization was not
discussed in the cabinet or at the Cabinet
Committee on Economic Affairs (CCEA). We
were simply shocked, although many of us
wondered at the outset as to how demoneti-
zation could help fight black money. But we
thought the entire plan must have been
thought through. Now we know it was not.
Demonetizations
downside
KEPT IN THE DARK
In fact, there is a buzz within the bureau-  If GDP declines by 2
cracy that perhaps even Union Finance percent, as predicted by
Dr Manmohan Singh, it
Minister Arun Jaitley was kept in the dark
translates into a loss of
till the very last minute. This speculation has around `3 lakh crore. If it
gained a degree of legitimacy after West goes down by 3.2 per
Bengal Finance Minister Amit Mitra revea- cent, as suggested by oth-
led to TV host Karan Thapar in an interview ers, then the loss would be
on December 8 that a senior cabinet minis- about `4.75 lakh crore.
ter had told him how the entire cabinet was  Demonetization could
kept out of the loop. take away 4 lakh jobs in
the next one year. Sectors
Said Mitra: I must confess that
where jobs will be affected
include e-commerce,
luxury goods stores, shop-
ping malls, textiles and
garments industry, tourism,
hospitality business and
aviation.
 Employment opportu-
nity in the unorganized
sector, which accounts for
over 90 percent of Indias
work force, is fast drying
up. Those affected are
in the agriculture sector,
fisheries, construction
work, manufacturing and
services.
 Several hawkers and
those plying trade have
seen a sharp drop in busi-
ness. Many have had to
return to their villages.
 Several sectors are
bracing for a downturn in
business, including small-
scale industries, leather,
automobiles, real estate,
diamonds and gems,
cement, steel, consumer
durables, FMGC and the
retail business.
 The rural economy is
reeling under the shock of
notebandi. Farmers are
GAME OF PATIENCE finding it difficult to sell
Waiting for hours in their produce at mandis
queues to get `2,000, only because of the cash
to return empty-handed on crunch. Organizing funds
many occasions, added to for inputs like fertilizer has
the frustration of people become very difficult.
INDIA LEGAL December 31, 2016 21
LEAD/DEMONETIZATION/IMPACT
ECONOMY IN
REVERSE GEAR
(Clockwise from above) Lack of
work and demand was visible
everywhere, from daily labor to
jewelry showrooms. People
skipped their offices or
household duties to stand in
queues for cash
22 December 31, 2016
Photos: UNI
a Union cabinet minister said to me that
they (the entire cabinet) were taken to a
room and they thought the PM would speak
to them. But that did not happen. Instead,
they saw the Prime Minister on the TV scr-
een making the announcement to the entire
nation. They heard about it (demonetiza-
tion) like all of usat the very same time.
When asked about the identity of the
minister, Mitra said he was referring to a
very senior member of the cabinet and that
he had met him at a GST Council meeting in
Delhi in the first week of December.
The inference drawn by many was that the
minister in question could be none other
than Jaitley.
A day after Mitras disclosure, a Reuters
report surfaced throwing light on the man
behind the demonetization drive. He was
identified as Union revenue secretary Has-
mukh Adhia. A 1981 batch IAS officer, he
was principal secretary to Narendra Modi researchers operated out of 7 Race Course
from 2003-2006 when the latter was Guja- Road. They comprised the team that plann-
rat chief minister. Adhia, a gold medalist ed the demonetization exercise and included
from IIM-Bangalore and a PhD in Yoga from data crunchers and those associated with
Swami Vivekanand Yoga University, Ban- Narendra Modis social media campaign in
galore, enjoys the trust of the prime minister. the 2014 general elections.
Adhia took over as revenue secretary in According to sources, the group zeroed in
September last year and officially reported to on demonetization for the following reasons:
the finance minister. But for all practical (a) it would root out black money by render-
purposes, he worked under the PM. He and ing undeclared income in high denomina-
five others, sworn to secrecy, and a team of tion notes invalid and unusable; (b) ensure

liquidity in banks reeling under Non-Per-
forming Assets amounting to over `6.30
lakh crore; (c) it would derail the election
plans of opposition parties and immobilize a
big chunk of their funds in two key poll-
bound statesUP and Punjab.
D-DAY ADVANCED
The original plan was to explode the D-
Bomb on November 18, a Friday. It was felt
that this would give a breather to banks to
swing into action over the weekend. How-
ever, the date was advanced to November 8
because of fears that the news may be leaked
to the media and would enable black money
hoarders to convert their loot to white.
Much of the groundwork for the surgical
strike was done by Adhias team. Data on
time taken to print and distribute new notes
was collated. Notes were prepared on the
after-effects of demonetization and how it
would impact various sectors and how banks
would benefit from a sudden inflow of funds.
Everything was factored in except one cru-
cial aspectthe overwhelming dependence
of the ordinary citizen on the `500 rupee in Union revenue
day-to-day financial transactions. secretary
A former bureaucrat in the know told Hasmukh Adhia
India Legal: The calculations were made
(above) and a
rather haphazardly. I believe that if the plan
had been discussed in the finance ministry, team of
the glaring loopholes would have been point- researchers,
ed out. Similarly, had the CCEA been taken data crunchers
into confidence, it would have raised several
and those
objections and pointed out the pitfalls. But
that did not happen. I understand that even associated with
the RBI was informed about the intro- Narendra
duction of new notes but very few people in Modis social
the central bank were aware of the enor-
media
mity, suddenness and scale of the demoneti-
zation exercise. campaign
In retrospect, the black money math was planned the
rather simplistic. It was initially assumed demonetization
that of the `15.44 lakh crore of high denom-
exercise.
ination notes in circulation, not more than
`8-9 lakh crore would be returned to the
banks. The unreturned (about `5 lakh crore)
money would constitute the black compo-
nent in circulation that could be declared
neutralized. This is the money that the gov-
ernment hoped it could leverage for develop-
ment work and to kick-start the economy.
NARRATIVE CHANGES
However, it became clear within a fortnight
of demonetization that no significant amo-
unt of black money has been neutralized. It
became evident by the volume of deposits in
banks that much of the money in circulation
would be returned. So the black money van-
quished through demonetization would not
be big enough to trumpet about and score
political brownie points.
INDIA LEGAL December 31, 2016 23
LEAD/DEMONETIZATION/IMPACT
UNI
SENSING The narrative had to be changed. By
OPPORTUNITY November 20, the punchline was no longer a
Chairman and war on black money. It had changed to a
Managing Director
of RIL, Mukesh
march towards a cashless economy. The
Ambani with Prime prime ministers speeches suddenly became
Minister Narendra less focused on black money, although he
Modi. RIL has continued to berate those who opposed note-
seized the chance bandi as belonging to the corrupt class.
to launch Jio
payments, in a
Meanwhile, a month into demonetiza-
joint venture tion, only 30 percent of the money that had
with SBI been declared illegal was replaced with legal
tender by the RBI. The result: a severe cash
crunch that hit practically every strata of
society, more so the poor. Queues at banks
and ATMs have shown no signs of shrinking
and news that it would take at least six
months for normalcy to return spread panic.
People began to hoard acceptable curr-
ency at home and became austere in their
spendingan unwelcome sign for a growing
economy.
Even the IT raids on black money publi-
cized in the media were due to established
methods of detection and not thanks to
24 December 31, 2016
Jio joins the pack
O n November 10, two days after demone-
tization was announced, a new entrant
to the payments bank sector was incorporat-
ed. The outfit, Jio Payments Bank Ltd (JPBL),
is a joint venture of Reliance Industries Ltd
and State Bank of India. The company
has received initial approval from the RBI to
operate.
The fact that Reliance Jio has tied up with
SBI, the largest PSU bank, is considered sig-
nificant. Many industry sources say that the
demonetization. Whats worse, in many of
the raids, the black money unearthed was in
the new `2,000 notes or its counterfeits. So
the introduction of new currency did not
deter fraudsters.
Frustration soon began to rear its head.
V Ranganathan, a former IIM professor who
initially backed the demonetization drive,
had this to say: I now feel like kicking my-
self. I was among the first to welcome the
initiative on November 9. I thought the PM
and his team had all the logistics worked out
and the plan would roll out in an acceptable
manner. Today I feel like an idiot. And the
unfortunate part is the man on the ground
thinks that the rich guy is getting screwed so
it is worth paying for. The poor sucker does
not know that its people like him from the
lower strata who are getting screwed.
Slowly but surely, the tide began to turn.
A Huffington Post-Business World-C Voter
survey on December 8 across India sho-
wed that sentiment was swinging against the
demonetization drive in both rural and
urban India. While people were highly sup-
portive of the government in the first two
weeks, the continuing cash crunch and
the prolonged disruption of their lives was
testing their patience. However, they still
were with the BJP given the disarray in the
opposition.
ECONOMIC EMERGENCY
The paucity of cash in banks imposed a rece-
ssion and an undeclared economic emer-
gency in the country. The farming commu-
nity is in dire distress with cooperative banks
newly incorporated company may be the
largest beneficiary of the governments
cashless drive given the nationwide net-
work of the SBI.
According to details submitted to the
Registrar of Companies, JPBL has seven
directors on its board, including SBIs
deputy managing director (Corporate
Strategy and New Business) Manju
Agarwal. No date has been fixed for the
formal launch of the bank but its entry is
expected to be a game-changer and a big
plus for the Reliance group.

cashless and non-functional, several small- Nobel laureate Paul Krugman, also a
scale sector units have had to shut shop and Professor Amartya Sen Nobel laureate, calls
the unorganized sector is in total disarray.
Industrial production has plummeted and
described the demonetization a
daily wage earners have no source of employ- governments highly disruptive way
ment. There is chaos all around. demonetization move to deal with the
In fact, one question that looms large in as a despotic action problem of illicit
many minds is this: If the objective of demo-
netization was not fighting black money but
that has struck at the hordes of cash, and
to only transform India into a cashless and root of economy doubts its long-
digital economy, then was it worth all this based on trust. term gains.
pain and suffering?
The government has not been forthcom-
ing in providing answers. Instead, cabinet not clear what significant long terms gains
ministers and party spokespersons have will come of it.
been spreading Modis gospel of a cashless
society across the country. Typically, Comm- HUGE TASK
erce Minister Nirmala Sitharaman described So, what does one make of the march to-
demonetization a digital detergent that wards a cashless economy? Like the fight
would clean the economy. This large, bold against black money, it too is a laudable
and historic initiative was taken by the objective. But a shift from cash to a digital
Prime Minister keeping in mind the long- economy cannot be achieved overnight. It
term economic future of India, she said. will take a lot of doing for a 120-crore plus
Power minister Piyush Goyal described population to embrace a new system of
demonetization as innovative disruption transaction when close to 90 percent retail
while dismissing the criticism of two Nobel transactions are currently in cash. In fact, it
LaureatesAmartya Sen and Paul Krugman could take several years even if the commit-
as views of people who either do not tee set up under Niti Ayogs chief executive
understand the Indian psyche or are seized officer Amitabh Kant takes on the task of
by Modi-phobia. making India a cashless economy on a war
Professor Amartya Sen had described the footing.
governments demonetization move as a The following factors point to the enor-
despotic action that has struck at the root of mity of the task ahead:
economy based on trust. And Krugman  In the US which has been encouraging dig-
pointed out that demonetization seems like ital spending for decades, the cash compo-
a highly disruptive way to deal with the nent has only been increasing. A report in
problem of illicit hordes of cash, though it is The New Yorker magazine in April

INDIA LEGAL December 31, 2016 25

LEAD/DEMONETIZATION/IMPACT
CLUELESS quotes official figures and notes that in the
COMMONERS last two decades, US currency in circulation
Cart pullers in
has more than tripled to about $1.4 trillion,
Delhi waiting for
work in the mostly in $100 bills. Given this, can India
aftermath of turn cashless overnight?
demonetization  The Indian spin that we are better poised
to go digital since the number of internet
users in India is higher than in the US is mis-
leading. Figures quoted in the website
Indiaspend note that with 34.2 crore inter-
net users, we may have overtaken the US but
this impressive figure only represents 27-28
percent of our population. This means that
73 percent Indians have no internet access.
Also, of the total 34.2 crore net users in the
country, only 13 percent are in rural India.
 India may have 102 crore mobile sub-
scribers but only 17 percent adults have
smart phones which can download apps.
So the task of turning India digital is stu-
pendous.
 Even the spread of banks is such that of the
1.38 lakh branches, only 47,000 are in rural
India. The spread of ATMs is also skewed
with 90 percent in 16 states and a sizeable
number in urban centers.
26 December 31, 2016
Anil Shakya
 A huge majority of the unlettered popula-
tion do not trust banks and find it inconven-
ient to operate accounts. One estimate is that
80 percent of the population for all practical
purposes are unbanked.
 The push towards a digital economy will
increase cyber crime which India is not
equipped to handle (see accompanying
story).
The digital push will, no doubt, boost the
business of existing and newly formed (see
box) electronic financial payment compa-
nies. Many of them have already begun
reporting a huge spurt in business since
demonetization and have begun to heavily
advertise their services in the media. But
could the drive towards a cashless economy
have been achieved without the pain of note-
bandi? Economic commentator and editor,
TN Ninan puts it rather succinctly: These
objectives (establishing a digital economy
and introducing tax reforms) could have
been done independent of notebandi, which,
at this stage, looks like a bad idea, badly exe-
cuted on the basis of some half-baked
notions. IL
LEAD/DEMONETIZATION/CYBER CRIME
Digital
Dangers
As India attempts to go digital and
cashless in a hurry, threats of cyber
crime haunt banks, traders,
customers and investors
By Ramesh Menon
A
S cash is in short supply post
demonetization, you use your
credit/debit cards wherever you
can. It is nice to carry plastic
money. But watch out for what
can happen. As you type in the details of
your card while shopping online, beware. As
you store passwords in your diary, beware.
You love technology as it makes your life eas-
ier, but beware of the hacker who is on the
prowl in another part of the world watching
every digital move you make.
Online payments are going to open up
lucrative opportunities for cyber criminals
who will trick you into divulging sensitive
banking information before you figure out
that you have been tricked.
With a large illiterate population forced
to use credit and debit cards or even mobile
28 December 31, 2016
phones to transact business, the danger is
real. There are millions of new Jan Dhan
accounts, mostly held by those who cannot
comprehend what cyber crime can do to
their hard-earned money. And this is one of
the biggest threats that India will face as
there is an almost maniacal hurry to go digi-
tal without having constructed firewalls to
protect people.
SPOOFING BANKS
This was evident when news came in recent-
ly that malicious phishing websites had been
created by cyber criminals that could spoof
26 Indian banks and in the process, steal
your banking information and siphon off
your money. These include top banks like
HDFC Bank, ICICI Bank, IDBI Bank and
State Bank of India. Think of smaller banks.

Think of cooperative banks in villages.
FireEye, a cyber security firm from the
US, discovered a new domain called csecure-
pay.com that was registered a couple of
months ago which served fake logins from
the 26 banks. This should worry millions of
India. In its report, 2017 Security
Landscape-Asia Pacific Edition, FireEye
claimed that ATMs, particularly in underde-
veloped countries, were vulnerable as they
continued to use old software which could
easily be broken into by cyber criminals.
When you unsuspectingly navigate to the
URL to get to your bank, you are gently
taken to a page which looks like the one your
bank has. You are requested to enter the
bank account number, pin, mobile number,
email address and other details. As you do
this, malicious software copies crucial data
Illustrations: Anthony Lawrence
from your spoofed online banking page.
Once criminals have this data, a page will Cyberattacks strike
pop up announcing that there has been an
error and you should therefore try after some
Saudi Arabia
time. This often happens in online transac- Saudi Arabias aviation
agency was attacked last
tions. When you log in later, you could well
month by an aggressive
find that you have been robbed off your cash.
computer virus intended to
Here is another alarming incident that disrupt high-profile govern-
should indicate what lies ahead. Cobalt, a ment targets, officials and
group of hackers, recently targeted ATMs experts said. The attack
across Europe making them dispense huge reportedly emanated from
amounts of cash using malicious software. outside the country, and
Such realities should make India realize that used a version of Sha-
while going digital might be a great idea, it moon, malware used to tar-
should not do it in a hurry without creating get the Saudi energy sector
the necessary safeguards. four years ago. The Saudi
government confirmed the
Just a few weeks back, major banks in
latest breaches, reports
India like SBI, HDFC Bank, ICICI Bank,
The New York Times.
Axis Bank and YES Bank blocked over 3.2
INDIA LEGAL December 31, 2016 29
LEAD/DEMONETIZATION/CYBER CRIME
In its report, 2017 Security Landscape-Asia Pacific
Edition, FireEye claimed that ATMs, particularly in
underdeveloped countries, were vulnerable as
they used old software.
million debit cards that were compromised
by cyber criminals. It was one of the biggest
breaches in the financial sector in India.
There is reason to fear.
SUPREME COURT MOVE
As there has been a huge surge of cyber
crime, the Supreme Court recently asked the
center if it was contemplating setting up
exclusive cells to probe such crimes. It
was shocked at the circulation of rape videos
on social media by criminals. With the
government failing to come up with an
answer, a bench of Justices Madan B Lokur
and UU Lalit pointed out that no action
had been taken in the last one year
though the government had said it was
working on it. The Court had taken suo
motu cognizance of the growing number
of cyber crimes in the country after Prajwala,
a Hyderabad-based NGO, had written to the
Chief Justice of India about numerous rape
30 December 31, 2016
videos being circulated
through WhatsApp. It had
directed the CBI to investi-
gate all the cases.
After numerous banks
worldwide were cheated by
cyber criminals, the
Reserve Bank of India ear-
lier this year asked banks
to step up the vigil against
cyber crimes and work out
a security policy. Banks
should also have a system
to exchange information
with other banks and
develop a quick response
system to deal with
increasing cyber crime,
financial fraud and data
theft.
The RBI missive came
after a heist in a
Bangladeshi bank early
this year when cyber thie-
ves issued instructions to transfer $951 mil-
lion out of a Bangladesh banks account at
the New York Federal Reserve. Fortunately,
most of them were declined. But an amount
of $81 million was transferred to a bank
in the Philippines. It was never found. It
naturally shook up the international ban-
king community.
While numerous small Indian entrepre-
neurs are quickly trying to switch to digital
technology to manage payments, it has
opened a new window of opportunity for
cyber criminals. We have seen how they
can swiftly and effectively operate fraudulent
monetary transfers and do counterfeiting
of credit and debit cards. India with its
huge population will definitely be on their
radar. It will be easier for them as India
will have more mobile phones than most
other countries.
Firms that have anything to do with
financial services will now have to
build robust cyber risk management
programs to achieve invincible security.
They have no option but to do this as soon
as they can. Cyber thieves have already
demonstrated how dangerous they can be.
You might just be their next victim. IL
LEAD/DEMONETIZATION/ECONOMY

Note crunch in the

Waiting to wake of demonetization

has hit the economy in
the border districts of
West Bengal. How will

Explode the resulting public fury

be contained?
By Sujit Bhar

T
HE traditional salesmans
pitch goes like this: The
world runs on that one
salesman selling some-
thing somewhere. When
that stops, the world stops.
In the north-eastern dis-
tricts of West Bengal, namely South
Dinajpur, Nadia, Malda, 24 Parganas
THE CASH CRASH
People queue up at a (North) and others, something like this has
bank in Barasat, North happened following Prime Minister
24 Parganas Narendra Modis announcement of banning
`500 and `1,000 currency notes on
November 8. The entire economy of the area
virtually vanished into thin air. Nobody was
selling, no one was buying.
Sure the entire nation is reeling under a
terrible cash crunchas it should when 86
percent of the currency in circulation is
sucked out through a hastily formulated and
poorly implemented policy changebut
these districts near the Bangladesh border
now exist in a virtual vacuum.
The economy of these districts of farmers

32 December 31, 2016

rests on a few verticals. Farming is possibly
the only legal onemangoes from Malda
were once the much awaited summer delica-
cy of all of Bengal, a leading export item that
has seen a massive dip in the recent past.
Malda and its adjoining districts pro-
duced five lakh tons of the fruit per year,
almost five percent of the national output.
But an advisory from Indias Agricultural &
Processed Food Products Export
Development Authority (APEDA) earlier
this year said that the Ministry of Climate
Change & Environment of the UAE was
alarmed at the high level of pesticide found
in fruits and vegetables imported from India.
This effectively shut out the mango export
market to the UAE, where almost 70 percent
of Indian mangoes used to be shipped. This
was the second blow after eastern European
countries banned such exports for similar
reasons last year, before revoking the ban
later. By then, Indian mango exports had
dipped from 63,500 tons in 2011-12 to
43,000 tons in 2014-15.
The other verticals exist in the shadows.
They are: human trafficking into India; cat-
tle smuggling out of India; the growing, pro-
cessing and sale of heroin, and the huge
cash inflow to fund terrorist sleeper cells.
The National Investigation Agency (NIA)
has found this area to have the maximum
number of such sleeper cells in the country.
How have such criminal activities sur-
Much of the estimated `400 crore FICN in
circulation in India sloshes around in the
border districts because this is the main
point through which it enters the country.
vived and even thrived in these areas? The
reason has been a lack of political will, some-
thing that has denied the requirement to
form the required logistics of checks and bal-
ances for long.
It started as simple vote bank politics.
These have been the areas where infiltration
from Bangladesh has been rampant, the bor-
der being extremely porous. Unofficial esti-
mates put this at over 650 people per day.
The interesting part is that many of those
who walked in from across the border would
be immediately welcomed by political par-
tiesthe Left Front during its rule and the
Trinamool Congress (TMC) thereafterwho
not only provided them official identity
papers, such as Aadhaar Cards, voter IDs,
etc., but also turned a blind eye when some
even got to buy land, according to a senior
police officer. Of course, these land deals are
fake, too, because there isnt any land left in
those areas to sell promptly to one who was
SITTING ON A VOLCANO
a foreigner maybe a week before. Scenes from the Kaliachak
Therein lies the catch. Much of the esti- riots that shook Malda on
mated `400 crore Fake Indian Currency January 3
Youtube
INDIA LEGAL December 31, 2016 33
LEAD/DEMONETIZATION/ECONOMY

PARTY ON!
Government doles to
registered pujas
to appease Trinamool
workers have dried up

Mamata Banerjee
is seeking
opportunity in UNI
demonetization Notes (FICN) in circulation in India sloshes hundreds of cattle are driven across the bor-
which could around in this region, simply because this is der, with the BSF unable to open fire because
the main transit point for almost of friendly neighbor restrictions. This has
plunge the state all FICN that enters the country (printed come down with the centers stringent cow
in a deep crisis. illegally in Pakistan and those printed protection policy, hitting the Bangladesh
With large parts of illegally in Bangladesh). Much of all beef industry hard.
such illegal transactions happen in FICN, It had been estimated that about two mil-
the state waiting mostly unknown to the dealers in these cur- lion heads of cattle used to be smuggled out
to explode, she rency notes. each year, amounting to a staggering $600
This is true for the reverse traffic that million-a-year underground trade.
has much to happens across the border, too: that of illegal This black economy had a large FICN
worry about. cattle smuggling. In the dark of the night component, too. Much of this money would
slip through the systems loopholes to the
terrorist sleeper cells. The rest went to
unsuspecting farmers, villagers, tribesmen
and others. With banks few and far between,
such activity flourished unhindered and
uncontrolled.
Black wealth was generated, siphoned off
by the criminally minded within political
parties and not till they reached the banks
(which was rare) did they face any real hur-
dle. People went about their work, growing
poppy on paddy fields, acting as mules to
freshly-minted FICN that had just arrived
from across the border, earning a decent
commission, and sometimes, delving in a
bit of agriculture and also politics.
It has been estimated that in these dis-
UNI

34 December 31, 2016

tricts, quite like in the rest of India, over 80
percent of all transactions were in cash. But,
unlike the rest of India, nearly 40-45 percent
of those cash transactions were in FICN.
And `500 and `1,000 currency notes formed
most of it. The situation post demonetization
is critical.
Here are some of the possible scenarios:
1. Scenario today: Poppy growers had
clashed with the police in the Kaliachak
area of Malda on January 3 this year.
Initial communal flare-up reports were dis-
missed by the intelligence bureau, as well as
by chief minister Mamata Banerjee, and
rightly so, because it was later found that the
police had accompanied some excise officials
and destroyed a large portion of the poppy
crop. This was a no-no as per an unwritten
agreement between the lawkeepers and the
poppy growing mafioso. The mafia, there-
fore, wanted to teach the police a lesson.
Akhil Bharat Hindu Mahasabha leader
Kamlesh Tiwari had, on December 3 last
year, allegedly insulted the Prophet
Muhammad at a Lucknow rally, and this
was used by the mafioso to draw in commu-
nal sentiments.
Future scenario: This time, the mafioso
crops will not sell. There is no money. And
there is little that the law enforcement
machinery can do to contain public (read
mafioso) fury if it erupts.
2. Scenario today: Cattle smuggling yielded
WITHERING BUSINESS
Pesticides robbed Malda mangoes of their biggest
market, the UAE, where almost 70 percent of the
Indian produce would be shipped
No Currency!
The economy of Bengals border districts today
20%
80%
Cash transactions 80%
Fake currency
transactions 46% (of 80%)
Transaction
46%
by banks 20%
a huge black surplus within the local socie- The economy of
ty, and a large portion of that slipped quietly
into illegal cartels, as well as into some the border
undisclosed political coffers. It was enough districts has
to fund social peace and stem
disquiet that was festering in an employ-
been reduced to a
ment vacuum. vacuum with `500
Future scenario: This social security and `1,000 legal
bank and political funding bank has disap-
peared. Quite like in the cities, where the tenders being
syndicates siphoned money out of real banned. Fake
estate ventures and where the ruling TMC
doled cash for locality pujas, a lot of this currency that had
money was redistributed to realize the polit- entered even
ical ambitions of the rulers. A huge law and
order chaos looms on the horizon. Also,
villagers homes is
there being a ban on legal cattle exports, a now useless.
huge inventory will build up in the region,
needing tending to and controlling.
3. Current scenario: FICN has, through the
years, entered the farmers homes, into his
small savings in cash, his insurance against
rainy days and for small seed, fertilizer and
pesticide purchases, his medical bills. This
went hunky dory for so long.
Future scenario: Now, when the farmer
goes to revive his Jan Dhan Yojana account
and deposit those currency notes, he will be
in for a shock when the banks declare them
as FICN. There is absolutely no social safety
net to help the farmers survive this tragedy.
The region is waiting to explode, and no
fire tenders are in sight. Mamata Banerjee
has a lot to worry about as she sets her sights
on New Delhi. IL
INDIA LEGAL December 31, 2016 35
LEAD/DEMONETIZATION/BHUTAN
Rocky Road Ahead
This Himalayan kingdom too is facing a
cash crunch which has affected trade,
tourism and pilgrimages to India
By Ramesh Menon in Thimpu
B
HUTAN, Indias neighbor, is
clearly feeling the pinch of
demonetization. A serious cash
crunch has already affected
border trade. India is Bhutans
largest trading partner and a free trade
regime exists between both the countries.
Indian currency is legal tender in Bhutan
and this Himalayan kingdom is a major re-
cipient of Indian aid and gets around `5,490
crore annually. India also exports electricity,
DIFFICULT DAYS
cement, iron dolomite, gypsum, ferro-alloys
Shops in Paro,
Bhutan. The cash and oranges to Bhutan.
crunch has seriously Demonetization has affected farmers in
affected business Phuentsholing, a town bordering India, and
36 December 31, 2016
Ramesh Menon
they are struggling to sell potato and car-
damom stocks to Indian traders who are fin-
ding it difficult to make cash payments. Af-
ter demonetization, cardamom prices fell
from 900 Ngultrums a kg to 700 Ngultrums
(one Ngultrum is equivalent to an Indian
rupee). The unofficial exchange value of
`100 has now become about 130 Ngulturms
in the black market. There have been re-
ports of border villages in Assam now using
Bhutanese currency so that trade does not
come to a standstill. They fervently hope
that in the next few months, they will be
able to cash the Ngultrums in return for
Indian currency.
TRADING PARTNER
Sources told India Legal that India should
have made some alternative arrangements
to send in new currency notes to Bhutan as
it is a major trading partner and is wholly
dependent on India. Prime Minister Naren-
dra Modi has always stressed on his Neigh-
borhood First policy and said that ties with
neighboring countries would be his first pri-
ority and this would be the cornerstone of
Indias foreign policy.
The Bhutanese Central Bank has directed
banks to freeze withdrawals of Ngultrums by
Bhutanese individuals and companies in ex-
change for demonetized Indian currency of
`1,000 and `500.
Marketing advisor Bhim Raj Gurung of
the Food Corporation of Bhutan said that
demonetization of Indian currency has badly
impacted both the Bhutanese farmers and
the Corporation.
Potato exports from Bhutan to India have
also been seriously hit. According to reports,
there are more than 1,000 metric tons of po-
tatoes waiting to be sold. Hit by the cash
crunch, Indian traders have not been able to
buy it. Many farmers grow only potatoes as
they have been accustomed to deal with this
cash crop. The prices of potatoes have drop-
ped from 50 Ngultrums to 23 Ngultrums
due to the cash crisis.
Also, a substantial amount of business
between Bhutan and India was earlier main-
ly through the barter system. But in recent
times, many small traders come in and do
business using cash. They have now been
seriously affected. Shopkeepers in Thimpu
say that their cash flows have considerably
reduced as they depend a lot on Indian
tourists who have stopped coming. Sanjeev
Mehta, an economics professor at the Royal
Thimpu College, feels that if the tourism and
real estate sectors are hit due to demonetiza-
tion, the GDR rate would dip in Bhutan.
NO PILGRIMS PROGRESS
Demonetization has also affected pilgrim-
ages to India. At this time of the year, many
Bhutanese usually go on a pilgrimage to
India as the harvesting season is over. They
usually visit Buddhist monasteries in
Sikkim, Varanasi, Bodhgaya, Kushinagar
and Sarnath. They are now desperately ask-
ing Indian tourists to give them rupees as
they are unable to garner enough funds for
their pilgrimage. Sonam Tshering, who
works with the Bhutan Broadcasting
Service, was requesting every Indian he met
for some Indian currency as his parents were TRADE CRISIS
scheduled to go to Bodhgaya in mid- Potato exports from Bhutan
to India have also been hit
December. With great difficulty, he managed
due to demonetization
to get `10,000, but it was not enough for a
fortnight-long visit to India and back.
Dechen Zam, a receptionist at Namgay
Heritage Hotel here, said: I have persuaded
my parents to cancel their pilgrimage to
India as I have not been able to gather
enough Indian currency for them."
The Royal Monetary Authority (RMA) of
Sources in Bhutan
Bhutan, the countrys Central Bank, used to said India should
earlier issue `15,000 per person every month have made some
before demonetization changed the rules. It
reduced it to `10,000 per person per month alternative
and then to `5,000. But even this small am- arrangements to
ount is distributed to only 50 people every
day through a lucky dip. Many Bhutanese send in new
travel from all over the country to Thimpu to currency notes to
get this amount as Indian currency can only
be procured at this bank. The RMA has also
the country as it is
asked Bhutanese to avoid travelling on a pil- a major trading
grimage this year. But for faithful Buddhists, partner and is
this is not a solution.
Bhutans Economic Affairs Minister Le- wholly dependent
key Dorji said that Bhutan was in regular to- on India.
uch with the Reserve Bank of India on the
need to replenish `100 notes to tide over the
current crisis. In an interview to Business
Bhutan, a Thimpu-based weekly, he said that
Bhutanese need to be vigilant about being
used by Indian agents in the exchange of
demonetized notes.
It looks like a long haul ahead. IL
INDIA LEGAL December 31, 2016 37
STATES

In the Dock for Former Union Carbide

chairman Warren
Anderson escaped the
clutches of law for the

Andersons Bhopal gas tragedy. But

the then collector and
SP are in legal trouble

Bolting for letting him go

By Rakesh Dixit
in Bhopal

I
T will always remain a mystery
as to who facilitated the breezy
escape of then Union Carbide
Corporation Limited (UCCL)
chairman Warren Anderson, the
main accused in the Bhopal gas
tragedy, out of India 32 years
ago. However, it was never a mystery as to
who executed the order. On December 7,
1984, it was then Bhopal collector Moti
Singh and Superintendent of Police Swaraj
Puri who had escorted him in their official
cars to Bhopal airport. Anderson flew in a
Madhya Pradesh government plane to Delhi
and subsequently, flew off to the US the

UNENDING WAIT
(Left and above) Women survivors of the gas
leak demand justice for their sufferings; the
iconic photograph of a child who died in the
tragedy, by Pablo Bartholomew
Wikimedia/obi

38 December 31, 2016

same evening. Now the officers, long retired,
are in legal trouble.
A
lower court in Bhopal has summoned
them on January 13, 2017, to explain
why they should not be prosecuted
for helping Anderson escape. The UCCL
chairman never returned to India and all
attempts by the CBI to extradite him to face
Indian courts for the worlds worst industrial
disaster proved futile. The disaster, caused
by the sudden release of 40 tons of toxic
methyl isocyanide gas from the defunct
Union Carbide factory on December 3, 1984,
killed over 3,000 and maimed over five lakh.
Anderson, who landed in Bhopal four
days after the gas leak, was arrested and kept
in a guest house. After a few hours in captiv-
ity, he was mysteriously released on an
order from someone higher up. The next
day he flew back to the US and managed to
secure bail from the police. It was alleged
that he had access to a landline phone where
he was detained and used his contacts. He
remained a proclaimed absconder till his
death at a nursing home in Vero Beach,
Florida, on September 29, 2014, at the age of
91. His ghost has now returned to haunt
those who helped him escape.
It was on November 19 this year that
Bhopals chief judicial magistrate (CJM)
Bhubhaskar Yadav passed an order that Moti
Singh and Swaraj Puri should be booked
under Sections 212 (harboring an offender),
217 (public servant disobeying direction of
law with intent to save a person from pun-
ishment) and 221 (intentional omission to
apprehend on the part of the public servant
bound to apprehend) of the IPC. The CJM
had summoned them on December 8.
However, as the judge was indisposed, the
next date for summons has been fixed on
January 13.
Prima facie it is evident that thousands
of people were dying in Bhopal due to leak-
age of poisonous gases and the heads of the
district, the collector and the SP, were using
all their expertise and system to help a crim-
inal escape rather than helping the victims,
the judge said on November 19. He said the
officers helped the main accused escape
without the approval of the court and despite
Union Carbide
Corporation Limited
chairman Warren
Anderson, who landed
in Bhopal four days
after the gas leak, was
arrested and kept in a
guest house. After a
few hours in captivity,
he was mysteriously
released on an
order from someone
higher up.
his being booked under a non-bailable
section (304culpable homicide not
amounting to murder).
T
he order came on a petition filed by
Abdul Jabbar, an activist of the
Bhopal Gas Peedit Mahila Udyog
Sanghthan, in 2010. He did so in the wake of
a national uproar then over the light sen-
tence given to the accused by the Bhopal
CJMs court. Seven accused were sentenced
to two years in prison and fined `1,00,000
each. The accused were prosecuted under
Sections 304-A, 336, 337 and 338 (all relat-
ed to deaths caused by negligence). Victims
groups and activists who had sought more
serious charges criticized the verdict and
said death by negligence is most frequently
used when it involves car accidents and car-
ries a maximum two-year sentence.
The CBI, the Madhya Pradesh govern-
ment and the NGOs working for the sur-
vivors had filed criminal revision petitions
against the judgment before the Sessions
Court, Bhopal, which rejected the pleas on
August 28, 2012. Interestingly, the ex-offi-
cers own statements in the media and vari-
ous panels that probed Andersons escape
were cited by the judge as evidence
against them.
In his book, Bhopal Gas Trasadi ka Sach
(The Truth of Bhopal Gas Tragedy, 2009),
Moti Singh wrote: Anderson did not appear
satisfied and kept on saying that he want-
INDIA LEGAL December 31, 2016 39
STATES
Ex-Superintendent of
Police Swaraj Puri
He told the Union
Carbide Toxic
Gas Leakage Enquiry
Commission that
Anderson was
arrested on the
basis of a written
order but released
on an oral order
that came from
higher-ups.
ed to look at the scenario here (Bhopal) and
to meet with the chief minister. He added:
Despite being told that there was huge
resentment among people and it was not
possible for him to visit anywhere, he
(Anderson) kept on evading the proposal to
leave for Delhi. He agreed to leave Bhopal
only after a discussion of 1.5-2 hours and
only then signed the bail document.
Moti Singh also wrote that Anderson
managed to get away by using a phone in the
room where he was detained. Had we
removed the landline phone from his room,
Anderson would not have escaped. He possi-
bly made calls to contacts in the US to help
him leave India. The US embassy reported-
ly mounted pressure on the Indian govern-
ment, which released Anderson on a person-
al bond of `25,000.
M
eanwhile, Swaraj Puri told the
Union Carbide Toxic Gas Leakage
Enquiry Commission (also known
as the Justice KL Kochar Commission): We
arrested him on the basis of a written order
but released him on an oral order, which he
said came from higher-ups. Puri was
sacked in September 2006 when a case was
filed against him for using an NRI quota for
his sons admission to a college in Indore.
After retirement, he was appointed as a
member of Complaint Regulatory body of
the Narmada Valley Development Tribunal,
but was removed from there also after the
40 December 31, 2016
Abdul Jabbar of
Bhopal Gas Peedit
Mahila Udyog
Sangathan
He filed a plea in
2010 in the wake
of a national
uproar over the
light sentence
given to the
accused by
the Bhopal
CJMs court.
Bhopal court order in 2010.
The Shivraj Singh government is in a
dilemma over the court order on registration
of FIRs against Moti Singh and Puri. After
all, it was the Justice Kochar Commission,
instituted by the state government, which
had given a clean chit to the officers. Though
the report was submitted to the state govern-
ment in February last year, it is yet to be
tabled in the assembly. Sources said that as
per the Commissions report Moti and
Swaraj followed instructions of their seniors.
The report states that then prime minis-
ter Rajiv Gandhi and then home minister
Narasimha Rao had verbally ordered the
Union cabinet secretary to ensure the release
of Anderson. The cabinet secretary passed
on the orders to Madhya Pradesh chief secre-
tary Brahma Swaroop and, subsequently, the
Hanumanganj police station was ordered to
allow Anderson to walk free. Several reports
have suggested that Gandhi was pressured
by the US to let Anderson go.
Senior Congress leader Arjun Singh, who
was then chief minister of MP, wrote in his
autobiography A Grain of Sand in the
Hourglass of Time that home secretary RD
Pradhan had called him on the instructions
of then Union home minister PV Narasimha
Rao. Pradhan denied the allegation, saying
he was chief secretary of Maharashtra at the
time and became Union home secretary only
in January 1985.
The truth will never be known. IL
STATES

Gujarat: BJP Blunders On

A new political axis has emerged in this state as OBCs, Dalits,
Muslims and Patidars join hands to take on a government that
seems to lurch from stir to stir
By RK Misra in Gandhinagar

A POTENT THREAT
Hardik Patel being
welcomed by
supporters
on arrival at
his hometown
Viramgam, after his
release from Lajpore
Central Jail in Surat,
this year
UNI

W
ITH less than a year figuration emerged in the state. A joint rally
to go for assembly of OBCs and Dalits with support from the
elections, the ruling Patels marked the emergence of a new polit-
BJP in Gujarat is a ical axis in Gujarat. Muslims had already
worried lot. Gone is announced their support to the Dalits.
the bravado and blus- Heading these caste configurations is a new
ter that led to the ali- youth leadership which is not in awe of
enation of almost all major caste configura- established political parties.
tions in the two years after Narendra Modi These leaders are: Alkesh Thakore who is
left for Delhi. Instead, anti-BJP groups have spearheading the OBC-Dalit campaign un-
united to take on the Gujarat government der the aegis of the Ekta Manch, Jignesh Me-
which has literally been lurching from one wani who is coordinating the Dalit offensive
stir to another. and of course, Hardik Patel of the Patidar
It was in November that a new caste con- Anamat Andolan Samiti (PAAS). The

INDIA LEGAL December 31, 2016 41

STATES

OBC-Dalit rally had all three voicing their their claims that many states had implemen-
support for the stir. ted more than 49 percent reservations des-
pite a Supreme Court order.
GROWING STIR Where there is a will, there is a way. The
NEW POLITICAL AXIS Realizing that a mere change of chief minis- constitution provides for 50 percent reser-
(Clockwise from below terfrom Anandiben Patel to Vijay Ru- vation of which 27 percent is reserved for
left) Jignesh Mewani is
coordinating the Dalit
panimay not be enough, the government OBCs. Our demand all along has been that
offensive against the earlier this month opened a line of commu- we should be included in the OBCs, said
Gujarat government; nication with Hardik Patel. Predictably, the Hardik to India Legal. The PAAS convener
Alkesh Thakore is opening round of talks between the two par- made it clear that the Patels would resume
heading the OBC-Dalit ties failed with the warring Patels threaten- their agitation if they found the government
campaign; supporters
of Hardik Patel waiting
ing to restart their stir. However, the second lacking in sincerity.
for his release from round on December 8 saw the PAAS delega- PAAS has been demanding reservations
Lajpore jail tion handing over various documents to back for Patidars in government jobs and educa-
tional institutions, setting up of a statutory
For over 16 months now, many social and commission on the lines of the OBC commis-
sion for redressal of their grievances, with-
caste groups have been agitating against the drawal of all cases against Patidar leaders
Gujarat government. This includes the Patels, and initiating penal action against police
officers responsible for atrocities perpetrated
SC/STs, OBCs as well as the Dalits. on them during the agitation. PAAS is also
demanding a compensation of `35 lakh to
the next of kin of all those who lost their lives
during the stir and a government job for at
least one person from each of these families.
The Patidar stir, which started in July
2015, took 14 lives. PAAS activists, including
Patel, were arrested and charged with sedi-
tion. Others were subsequently bailed out.
Hardik was given bail on the condition that
he would leave Gujarat. He has since been
staying in Udaipur, though he has been per-
mitted to shift to Uttarakhand.
Deputy chief minister Nitin Patel said:
The government is bound by the ambit of
constitutional provisions and will discuss
with all concerned stakeholders to find an
amicable solution. A panel of ministers has
already been set up for the purpose and he is
heading it.

CAUGHT IN A BIND
Hardiks demand for the inclusion of
Patidars among OBCs is a treacherous mine-
field for the government. The OBCs, led by
Alpesh Thakore, have already made it clear
that they will not tolerate any dilution of the
quantum of their reservation and have been
muscle-flexing.
Ironically, the issue chosen by them is
liquor prohibition. Though Gujarat has been
dry since its birth, its present lax prohibi-
UNI

42 December 31, 2016

tion policy has become a magnet for anti-
BJP groups to take on the government.
Though touted as dry, Gujarat is as wet as a
watermelon. Thakore has been organizing a
series of public meetings across the state
pointing to the ruinous effects of drinking
and has administered an oath to his follow-
ers to shun liquor. He has been demanding a
Bihar-like strict anti-liquor law. However,
they intend to intensify their agitation from
January next year by taking out awareness
marches through 112 of the 182 Vidhan Sa-
bha constituencies. Clearly, elections are also
playing on their minds.
Such a show of force would normally have
raised the hackles of the BJP government
headed by Rupani. But, realizing the poten-
tial for damage that these groups can do, the
government immediately asked senior cabi-
net minister Bhupendrasinh Chudasama to
promise that the government would seek le-
gal opinion and if need be, table a new bill in
the ensuing assembly session to tighten pro-
hibition laws. This was a departure from the
earlier haughty approach of the government
when glorifying the Gujarat model.
ON THE WARPATH
For over 16 months now, numerous social
and caste groups have been agitating stri-
dently against the government. While the
Patels are demanding reservation in jobs and
education under the OBC quota, SC/STs and
OBCs are on the warpath against any change
in this policy. Dalits have already taken up
cudgels against the government after cow
vigilantes lynched four of them for skinning
a dead cow. And now, the prohibition policy
is another weapon in their armory.
Though the opposition Congress is yet to
get its act together and the Aam Admi Party
is still desperately trying to stitch up some
semblance of a presence in Gujarat, this
caste grouping is clearly giving the ruling
BJP here anxious moments.
The history of communal conflict in Guj-
arat is replete with instances of Dalits bac-
ked by majoritarian caste groups being at
strife with the minority community. How-
ever, this traditional alignment has under-
gone a drastic change in the last 16 months,
more so after the Dalit lynchings in Somnath
Not only will a dent in the Patidar vote bank
cause a setback for the BJP, but if other castes
make common cause it would spell disaster
for it in the 2017 assembly polls.
district which led to a statewide Dalit outcry CRISIS MANAGERS
and forced a change of guard with Anan- (Clockwise from left)
Former CM Anandiben
diben being replaced by Rupani. Muslims, Patel, present CM Vijay
who were at the receiving end of cow protec- Rupani and Deputy CM
tion vigilantes, immediately rallied to the su- Nitin Patel
pport of Dalits with OBCs joining the axis
and the Patidar leadership also announcing
its support. The clock seems to have come
full circle against the ruling BJP which de-
rives its strength from propagation of majo-
ritarian politics.
With the prohibition issue now becoming
a millstone around the BJP governments
neck, efforts to sow dissension among them
have come a cropper. The agitation has virtu-
ally brought the BJP government to its
knees. This was quite a change from its ear-
lier stand where it did everything to subju-
gate the leaders. Hardik was kept in jail for
an extended period, with sedition charges
also slapped against him and others. He was
even forced out of Gujarat on court orders.
But the BJP has had to eat crow now. The
Patidars were the backbone of the BJP. Not
only will a dent in this vote bank cause a set-
back to the party, any likelihood of the three
castes making common cause would spell
disaster for it in the 2017 polls. This could
play havoc with the BJPs chances of return-
ing to power at the center in the 2019 gener-
al elections. IL
INDIA LEGAL December 31, 2016 43
POLITICS
UPs Modern Kurukshetra
As this crucial state goes to the polls next year, political parties gear
up for a royal fight in the face of demonetization, caste polarization
and law and order problems
By Kalyani Shankar
I
T is often said that UP is India
and India is UP. It is also said
that the road to Raisina Hill is
through Lucknow. With assem-
bly polls early next year, it will, no
doubt, be a Kurukshetra as the
stakes are high for all parties, be
it the ruling Samajwadi Party, the BJP, BSP
supremo Mayawati, the Congress and other
stakeholders. Over the past 25 years, the SP
and the BSP have been alternating in UP.
It is clear that this will be a multi-cor-
nered contest as there are no significant
political realignments. Even as parties were
preparing for the coming battle, Prime
Minister Narendra Modi in one stroke
44 December 31, 2016
changed the election scenario not only in UP
but in other poll-bound states such as
Punjab, Manipur, Goa and Uttarakhand by
his demonetization move.
The first response from the opposition
was that Modi wanted to wipe out the cash
reserves of his opponents. The presumption
was that the BJP would have secured its own
funds much before the demonetization
move. Whether this is true or not, the
poll campaign of other parties has been
adversely hit.
SWINGING FORTUNES
In the 2012 elections, of the 403 seats, the
SP swept 224 and 29.29 percent of the vote
Photos: UNI
share. The BSP bagged 61 seats with 25. 91 BJPS GAINS
percent votes, while the BJP won 47 seats The BJP thinks it has a lot going for it in UP. MAKING A PITCH
with 15.21 percent. The RLD, which has At the top of the list is the demonetization (Clockwise from below)
pockets of influence in western UP, won nine drive against black money and the surgical BJP national president
seats, while the Congress won 28 seats with strike on Pakistan in September. A win in UP Amit Shah and others in
13.27 percent vote share. will also give it an upper hand in the Rajya Maharajganj; Congress
vice-president Rahul
In the 2014 LS polls, things changed dra- Sabha where it can push through its eco- Gandhi, Sheila Dixit and Raj
matically. Riding on the Modi wave, the BJP nomic reforms agenda. For a win, the BJP is Babbar in Lucknow; Chief
made a stunning comeback winning 71 of banking on its core votersupper castes and Minister Akhilesh Yadav at a
the 80 seats and 42.3 percent vote share, Banias. It is also hoping to add votes from rath yatra in Lucknow;
decimating the SP and the BSP. The SP won Most Backward Castes (MBCs) and some Samajwadi Party supremo
Mulayam Singh Yadav with
five seats with 22.2 percent share, the Dalits. And the best bet for the party in this UP party president Shivpal
Congress two seats with 7.5 percent vote regard is polarization along communal lines. Singh Yadav and others
share, while the BSP didnt even open its On the minus side, Modi is riding a in Ghazipur
account despite a 19.6 percent voteshare.
The fight next year in UP will be intense
and more so for the BJP. If Modi wants to
win the 2019 general polls, the BJP should
ensure the continuation of his magic. After
1991, the BJP has not come to power on its
own strength. A win in the 2017 assembly
polls will prove that the 2014 win was no
fluke. It will also give more clout to the BJP
in presidential elections due in July 2017.
The BJP is in an advantageous position as
the opposition is not united either at the
national or the state level. The SP had
declined to join an attempted Grand
Alliance on the model of the Bihar experi-
ment in UP.

INDIA LEGAL December 31, 2016 45

POLITICS

prominent MBC leader from the BSP, and

The Congress
poll strategist,
Prashant Kishore
(right) has advised
the party that
unless the
Brahmins come
back, other
castes would
not look at it.
tiger as the cash-crunch has started to pinch
the common man and the BJPs core vot-
ersbusinessmen, traders and rural voters
who supported Modi in the 2014 polls.
Added to that the fact that farmers are also
facing a fiscal crisis during the rabi season.
Also, the BJP lacks local leaders of
stature, which is why it has not announced a
chief ministerial candidate. Although the
names of Union ministers Rajnath Singh,
Smriti Irani, Mahesh Sharma and Varun
Gandhi are doing the rounds, the party
has consciously not projected anyone.
Rajnath Singh is not interested while the
INTO THE BJP FOLD
(L-R) Swami Prasad
others are keen. As part of a well-laid-out
Maurya and plan to get leaders from outside, the BJP
Rita Bhauguna Joshi recently roped in Swami Prasad Maurya, a
Congress leader Rita Bahuguna, a high-pro-
file Brahmin leader. Appointing Keshav
Prasad Maurya as the state party chief
was also a move to consolidate MBC support
against Yadav dominance.
DEMONETIZATION MOVE
Topping the list of election issues is deterio-
rating law and order, followed by corruption.
In this regard, Modis demonetization move
is significant. According to BJP leaders, this
will be the partys key theme in its publicity
blitzkrieg while the opposition may use it as
a key poll plank to highlight the sufferings of
the common man.
Other issues include price rise and infla-
tion and national security showcasing the
surgical strike. Ayodhya too remains a sensi-
tive issue for the BJP. BJP leader Dr
Subramanian Swamy reportedly said: The
Ram (temple) issue is part of our 2014 man-
ifesto, how can we run away from it? We
have to deliver. The Congress party too is
trying to play a soft Hindutva card with
Rahul Gandhi visiting Ayodhya some time
ago. The BJP has already laid the foundation
for issues like triple talaq and the common
civil code.
However, what counts most in UP is the
caste factor. While the BSP succeeded in
2007 in forming a rainbow coalition of
upper castes, Dalits and Muslims, it could

46 December 31, 2016

not sustain it. This party is again looking at
the same coalition for the coming polls. The
Thanks to demonetization, it
is struggling to match the
2012 Assembly elections
MBCs had backed Mayawati in 2007 but campaign of others. 403 seats
she rewarded the Brahmins by giving them The party has lost its core
plum posts. voters, including upper BSP
SP 25.91%
castes, Muslims and Dalits 61
29.29% 224
MUSLIM VOTES and has no credible second-
As for the SP, in 2012, the MBCs backed rung leaders. That was why
Mulayam Singh, but credit for the victory it had to bring in former
went to the Muslims. The BSP and the SP Delhi chief minister Sheila BJP
47
had also attempted to coalesce Dalits and Dixit as its chief ministerial 43 15.21%
RLD 28
OBCs in the nineties but it was short-lived. candidate but she is seen as a +
Others
The alliance of Muslims with some domi- spent force. Its poll strate-
16.32%
nant OBCs remains contingent on political gist, Prashant Kishore, has Congress
tactics. The SP is now depending on its core advised the party that unless 13.27%
vote base of Muslims plus Yadav votes. It is, the Brahmins come back,
however, on a weak ground with this minor- other castes would not look %: Total vote share of party
ity community due to various incidents at the Congress. Kishore,
which occurred during its regime. Also, the who was in Modis poll team
ugly feud in Mulayam Singhs own family is in 2014, has rubbed many 2014 Lok Sabha elections
damaging the party. His son, Chief Minister senior leaders the wrong way
80 seats
Akhilesh Yadav is youthful and driven, and they want him out.
but his own party, father and uncles have He and his team have
undermined him although he has come out reportedly even been told to BJP 5 SP
with a better image. The real fight will be keep away from the 71 22.2%
42.3%
at the time of ticket distribution. Congress 50-day Shiksha,
Coming back to Mayawati, she has Suraksha, Swabhiman cam-
been quietly working hard to make a paign where it will reach out 0 BSP
comeback. She plans to go solo and is to Dalits in some 3,000 vil- 19.6%
counting on a Dalit-Muslim consolidation. lages. The Congress will play 2 2
Demonetization has hit her party the hard- up the deleterious effects of Others
est because Mayawati deals in cash and the demonetization as its main 8.4% Congress
funding is mainly crowd-sourced. In poll plank, along with poor 7.5%
2014, the BSP had submitted to the Election law and order. It has not been able to form
Commission that it had not received a single an alliance along the Bihar model with non-
donation above `20,000. (Donations above BJP parties.
this figure need to be declared.) The BSP has If polls were held today, the fight for the
been weakened in recent times and she number one position would be between the
is now left with Satish Mishra and BSP and the BJP. The SP could slide to third
Naseemuddin Siddiqui as seniors. In some position and the Congress, fourth. However,
ways, a Congress-BSP alliance would make there is no knowing how voters will react.
a lot of political sense but Mayawati is shun- The present cash-crunch could turn into
ning it. public anger.
The Congress is also fighting for survival UP will be a litmus test for all parties.
as it faces a leadership crisis and suffers from And the results of national and local
low morale. The party has been in the elections are often quite different. In 2009,
wilderness for more than 25 years in UP and the Congress did well in the national elec-
is practically non-existent there. It is tions, but in 2012, it failed to convert it into
banking on the dynasty and the anti-incum- a state victory. In the 2014 general elections,
bency factor to get seats. It is difficult for it to the BJP did spectacularly well. Will it trans-
recover from its downward spiral, irrespec- late into victory in 2017? A million-dollar
tive of whether Priyanka Gandhi campaigns. question. IL

INDIA LEGAL December 31, 2016 47

LEGAL EYE

Jayas
Judicial
Battles
The legal battles of Tamil
Nadus late leader have been
legendary and long. While
she won and lost cases
stupendously over the last
23 years, some will continue
even after her demise
By R Ramasubramanian
in Chennai

J
AYALALITHAA is no more. With
her death, Tamil Nadu had lost
one of its most charismatic lead-
ers. The 68-year-old leader will
be remembered for many things,
especially her freebies, be they
laptops, bicycles for girl students,
mixies, grinders and ceiling fans, or her
Amma canteens and Amma pharmacies. She
will be remembered for filing the most num-
ber of defamation cases against her political
opponents and media-persons. But more
than anything else, Jayalalithaa will be
remembered for her constant battle with the
judiciary for the past 23 years or more.
Her legal battles started in 1993 and did
not end till her death. The Supreme Court is
yet to pronounce its judgment in the much DYNAMIC DUO
famous disproportionate assets (DA) case. Jayalalithaa with
There were four accused in this case Sasikala Natarajan
Jayalalithaa, her close confidante Sasikala,
VN Sudhakaran (Jayalalithaas foster son)
and Sasikalas brothers wife, Illavarasi.

DA CASE
Jayalalithaa was charged with amassing
wealth to the tune of `66 crore during her
first tenure in 1991-1996. She and the other
three were convicted for four years by a spe-
cial court in Bangalore on September 27,
2014, in this case. However, the Karnataka
High Court acquitted all of them on May 11,
2015, thanks to some glaring mathematical
errors. The Karnataka government appealed
against this judgment. Incidentally, the case
was dealt by the Directorate of Vigilance and
Anti-Corruption of Tamil Nadu, but shifted
to Bangalore in 2004 on a petition filed by
the DMK. A division bench of the Supreme
Court headed by Justices Pinaki Chandra
Ghose and Amitava Roy reserved its order
on June 7 this year.
Though her legal battles started in 1993,
they picked up momentum from December
1996. Though Jayalalithaa had captured
power with a brute majority of 160 MLAs
in the 234-state assembly, she was routed in Jayalalithaa became CM. This was chal-
the 1996 elections, thanks to allegations lenged by the DMK in the Supreme Court
of corruption. and a five-judge Constitution bench headed
The DMK, which came to power in the by Chief Justice SP Bharucha quashed her
1996 elections, constituted three special appointment as chief minister. The bench
courts to try corruption cases against ruled that a person who cannot contest and
Jayalalithaa and her erstwhile council of be an MLA, cant hold the chief ministers
ministers. Forty-one cases were filed, with post. She, however, won her appeal in the
Jayalalithaa herself facing 12 cases. But she Madras High Court and bounced back as
won 11 cases in whichever court they came CM in March 2002. Jayalalithaa has
up in. The second unseating was on September
27, 2014. A special court in Bangalore con- the dubious
POLITICAL BATTLES victed Jayalalithaa in the DA case to four distinction of
In fact, Jayalalithaa has the dubious distinc- years simple imprisonment and imposed a
tion of losing power twice while being chief fine of Rs 100 crore on her. She was sent to
losing power
minister. The first was in 2001. Jayalalithaa jail immediately. Again, she bounced back twice while
was convicted in two corruption cases by a after registering a stunning victory in her being chief
trial court in February 2001 and hence, not appeal in the Karnataka High Court. Justice
allowed to contest the 2001 assembly elec- CR Kumaraswamy gave a new lease of life to minister. The first
tions. She filed nomination papers from four Jayalalithaa and three others. But the case time was in 2001
constituencies and all four were rejected. will be remembered for its controversial
However, her party, the AIADMK, won a judgment and errors.
while the second
landslide victory and on May 14, 2001, Jayalalithaa once again took over as was in 2014.
INDIA LEGAL December 31, 2016 49
LEGAL EYE
Jayalalithaa hired the services of almost all of
Indias top lawyers. Among them were Ram
Jethmalani (left), Kapil Sibal (center) and
incumbent finance minister Arun Jaitley.
CM, this time on May 22, 2015.
She was also the first chief minister
against whom the governor granted sanction
for prosecution while in office in a corrup-
tion case. This was on March 25, 1995, when
then governor M Chenna Reddy granted
sanction on a private complaint/petition
filed by then Janata Party president Dr
Subramanian Swamy to prosecute her.
This was challenged by Jayalalithaa in the
Madras High Court, but a division bench
headed by Justice M Srinivasan dismissed
her petition and upheld the governors sanc-
tion. However, Jayalalithaa got a stay in the
Supreme Court in May 1995 and the matter
was referred to a Constitution bench where
it is still pending. One of the important ques-
tions raised by the division bench while
referring the matter to the Consti-
tution bench was whether a governor could
grant a sanction like this on a private peti-
tion without the aid and advice of the council
of ministers.
LEGAL LUMINARIES
The protracted legal battles would had cost
several crores for Jayalalithaa if one goes by
the sheer volume of cases she fought in the
50 December 31, 2016
last 23 years. But she hired
the services of almost all
the top lawyers of the
country to argue her cases.
Four former Union minis-
tersRam Jethmalani,
Kapil Sibal, Arun Jaitley
and Ravi Shankar
Prasadappeared for her.
Other legal eagles
included KK Venugopal
(he probably represented
her the most), K
Parasaran, Fali S Nariman,
Rajeev Dhawan, Mukul
Rohatgi, Harish Salve, G
Ramasami (former
Attorney General) and Siddhartha Shankar
Ray. In fact, Ray appeared for Jayalalithaa at
a magistrate court in Bhuvangiri, a taluk in
Cuddalore district, in April 2001. The magis-
trate was also the returning officer of that
constituency. As she was convicted in two
corruption cases, her nomination papers
were rejected by the returning officers.
Anticipating this, Jayalalithaa brought in
Siddhartha Shankar Ray, who travelled over
bumpy roads to reach the Bhuvanagiri mag-
istrates court. However, he lost the case as
the magistrate refused to buy his arguments
and dismissed the nomination papers.
Just the fees paid to the battery of lawyers
would be an interesting topic for any
researcher. Even by a conservative estimate,
it would cross several crores. Rajeev
Dhawan, who appeared for Jayalalithaa at
the special courts constituted by the DMK
government in 1997, frankly speaks about
this in his column to a British newspaper
immediately after Justice Kumaraswami
acquitted Jayalalithaa in the DA case in May
2015: If you want to be in the litigation
business, you have to be rich. Law is cheap.
Lawyers are expensive. For all its majesty,
the law is for the wealthy.
Meanwhile, if judgment in the DA case
implicates Sasikala, it will have huge
ramifications not just for the AIADMK
and Tamil Nadu politics, but for center-
state relations.
The Sword of Damocles does indeed hang
over the state. IL
LEGAL EYE

Photos: Ramesh Menon

I Defamation Case
N the tiny picturesque Himalayan
kingdom of Bhutan, peace and hap-
piness are values that are cherished.
Gross Domestic Happiness is more
important than Gross Domestic
Product. The Bhutanese are proud
of this and it is a concept that only
this country has floated. But peace may be
shattered as a judgment in a defamation case
will determine the borders of freedom and
free speech.
Namgay Zam, a well-known freelance
journalist, has been slapped with a defama-
Hits Bhutan
In a first of its kind, this country has been
tion notice by Sonam Phuntsho, a well- rocked by a case that will determine free
heeled businessman, who has claimed a
compensation of 2.59 million Bhutanese speech on social media. At the center of
Ngultrum for a Facebook post of a doctor
which Zam shared and which he claimed
the row is a spunky journalist who has
had sullied his reputation internationally. taken on the chief justices father-in-law
(One Ngultrum equals one Indian rupee).
Phuntsho, incidentally, is the father-in- By Ramesh Menon in Thimpu
law of Chief Justice Tshering Wangchuk.

INDIA LEGAL December 31, 2016 51

LEGAL EYE
Namgay Zam is Zam was formerly a radio jockey and an
anchor with the Bhutan Broadcasting Ser-
openly taking on vice. She has also been a Humphrey Fellow
the establishment, of Walter Cronkite School of Journalism.
saying that to
secure democracy, NO JUSTICE
Zam had shared a post written by Sasha
one must have the Wangmo, a medical doctor, who alleged that
right to expose her sister and mothers joint property was
those who are fraudulently claimed by Phuntso by forging
corrupt. She has documents. Her attempt at getting justice in
the courts had failed, she alleged, as the chief
initiated a petition justice was the son-in-law of Phuntso.
on Change.org Zam, while sharing it, said that she was
demanding an sharing the post of a brilliant 26-year-old
inquiry into the medical doctor fighting hard to get justice
for her family. The post went viral as she has
chief justice of a huge following.
Bhutan. Earlier, Phuntso had filed a case in the
Thimpu district court saying that he had a
claim on the house as he had bought it. The
court agreed with his claim. Wangmo then
appealed to the Supreme Court where the
High Court judgment was up-held. In the
Court, Phuntso claimed he had paid an
advance of Ngultrum 18 million to
Wangmos sister, Sonam, to buy a property
that she jointly owned with her mother,
Tandin Bidha.
However, both of them contested this
52 December 31, 2016
claim saying that the documents were forged
and so should be sent for a forensic test. But
it was not sent. This has obviously raised
questions in the public mind.
Wangmo then approached His Majesty
Jigme Khesar Namgyel Wangchuck with a
plea that they had not got justice. The king
commanded the Supreme Court to relook
the matter. The case is currently being heard.
The last hearing was on December 12. It will
take a while for the final judgment to come.
Whatever it is, it is bound to create ripples in
the country.
CONTEMPT NOTICE
In both media and social circles, this case is
being debated vociferously. Sources in
Thimpu told India Legal that the chief jus-
tice of the Supreme Court might soon file a
contempt notice against Zam for defaming
the judiciary by sharing the post. Steven M
Ellis of the International Press Institute said
that it raised serious concerns as it could
have a potentially chilling effect on journal-
ists ability to seek information.
Observers in Bhutan say this case will test
the boundaries of freedom of speech and will
lay down parameters of what can be said on
social media. Others see it as a veiled attack
on the media which is in its nascent stages
and struggling to grow. In pri-
vate, journalists say that it could
create a fear about taking an
independent stand or criticizing
the powers-that-be. None of
them want to be quoted. One
senior journalist said that there
is an invisible fear that those
who take a view against the gov-
ernment will be taken to task.
There is self-censorship by the
media as far as criticizing the
government is concerned, many
felt. They also shied away from
talking about the case as the
chief justice was appointed by
the revered king, though he
does so in consultation with the
National Judicial Commission.
Namgay Zam is determined
to fight towards the end. She
told India Legal: Just for
demanding justice and fair play
as well as freedom to vocalize
what is fundamentally wrong, I
have been called anti-national. I
will continue to fight for my basic
rights and democratic values
even if I have to pay a price to pay
for it. We got the gift of democra-
cy from our fourth king, Jigme
Singye Wangchuck, and we must
do everything to protect it and
strengthen its values. I am not
doing it for myself. It is for the
entire country.
A young Thimpu-based jour-
nalist, who did not want to be
named, said: The verdict in the
ongoing case could have some
consequence on social media
users in Bhutan. If the journalist
wins the case, people might think
liberally about freedom of speech.
If she loses, it is likely that
healthy discussions will not take
place due to the fear of being
slapped with a defamation suit. prime minister in October, Zam demanded SILENT VOICES
While freedom of the press is guaranteed that an enquiry be held into the actions of The flip side of the
peaceful kingdom is
in Bhutans constitution, almost all journal- the chief justice. She accused him of violat-
that freedom of
ists India Legal spoke to believed that it did ing his constitutional duty and lacking judi- expression is now being
not really exist and the media with meager cial integrity. threatened
resources was fighting for survival. Investi- No lawyer in Bhutan wants to defend
gative journalism was non-existent. Zam as it is a sensitive case, leaving her to
defend herself. I have made all my submis-
GUTSY FIGHTER sions and fighting it out myself. Lawyers
Though democracy was ushered in 2008 were even scared of talking to me or be seen
after almost a century of absolute monarchy, talking to me. That is the kind of fear we
there is a general feeling that the establish- have today in a free democratic country, she
ment should not be criticized or questioned. said.
Zam says that to secure democracy, one must The case is definitely going to be a land-
have the right to expose those who are cor- mark one as the government is mulling over
rupt. She has initiated a petition on a plan whereby certain controls are put on
Change.org demanding an inquiry into the what will be acceptable on social media.
chief justice of Bhutan. She has also written Tobgay said that while the constitution gives
to the countrys parliamentarians, but noth- the right to freedom of expression, it did not
ing came of it as they refused to be drawn mean that the right of others can be under-
into a case that is in court. mined. Our job collectively is to enjoy our
While Prime Minister Tshering Tobgay rights by protecting the rights of others and
has said that it could be a landmark case, DN to make social media a safe, credible place
Dhungyel, Bhutans information and com- where vibrant discussion takes place. It
munication minister, suggested that restric- should not be a divisive debate that some-
tions on social media could be introduced. times take place and definitely not while
In the letter to parliamentarians and the using an anonymous account. IL

INDIA LEGAL December 31, 2016 53

FOCUS

Crackdown on
With rising instances of intimidation,
verbal and physical, by lawyers in
various courts across the country, the
Supreme Court calls for an urgent
review of the Act under which the
legal profession regulates itself
By Nayantara Roy
N
OT many people have
heard of Mahipal Sin-
gh Rana. Its time they
did. He is an advocate
who has created dubi-
ous history by forcing
the Courts hand into
taking a hard look at the manner in which
the legal profession regulates itself and deals
with errant members.
Rana was not the sole reasonlawyers
have attacked JNU student Kanhaiya Kumar

LAWLESSNESS
Lawyers of the Lucknow bench of the
Allahabad High Court indulged in
violence during their protest against
the killing of one of their colleagues in
February 2016
UNI

54 December 31, 2016

Errant Lawyers
in the Patiala Court in Delhi; their counter-
parts appeared before the Madras High
Court in an inebriated state, and similar
incidents have been witnessed in other
courtsbut it was largely because of Ranas
case that the Apex Court requested the Law
Commission of India to look into the provi-
sions of the Advocates Act, 1961.
In April, 2003, Rana barged into the
Court of the Civil Judge (Senior Division) in
Etah, Uttar Pradesh, and, according to the
complaint filed by the Judge, declared:
Kanchan Singh is my relative and how was
this order passed against my relative? No
judicial officer has ever dared pass an order Getty Image
against me. Then, how did you dare do so?
When any judicial officer passes an order
against my client, I set him right.
He also boasted about his criminal past,
saying: I have relations with highly notori-
ous persons and I can get you harmed by
such notorious persons to the extent I want
to do, and I myself am capable of doing any
deed as I wish, and I am not afraid of any
one. I was prosecuted in two murder cases.
And I have made murderous assaults on
people and about 15 to 20 cases are going on
against me. If you, in future, dare pass an
order on the file against my client in which I
am a counsel, it will not be good for you.
A month later, appearing before the same
UNI
Judge, Rana insisted that another of his
cases be taken up and heard out of turn. 13.5.2003 and of using loud and indecent TAKING MATTERS IN
When the judge refused, he created a com- language both in Court and in his pleadings THEIR HANDS
(top) JNU student union leader
motion in the courtroom. in suit No. 515/2002. Kanhaiya Kumar, accused of
The judge lodged a complaint, which Rana then appealed to the Supreme sedition, was attacked by
eventually reached the Allahabad High Cou- Court where a three Judge bench, on July lawyers on the Patiala
rt for reference. The Allahabad Court sum- 2016, held him guilty of contempt. House premises in Delhi in
moned Rana and after hearing his version, February 2016

held that Shri Mahipal Rana, the contem-
nor, is guilty of criminal contempt in intimi-
dation and threatening Shri Onkar Singh
Yadav the then Civil Judge (Senior Division)
Etah in his Court on 16.4.2003 and
T
he Rana case provided a timely trig- (Above) Lawyers protesting
ger since the court, taking note of var- against those supporting
ious instances of unruly behavior by Kanhaiya Kumar
lawyers across the country, opined: There
appears to be urgent need to review the

INDIA LEGAL December 31, 2016 55

LEGAL EYE
How can errant lawyers
be tamed?
JUSTICE AK SRIVASTAVA suggests ways to ensure that there is
greater discipline in the courts
 District-wise physical scrutiny to
identify the advocates who have
licenses from respective Bar Coun-
cils. A list of such advocates should
be with every Reader of the Court.
The Reader will see whether the
advocate appearing is enrolled as
an advocate or not. This will exclude
appearances by fake advocates.
 The Supreme Court should have
a contempt bench like it used to
have a Green Bench. That will
send a message to advocates who
have a tendency to commit con-
tempt of court.
56 December 31, 2016
lawzmag.com
 The subordinate judiciary should
be protected by the High Court.
The members of the subordinate
judiciary have no roots in the dis-
tricts where they are posted and
thus have no support system.
 Audio video/ CCTV should be
installed in every courtroom so
that there is proof of any ugly inci-
dent. This way, the conduct of the
presiding officer will also be
recorded. This will also ensure
punctuality of the presiding offi-
cer and his conduct throughout
court hours.
CS Vaidyanathan, former additional
He says most professional
bodies have been unable to
take action against erring
members. The miscreants
often form part of the vote
bank of the persons elected.
provisions of the Advocates Act dealing with
regulatory mechanism for the legal profes-
sion. The Court then requested the Law
Commission of India to go into all relevant
aspects relating to regulation of legal profes-
sion in consultation with all concerned at an
early date. We hope the Government of India
will consider taking further appropriate
steps in the light of report of the Law
Commission within six months thereafter.
T
he Rana case, which was essentially
one of contempt of court, was viewed
against a larger canvas because of the
inaction of the Bar Council of Uttar Pradesh.
Ordinarily, the governing bodies of various
professions, such as lawyers, chartered acc-
ountants, doctors, architects etc., regulate
their respective professions by various meth-
ods, including rules to entertain complaints
against errant members and punish those
found guilty, which may include removal
from the profession.
Recently, the conduct of some lawyers in
the district criminal court of Patiala House,
where JNU student Kanhaiya had been pro-
duced, led to them receiving show cause
notices by the Bar Council of Delhi. That
incident, played out in the public eye, sho-
cked many. There have been other recent
instances of lawyers unruly behavior being
in the public eye, such as the lawyers who
appeared before the Madras High Court in
an inebriated condition. It led the Madras
High Court to issue rules empowering the
High Court to debar lawyers who appeared
in such a condition before the Court.
The ball is now with the Law Commi-
ssion, which is examining the Advocates Act,
1961, which deals with such issues. It has
 KC Mittal, former chairman, Justice Ashok K
Bar Council of Delhi
The discussion, he Allahabad and Delhi HCs
feels, should focus He emphasizes
on how to get the that almost 80
existing mechanism percent of the Bar
to function as it is hard-working
should, rather than and disciplined.
in trying to change Only 20 percent
the system. are troublemakers.

sent out requests to the Bar Council of India
(BCI), state bar councils, judges and bar
associations for inputs and suggestions on
how to deal with misconduct.
The BCI has constituted a committee
which is working on a report to be submitted
to the Law Commission. Opinions vary on
the issue. KC Mittal, former chairman of the
Bar Council of Delhi and former president of
the Delhi High Court Bar Association, feels
He says that experience has shown that,
often, those guilty or accused of misde-
meanors form part of the vote bank of the
persons elected thus creating problems for
enforcement and implementation of conduct
rules. Vaidyanathan feels that an independ-
ent non-partisan body should be created
to regulate professional conduct in the legal
profession.

that there is no need to make amendments
to the existing law (primarily Section 35 of
the Advocates Act, governing misconduct by
lawyers). He believes the problem lies with
the individuals who compose the commit-
tees, as in Ranas case when there was lack of
action by the UP Bar Council. The discus-
sion, he feels, should revolve around how to
get the existing mechanism to function as it
should, rather than in trying to change the
system.
He adds that the logic behind the mecha-
nism set out in the Advocates Act which
requires elections to the Bar Councils, was to
democratize the profession and ensure reg-
ulation by people who have experience in the
profession.
Regarding strikes by lawyers, he points
out a mechanism is needed for lawyers to be
able to air grievances for redressal, thus
obviating the need for strikes.
Senior Advocate CS Vaidyanathan, for-
mer Additional Solicitor General of India
and former ex-officio member of the Bar
Council of Delhi, feels that most professional
bodies have been remiss in taking necessary
action against erring members.
J
ustice Ashok K Srivastava, a former
judge of the Allahabad and Delhi High
Courts opines: Almost 80 percent of
the Bar is good, hard-working and disci-
plined. The trouble makers are only 20 per-
cent whose practice is entirely on activities
other than those permissible under the law.
They propagate that they are so powerful
that they can obtain any order from the Sub-
ordinate Courts. They are neither controlled
by the Bar Associations nor the Apex Courts.
The seniors in the Bar, for protecting
their own respect, avoid them for the risk of
ugly incidents. The most unfortunate part is
that many of them get elected as Presidents
and Secretaries in many Bar Associations,
acquiring power to intimidate the judicial
administration in all respects.
He emphasizes that in order for it to be
effective, action against erring advocates by
bar councils and the courts needs to be swift
and stringent. Delayed action only embold-
ens wrongdoers.
Against that backdrop, it seems the Law
Commission will have a complex and deli-
cate task to perform. Its the classic case of
physician heal thyself . IL

INDIA LEGAL December 31, 2016 57

COURTS
Frozen by Faith!
F
Though the Punjab and
Haryana High Court has
asked the state government
to take a decision on the
frozen body of Ashutosh
Maharaj, a Dera chief,
it is clearly reluctant
to do so
By Vipin Pubby
in Chandigarh
58 December 31, 2016
OR nearly three years, the
body of the spiritual chief
of a Dera has been lying in
a freezer inside a sprawling
complex near Jalandhar.
Doctors have declared him
clinically dead but the Dera
followers insist that he is in a state of samad-
hi and will wake up soon. This stalemate has
put the Punjab government as well as the
Punjab and Haryana High Court, which is
hearing a petition in this regard,
in a quandary.
Ashutosh Maharaj, who headed the Divya
Jyoti Jagrati Sansthan (DJJS) and had a
huge following, passed away suddenly on
January 28, 2014, leaving his followers
stunned and grief-stricken. Local doctors
who were called by the Dera staff to attend
on him declared him clinically dead. How-
ever, his followers, estimated to be lakhs,
began gathering at the Dera headquarters
and prevented the media and local adminis-
tration from entering the complex. Fearing a
law and order problem, the administration
ref-rained from taking any action.
ASSEMBLY POLLS
The state government too decided to stay
away from the Dera to avoid a political fall-
out. A majority of the followers belong to the
Dalit community which constitutes 32 per-
cent of the total population of Punjab and
could be a crucial factor in the assembly elec-
tions in February.
In order to avoid a confrontation, the gov-
ernment strengthened security around the
Dera and let the followers decide who would
be allowed inside the complex. However, the
media continued to raise questions about the
body of Ashutosh lying in a freezer.
The Dera which calls itself a socio-spiri-
tual-cultural, not-for-profit organization
(www.djjs.org) was established and run
under the Mentorship of His Holiness Shri
Ashutosh Maharaj Ji. Its aim is to usher in a
world where every individual becomes an
embodiment of truth, fraternity, and justice
through the eternal science of self-realiza-
tionBrahm Gyan, uprooting in its wake all
social evils and threat. We dont want
Two months after he was declared clini-
cally dead, two petitions relating to his
the stalemate to
death came up before the Punjab and continue. We will
Haryana High Court. One of the petitioners,
Dalip Kumar Jha, claimed he was Ashutoshs
test the case on
biological son. He claimed that the Swami the basis of law,
was a resident of Madhubani in Bihar and science, belief,
had abandoned his family. He sought the
release of the body for performing the last morality and
rites and demanded a DNA test to prove his ethics and give
relationship with him. He wanted an inquiry
to ascertain the cause of his mysterious
the verdict."
death. The other petitioner, Puran Singh, Justice Mahesh
said he was the driver of the spiritual head Grover, Punjab and
and sought a CBI inquiry into his death. Haryana High Court
OVERPOWERING
INFLUENCE
Ashutosh Maharaj
held a considerable
sway over his
disciples, so much
so that when he
died they believed
he was in deep
meditation
INDIA LEGAL December 31, 2016 59
COURTS
WARY OF TROUBLES COURT DIRECTIVE
The ruling Shiromani It was on December 1, 2014, that Justice
Akali Dal, bracing up for
MMS Bedi of the Punjab and Haryana High
assembly elections,
doesnt want to get Court had declared that Ashutosh had died
embroiled in the a natural death and directed the Punjab gov-
Dera issue ernment to cremate his body within 15 days
in accordance with due religious rites. The
judge said that in the interim period, Ashu-
toshs body would be given all due respect
and may be displayed for the last darshan.
Justice Bedi said the belief of the follow-
ers that he was in deep mediation could not
be regarded as an integral part of the reli-
gion, and could not be protected under the
Right of Freedom of Religion. The belief was
contrary to the fundamental duty under
Article 51 A (h) of the constitution requiring
us to have scientific temper and humanism,
the Court observed.
It gave the verdict that Dalip Kumar Jha
and Puran Singh did not have any locus
standi on the basis of the material produced
by them before the Court to claim possession
of the body which deserved to be disposed of
by cremation. The Court also dismissed the
petitions seeking directions for conducting
an autopsy of Ashutosh Maharajs body and
60 December 31, 2016
a DNA test.
The judgment was chal-
lenged by the Punjab gov-
ernment as well as by the
two petitioners. The gov-
ernment expressed its in-
ability to form any opinion
regarding the disposal of
the body in view of the
faith and belief of lakhs of
devotees spread all over the
world. It said that it was
the fundamental right of a
sect or religion to hold any
belief or faith.
PUNJAB HESITANT
Since then, the state gov-
ernment has been dragging
its feet on the issue and
sought numerous adjourn-
ments from a division ben-
ch of the Punjab and
Haryana High Court. At a
UNI
recent hearing, the govern-
ment told the Court that the matter had been
referred to the Department of Medical Edu-
cation and Research for its opinion on
whether a clinically dead person could be
preserved through artificial refrigeration! It
further asked the Department to provide
information that it was the correct method
for preservation and whether such preserva-
tion would have any effect on public health
or posed any threat to the environment.
At the last hearing in November, Justice
Mahesh Grover, who is heading a division
bench, said: We dont want the stalemate to
continue. We will test the case on the basis of
law, science, belief, morality and ethics and
give the verdict.
After going through a report submitted
by the Punjab government in a sealed cover,
the division bench observed that the report
has nothing much to say and had only
touched upon the constitutional provisions
and Directive Principles of the state.
Clearly, the government is trying to stay
clear of any controversy and is not taking any
decision to avoid antagonizing the Dera fol-
lowers. It has virtually thrown the ball at the
High Court to take a decision. IL
SECURITY

Of Borders,
Bombers and
Breaches Repeated infiltration by terrorists
into army camps shows the
vulnerability of the army. It is
time the defense forces girded
up to tackle new realities in an
era of suicide bombers
By Seema Guha

I
T began with Pathankot, went on to
Uri and then, Nagrota. In all three
cases, terrorists were able to breach
Indias defenses. Why were the
security lapses repeated at a time of
heightened tension between India
and Pakistan when Kashmir and
Punjab were both on high alert? Both Uri
and Nagrota are in Jammu and Kashmir
which has been on the boil since summer.
Why are the defense forces not able to stem
such breaches?
There are no easy answers to these ques-
tions. The second largest army in the world
has exposed its vulnerability time and time
again. After Pathankot, Defense Minister
Manohar Parrikar had declared that he
would make sure that this kind of security
gap would be plugged. But in Nagrota the
same lapses were evident.
WORLD REACTION
Condemning Pakistan is not enough. We
need to fix our defenses. Former foreign sec-
retary Shyam Saran has been consistently
speaking of India putting its house in order.
Look to secure yourselfthat is the priori-
ty. The rest of the world can only sympathize
and condemn terror. Beyond that, there is
little else they will do. Getting the world to

62 December 31, 2016


condemn Pakistan for encouraging anti-
India groups to strike across the LoC is all
very well. Nor is it a difficult task. All
countries, in fact, all sane human beings, will
condemn terrorism. During the BRICS
(Brazil, Russia, India, China, South Africa)
summit and the outreach meeting which fol-
lowed, Delhi spent time and energy to
target Pakistan.
At the UN and in every multi-lateral
forum, India has not missed an opportunity
to highlight terror emanating from across
the border. During the Heart of Asia confer-
ence in Amritsar recently, Indians were
delighted with Afghan President Ashraf
A SENSE OF CONTROL
An Army personnel mans
a barricade in the
Srinagar valley
UNI
Ghanis tough words for Pakistan. But con-
demnation is good for the domestic con-
stituency and winning television TRPs.
Apart from a feel-good factor, it is nei-
ther here nor there. It is part of the diplo-
matic game. The Modi government and its
National Security Adviser must seriously
consider why neither the Indian army nor
paramilitary forces have paid much heed
to ensuring that terrorists dont get access
into India.
Soon after the terror attack on the front-
line Indian air force base of Pathankot early
this year, a tri-Service committee headed by
Lt General (retd) Philip Campose was
INDIA LEGAL December 31, 2016 63
SECURITY
The committee
identified loopholes...
which need to be
plugged on priority with
a combination of means
technological, physi-
cal and procedural.
Lt General (retd)
Philip Campose, Head of
a tri-Service committee
AN UNPARDONABLE LOSS
The coffin of Major Akshay
Girish Kumar, martyred in
the terror attack at Nagrota
army camp
64 December 31, 2016
plugged on priority with
a combination of means
technological, physical and
procedural, said General
Campose to India Legal.
The challenge for com-
manding officers of every
unit is to ensure 24x7 alert-
ness and robust counter-
measures, backed by high
levels of technology, equip-
ment, motivation, train-
ing and security audits,
The security in our Terrorists have been he added.
defense installations scaling the walls, so the
was designed for an walls need to be BETTER RESPONSE
earlier gentler era guarded better. The One of the recommendations
when terror threats as focus generally is on the of the committee was: better
we see today were main enterance... The response to intelligence-
non-existent. ideal situation is uniform based alerts about impend-
security... ing terror attacks (very often
Ajai Sahni, Executive the red tape in the defense
Director of the Institute Major-General (retd) bureaucracy also ensures
for Conflict Management Ashok Mehta that all messages take a
round-about route to reach).
This is especially important
ordered to investigate the incident. The as intelligence alerts are often missed,
panel went into the security lapses and also including that on Pathankot. The committee
recommended measures to shore up security also called for overhauling of the Defence
in defense installations. That report was sub- Security Corps, with better-trained and
mitted in May, but the drill does not appear younger people, raising quick reaction
to have been followed through. commando platoons in high-risk areas,
The committee identified loopholes as it bullet-proof jackets and better weapons
existed at that time, which need to be for soldiers.
While these measures take time, the
question of repeated security lapses which
result in loss of lives is unpardonable. The
army loses its own officers and men, and yet
nothing moves. Major-General (retd) Ashok
Mehta admitted that security is lax in the
outer perimeters of army camps. Terrorists
have been scaling the walls, so the walls need
to be guarded better. The focus generally is
on the main entrance or as we say, the tech-
nical installation. The ideal situation is uni-
form security around the camp but securing
the entire area requires more resources and
is costly. Usually for a while after a major
incident, there is general awareness all
around, but this slips after a few months and
the usual complacency kicks in.
Much of this has to do with the general
UNI
chalta hai attitude of Indians as a whole.
But when the damage inflicted by a small
group of three terrorists puts lives at
stake, surely shouldnt this be tackled on a
priority basis?
In its defense, the army points out that
for every one lapse, there are 20 other
attacks which are foiled by various units.
The public doesnt get to hear of these.
Also, there are hundreds of army units
spread across Kashmir and Punjab, and fool-
proof alertness is out of question. These
units, according to army sources, are
watched all the time by sleeper cells oper-
ating in the area. There are also sympathiz-
ers watching every movement of the targeted
camps. Whenever a weak spot is found,
it is exploited.
FENCE PROTECTION
It is common sense that the perimeters of
every army camp should be well-guarded.
The days of ordinary barbed wire fences are
long over. Electronic fences are in order and
the walls around an army unit must be at
least 8 to 10 feet high. Electronic fences are
able to detect the slightest movement
around. A second fence about 20-40 feet
should be fitted with cameras, which allows
the control room to see if there is any breach
in the forward perimeter. Also, watch towers
and manned guards are a must. Visibility at
night is also important, so night vision gog-
gles should be provided.
Patrolling an area by marching up and
down with a gun in hand is hardly going to
provide security. In fact, the men become sit-
ting targets for terrorists. There is more to
security than meets the eye, said Ajai Sahni,
Executive Director of the Institute for
Conflict Management and a counter-terror-
ism expert.
The security in our defense installations
was designed for an earlier gentler era when
terror threats as we see today were non-exis-
tent. This is why there is no strict segrega-
tion of civilian and military quarters in many
camps. When families live inside a camp,
strict security drills are not followed and so
we see the easy breach of security at the
perimeters of defense installations, said
Sahni. It is time for the government and the
Former Foreign Secretary Defense Minister Manohar
Shyam Saran has been Parrikar had declared after
consistently speaking of India Pathankot that security gaps
putting its house in order. His would be plugged. But in
advice: Look to secure your- Nagrota the same lapses
selfthat is the priority. were evident.
army top brass to realize that things cannot
be as they were in the past. The whole system
needs to be overhauled and funds are needed
to equip the army, navy and the air force with
advanced technology. A new concept of
security must be put in place to deal with
new realities in an era of suicide bombers,
he said.
Cantonments in the British days, he
explained, were generally built away from
the main cities and towns and usually isolat-
ed. But as the pressure of population
increased, towns and cities expanded into
the fringes of cantonments. Now many are in
the heart of cities and towns. This expansion
presents its own set of problems. Those who
plan terror attacks are in a better position to
watch the movement of the army, find the
weak points and pass on the information to
terror modules.
Hauling up the entire security system
needs both time and money. Funds are
required to have multi-layered protection
across army camps in sensitive border areas.
It is up to the Modi sarkar to give the army
what it requires. Promoting love for the army
through gimmicks like Diwali-sandesh are of
little consequence unless the government
provides money to equip the forces with
modern technology to guard their own. If the
army fails after this, fingers can be raised,
said defense experts. Not before. IL
INDIA LEGAL December 31, 2016 65
AVIATION
Dogfight in the Skies
A DGCA move to cancel the licenses of pilots who feign sickness has
rebounded on it as pilot unions have sent it a legal notice. This is yet
another skirmish in the testy ties between both parties
By Shobha John
T
IES between pilots and the
Directorate General of Civil
Aviation (DGCA) have often been
testy in the best of times, leading
the regulator to often crack down
on them. This time the issue is pilots report-
ing sick, with the DGCA coming out with a
strict draft Civil Aviation Requirement
(CAR) in November relating to Flight Crew
Standards Training and Licensing (Section 7,
Series X, Part III) and their adherence to the
flight duty assigned to them.
66 December 31, 2016
Illustrations: Amitava Sen
The CAR signed by the D-G, BS Bhullar, says
in unequivocal terms: it has been
observed that pilots at times do not adhere to
assigned flight duties that have a bearing on
flight safety or public interest. Patterns have
been observed wherein pilots rostered for
flights report sick especially during times of
festivals, weekends or at times during
periods of disagreement with the
management.In some cases, groups of
pilots report sick without notice and as a
result airlines are forced to delay or cancel
their flights at the last minute.This is a
highly undesirable practice and goes against
the public interest.
Such an action on the part of pilots
attracts the provisions of sub-rule (2) of rule
39A of the Aircraft Rules, 1937, which reads
as follows: The Central Government may
debar a person permanently or temporarily
from holding any license or rating men-
tioned in rule 38 if in its opinion it is neces-
sary to do so in the public interest.
It further added: Airlines publish pla-
nned flight roster for pilots on periodic basis,
which serves as a planning tool. However,
due to the dynamic nature of flight opera-
tions, such planned roster undergoes change
at regular intervals. Pilots shall undertake
the flight duties as per the dynamic roster as
long as they are within the Flight Duty
Time Limitations (FDTL) norms. Airlines
shall ensure that pilots, who often report
sick on periodic basis are examined
by company doctors immediately upon their
reporting sick.
UNIONS REPLY
This CAR has so irked pilots that three
unionsthe Indian Pilots Guild (IPG), the
Indian Commercial Pilots Association
(ICPA) and the National Aviators Guild
(NAG) representing the pilots of Air India,
erstwhile Indian Airlines and Jet Airways
issued a six-page legal notice to the DGCA
on November 23 over this. And in a surpris-
ing show of support, Air Indias CMD
Ashwani Lohani wrote to the DGCA report-
edly saying that such a CAR would adversely
affect flight safety and that sorting out pilot
issues was the airlines job.
A senior aviation medical expert said on
condition of anonymity that this kind of
military diktat from the DGCA was
uncalled for and the regulatory body should
not take its brief from airlines. The FDTL
was framed with the objective of giving
pilots adequate rest and airlines utilizing
them well. A pilot is the last word on his own
fitness. An aviator pretending to be unwell is
worse than one who is actually unwell.
Airlines should be able to utilize pilots
within the FDTL which has provisions for
eight hours sleep and also takes into account
the window of circardian low (when one is The FDTL was
supposed to sleep and generally between 12
am-5 am), he stressed. It is the job of air-
framed with the
lines to track the FDTLs of their pilots. objective of giving
But what was the sudden provocation? pilots adequate
According to pilot unions (see box), in the rest and airlines
first week of November, Jets rostering
department constantly kept calling pilots for
utilizing them well.
roster changes. This resulted in delays and A pilot is the last
the DGCA coming down on them. word on his own
fitness. An aviator
ANOTHER CAR
Incidentally, this is not the first time that the
pretending to be
DGCA has pulled up pilots. Way back in unwell is worse
2005, when pilots left en masse for greener than one who is
pastures in other airlines leaving many actually unwell.
flights disrupted, the regulator brought out a
CAR which made it mandatory for them to A senior aviation
give a six-month notice. That CAR is still medical expert
valid and many pilots privately chaff at the
unfairness of being targeted when profes-
sionals in other sectors can hop jobs at will.
Though the DGCA has claimed that air-
lines publish planned flight rostersdynam-
ic rosters is what it calls themon a periodic
basis, this is far from the truth. There are air-
lines which plan their roster on a day-to-day
basis and even go so far as to violate FDTL
norms, leaving pilots to face the raw end of
the stick. This was evident in August 2016
when Jayant Sinha, minister of state for
aviation, told the Lok Sabha that the DGCA
had suspended 63 SpiceJet pilots for violat-
ing FDTL norms. But surely pilots dont
violate FDTLs on their own? Airline man-
agements often push them to fly their
INDIA LEGAL December 31, 2016 67
AVIATION

Most airlines flout flight duty time limitations

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

DGCAs draft CAR says that if pilots
dont adhere to assigned flight duties, it
will have a bearing on flight safety or
public interest. What are your views
on this?
Public interest is a loosely termed and
conveniently misused phrase. Flight
safety will be further jeopardized if
pilots dont get adequate rest. The root
cause of all this is the systematic failure
of airlines to hire enough pilots for their
fast-expanding fleet. They have hired
lesser number of pilots and offer them
lucrative overtime allowances to fly
more. While the younger lot gets
enticed by these offers, the seniors see
through these. Unfortunately, the DGCA
appears confused about its actual role
and interferes in every aspect of airline
operations and ends up deviating from
its role of administrating the civil avia-
tion sector. It has got into issues such
as human resources and pricing and
airlines are able to influence it to the
detriment of pilots.
But arent pilots themselves to
blame? Many Jet pilots took leave
in November, upsetting flights.
Firstly, news that pilots availed sick

machines to the maximum. FDTL, inciden-

tally, is defined as the period when a flight
crew member is required to report for duty
and finishes when the plane finally comes to
rest at the end of the last flight on which he
is a crew member.
An airline head, who didnt want to be
named, admitted that dynamic rostering
was common in airlines but that he was
correcting these glitches in his own
airline.

EXPANSION PLANS
The moot reason behind this fracas has
been the expansion plans of airlines them-
selves which have seen a shortage of
experienced commanders. This makes
them stretch their pilots, sending
their lives into a tailspin. Many are
sleep-deprived and many are exhausted.
This lowers their reflexes, a dangerous situa-
tion when flying.
The legal notice sent by the IPG, ICPA
and NAG to DGCA was the last straw on
the camels back. It says: Section 42
Part V of The Aircraft Rules 1937,
expressly proscribes that the holder of a

68 December 31, 2016

leave in large numbers in November is
wrong. As per the National Aviator's
Guild, our member associate, Jet has a
flight safety program to alleviate mental
and physical fatigue in pilots. Its a week-
long program, done periodically. The last
one was in the first week of November.
The pilots are advised to avoid alcohol,
non-veg and sea food (some types of
fish can upset the stomach), stick to the
roster and spend time with the family.
The rostering department constantly kept
calling pilots for roster changes due to
an acute shortage. This resulted in
delays. The delays, however, continue
and the pressure put on pilots to operate
beyond their published roster is what is
keeping the system going on a day-to-
day basis.
What is unscientific about dynamic ros-
tering as long as it falls with the FDTL?
Many airlines violate FDTL with impunity
due to the CAR on FDTL being open to
interpretation. Unfortunately, except for
IndiGo which has expanded in a con-
trolled manner, very few airlines have
systematic rostering. As per NAG in Jet,
they are sometimes changed on a hourly
basis. A pilot may be called to do a
Singapore flight and when he comes to
the airport, he is told to do the Hong
Kong flight. He too needs time to pre-
pare for a flight. Also, there are few
standbys and with Jet having four differ-
ent types of planes, pilot rostering is
poorly managed.
Why are your unions against doctors
being sent to the homes of pilots to
check if they are sick?
These doctors are also part of the man-
agement. The ramifications of a pilot
being sick are different. For example, if
he has a cold and flies, he can rupture
his eardrum. If he has a backache, it
can become serious. The rule book
says we should be fit to fly, but
managements expect us to work under
all circumstances.
But what about passengers who are
inconvenienced by your protests?
Thats an undesirable consequence of
protest by anyone. How come it's ok
when parliament is brought to a standstill
by protests? Banks and other organiza-
tions periodically go on strike too.
Lufthansa just came out of a strike and
their management cancelled more than
600 flights.
Is the FDTL in India more stringent than
what the FAA prescribes?
One cannot compare Indian conditions
with what is abroad as the weather here,
especially during monsoons, can be tax-
ing. Also, many Indian airports lack
radars and other infrastructure. Flying is
quite challenging here, particularly in the
absence of consideration for human fac-
tors and DGCAs punitive actions.

licence shall not exercise the privileges of his
licence during any period when he is
awarethat his physical condition has deterio-
rated below the standard required for that
category of licence. Thus the entire
emphasis on the Rules is that a pilot
must not fly at all if at any time he
is aware that his physical condition
has deteriorated.
It further says: Member pilots have been
facing a very major issue in the airlines they
fly forthat of irregular and last-minute ros-
tering. Indeed that has become the norm
especially for short haul flights. The correct
procedure is that a flying roster is drawn up
month wise, or every 2 weeks at the
most...Howeverthe roster is almost never
followed and is changed on a daily basis.
The pilots challenged the DGCA to do a
survey of the actual scheduling system. It
is most interesting that the CAR claims to
have observed patterns of pilots rostered for
flights falling sick, but has not observed the
pattern of the rostering itself, said the
notice. The pilots also denied that there was
any mass sick leave as alleged. Their only
demand, they said, was for the management
to stick to a proper published roster and not
have daily changes.
They also called for a survey of the num-
ber of pilots in each company vis-a-vis the
number (and type) of aircraft. They asked
the DGCA to ensure the recruitment of and
training of sufficient pilots instead of issuing
CARs to penalize pilots and compel them to
fly against their will. They questioned the
DGCA entering the rostering arena when it
should be an internal administrative matter
of individual airlines.
The legal notice also alleged: My clients
strongly feel that the draft CAR has been
taken out purely at the instance of and for
the benefit of the operators of the airlines to
maximise flights and profits, and to the
detriment not only of the pilots but public
safety. The notice said that dynamic roster-
ing today simply means no rostering and is
not based on any scientific principles and
would greatly impair a crews level of alert-
ness. It asked the DGCA to immediately
withdrawal the draft CAR, failing which,
legal proceedings would be instituted.
It is obvious that a dogfight is ensuing in
the skies. IL

INDIA LEGAL December 31, 2016 69

MEDICINE
Much Ado about W
Counterfeits
A WHO group has dropped the
word counterfeit and replaced it
with substandard and falsified
with regard to drugs. This is more in
keeping with public health concerns
than intellectual property rights
By Nayantara Roy
70 December 31, 2016
Amitava Sen
HATS the difference
between substandard,
spurious, falsely labeled,
falsified, counterfeit
(SSFC)all terms relat-
ing to medicine? The World Health
Organization (WHO) Member State
Mechanism recently decided to simplify this
terminology on the basis of recommenda-
tions by an informal working group. This
included representatives from India, China,
Brazil, the US, Argentina, Ireland, Indo-
nesia, Tanzania, Nigeria and Spain. Instead
of counterfeit, the terms used henceforth
will be substandard and falsified. This will
be placed before the World Health Assembly
when it meets in May 2017.
So whats in a name, one might ask?
India is a large manufacturer and exporter
of generic medicines. In 2008 and 2009,
almost 20 shipments of generic medicines
from India to developing countries were
detained at customs by European Union A substandard medicine is a drug that While counterfeit
authorities while in transit through Europe. does not meet quality standardsit may
They were stopped on the grounds that they contain too much or too little of the active means deliberately
may be counterfeit medicines, ie medicines ingredient, may be contaminated, may be fraudulent
that infringe trademark. poorly packaged or fail to meet quality stan-
dards in other ways. These medicines may be products being
CONFUSING TERM legitimately produced mistakes or may have passed off as the
Michael Deats, group leader for the SSFFC been knowingly produced to a substandard
Surveillance and Monitoring, Safely and level. Both originator and generic medicines
real thing, generic
Vigilance, Essential Medicines and Health can be found to be substandard, and the medicines are
Products at the WHO told Intellectual issue of substandard medicines is a neglect- legal copies of an
Property Watch: [T]he term counterfeit is ed one that needs far more attention.
now usually used in the context of protection A fake medicine is deliberately and original product
of intellectual property rights. Substandard fraudulently mislabeled, giving false infor- and for a variety of
and falsified products are a public health mation on where it was made or by whom so
issue and the focus should be firmly on pro- that people will think it is a legitimate medi-
reasons, are much
tecting public health. He also reportedly cine. Fake medicines are dangerous as they cheaper to
informed the website that the terms spuri- are unlikely to contain the active pharma- produce. India is a
ous, and falsely labeled were dropped as fal- ceutical ingredient needed to make the med-
sified includes all variations of deliberate icine effective, and may even contain harm- large manufacturer
and fraudulent misrepresentation. ful substances. They present a serious threat of generic
Dr Unni Karunakara, formerly Inter- to public health that needs to be appropri-
national President of Medicine Sans Fron- ately addressed. medicines.
tieres (Doctors Without Borders) and cur-
rently Senior Fellow, Jackson Institute for NEFARIOUS MEANS
Global Affairs, Yale University, explained to In addition to counterfeit meaning deliber-
India Legal: The term counterfeit ately fraudulent products being passed off
medicine is overly broad and creates confu- as the real thing, Karunakara said it could
sion because it conflates intellectual proper- also be applicable when a company repack-
ty issues with public health problems. ages and sells expired medicine with a
Different organizations and countries use fresh expiry date printed on the new
different definitions of the word, making it
hard to know exactly which problem is
being referred to when this term is used.
Some definitions focus on broad intellectual
property terms and so confuse legitimate
generic medicines with dangerous fakes. For
this reason, MSF believes the term counter-
feit should not be used in relation to medi-
cine and instead more accurate and precise
terms such as fake or substandard should
be used.
He also explained that a generic medi-
cine is a legitimately produced medicine that
is an exact copy of the originator product
and performs in exactly the same way.
Generic medicines used in donor-funded
treatment programs and by MSF must meet
quality standards to prove they are just as
effective as the originator product. Health
programs around the world rely on these
affordable copycat medicines.

INDIA LEGAL December 31, 2016 71

MEDICINE
The term counterfeit WHOs stand on generic substitutions of off-patent (i.e.
medicine is overly-broad dropping the term
and creates confusion counterfeit does not
because it conflates address the issue of
intellectual property big pharma fighting to
issues with public save its turf from generic
health problems. manufacturers.
Unni Karunakara, Rahul Chadha, CEO and
Senior Fellow, Jackson Wholetime Director at
Institute, Yale University RWL Healthworld
packaging. This was recently done in Kenya.
Generic medicines, on the other hand, are
legal copies of an original product and for a
variety of reasons, are usually much cheaper
to produce. Karunakara gives the example of
how the cost of retroviral medicines for
AIDS in 1999-2000 was about $10,500 per
year per patient. Ciplas Yusuf Hamied said
that he would make medicine costing $1 per
day, around $360 per year per AIDS patient.
Generics also help in keeping the prices
of medicines down, which can be inflated by
patent holders in a practice termed price
gouging. This was illustrated vividly in the
case of Martin Shkreli, CEO and founder of
Turing Pharmaceuticals, who acquired a
license to manufacture the anti-parasitic
medicine, Daraprim. He reportedly raised its
price from $13.50 to $750. Daraprim is used
for treatment of people with compromised
immune systems. Shkreli reportedly defend-
ed his action by citing the high cost of mar-
keting and distribution.
This also brings to mind the case of a
72 December 31, 2016
group of pharmaceutical companies (many
of them multinationals) which attempted to
sue the South African government in 1998
for making changes to the law which would
have helped people get access to cheaper
AIDS and other medication. The companies
alleged that South Africas amended Section
15C of the Medicines and Related
Substances Control Act (allowing parallel
imports of patented medicines) was in viola-
tion of both the South African constitution
and the Trade-Related Aspects of
Intellectual Property Rights (TRIPS). The
amendments also contained provisions for
where the patent has expired so the formula
is now in the public domain) medicines and
transparent pricing of medicines.
The government argued that the amend-
ments were neither in violation of the South
African constitution nor of TRIPS. In fact,
some of the changes had been drafted with
help from the World Intellectual Property
Organization.
The flexibilities within TRIPS were fur-
ther clarified later in the Doha Declaration
(the Declaration on the TRIPS Agreement
and Public Health, WTO Ministerial 2001).
But in the interim, the US had withheld
trade benefits and had even laid out the
threat of sanctions against South Africa.
However, there were large-scale public
demonstrations in the US as well as in
Europe against the action of the phar-
maceutical manufacturers, which forced the
US government to reconsider its actions.
Due to the strong public reaction, the case
was withdrawn.
SUBSTANDARD DRUG
In India, the case of Novartis vs Union of
India made a bit of stir when the Supreme
Court upheld the denial of patent to Novartis
for its anti-cancer drug Gleevec. Section 3(d)
of the Indian Patents Act, 1970 has stringent
requirements for patenting and it was found
that Gleevec did not fit the standards
required to be given a patent in India.
Generic medicines can be manufactured
legally in three ways. One is when the patent
term expires and the process and product
come into the public domain. Another is to
 BEYOND
ONES MEANS
(Top) Patients at
the OPD of a
Jaipur hospital.
With brand
name medicines
priced sky-high,
access to treat-
ment remains a
fraught issue
UNI

get a license from the patent owner who then

gets royalties and the third is compulsory
Yawning price gap
licensing, i.e., when a government adjudges
that there is a public health crisis in the Disease Brand Name Cost (`) Generic Medicine Cost (`)
country and it gets a compulsory license
Medicine
to manufacture the patented medicine. In
HIV, chronic
the past, the US and Brazil have had issues Viread (Gilead) 68,000 Tenvir (Cipla) 1,500
Hepatitis B
over compulsory licensing policies followed
by Brazil. Psychiatric
Risperidon 8,200 Risperdal 608
When Rahul Chadha, CEO and Whole- treatment
time Director at RWL Healthworld Ltd.
(which operates businesses and retail prod- Gleevec Gleevec (without
Cancer 680,000 4,000
ucts under the brand names Fortis (Novartis) patent)
Healthworld, Wellness Tree and Medsource)
Sofosbuvir Manufactured by
was asked about the possible effect that Hepatitis C 68,000 710
(Novartis) Natco & Hetero
removal of the term counterfeit would have
on the Indian generics industry, he said:
WHOs stand on dropping the usage of the ping the sales of perfectly usable medicine.
term counterfeit in lieu of falsified is a mat- As Karunakara said, governments (including
ter of semantics...it does not address the India) need to develop the capacity to stop
issue of big pharma fighting to save its turf bad medicine from reaching people.
from generic manufactures till such time Access to medicine is an issue that is
as medicine is big business such commercial fraught. The contentious point is whether it
tussles between corporates, countries and should be viewed from a largely commercial
trade blocs will continue point of view or by balancing commerce with
The change in nomenclature is, therefore, need. In the meanwhile, governments need
more to do with making sure that bad to improve their capacity to fight criminals
medicine does not get into the market and who have no compunction about selling spu-
that agencies do not waste their time stop- rious or substandard material to the sick. IL

INDIA LEGAL December 31, 2016 73

GLOBAL TRENDS

Caste
Cant
be
Cast
Away
The UK governments exercise to have a public consultation on caste
UNI

has stirred a hornets nest. Even in such a developed country, this is

an emotive and ugly issue
By Sajeda Momin in London

T
HERESA MAYS government sti-
rred a hornets nest in September
when it announced that it intend-
ed to undertake a full public con-
sultation on caste discrimination
in the UK. The Hindu diaspora of just under
a million has been thrown into a tizzy, with
the upper castes insisting that there is no
DIVIDED WE STAND need for such an exercise as caste is not a fac-
Indian community tor in British society. However, those belong-
members with Prime ing to lower castes say that caste discrimina-
Minister Narendra Modi tion is a reality they face, mainly within the
during his UK visit in
2015. Unfortunately, the
Indian community.
diaspora has deep Though the government is yet to lay out
caste-based divisions the modalities of the consultation, the issue
has already raised passions and a high deci-
bel debate is under way.
The British parliament had justified the
insertion of a provision against caste dis-
crimination in the Equality Act of 2010
which deals with other forms of discrimina-
tionon the assumption that the caste sys-
tem exists in UKs Indian diaspora. The Act
originally gave power to the minister to
decide whether to implement the provision
or not. However, in a landmark decision, an
amendment in 2013 made implementation
obligatory, but so far it has not been done.
The decision to outlaw caste discrimination
came after a long and hard battle fought by

74 December 31, 2016

the International Dalit Solidarity Network
(IDSN) and other human rights groups.
The current Labour Party leader, Jeremy
Corbyn, who has been a trustee of the IDSN,
had said he was aware of caste discrimina-
tion abroad but was horrified to realise
that caste discrimination had been exported
to the UK too.
HORRIFIC REALITY
A number of research papers carried out by
the IDSN and government-commissioned
researchers like the UK Equality and Hu-
man Rights Commission have documented
that caste discrimination exists in various
forms within diaspora communities from the
Indian sub-continent. It can lead to harass-
ment, bullying and violence in the work pla-
ce, in the provision of services and in educa-
tion, says a briefing paper of the IDSN.
While caste discrimination in the UK
does not reach the same level of brutality as
in India where Dalits are subjected to vio-
lence, rape and murder, it can have serious
consequences for the victims, explained the
IDSN report.
Ram Lakha, the former mayor of Coven-
trya city in central England about 100
miles north of London and which has a large
Gujarati populationfaced discrimination
in his political career because he was a Dalit.
During campaigning for the council elec-
tions I was told that I would not get the sup-
port of the Gujarati voters because I was a
chamar. So I filed my nomination from a
non-Indian constituency and was able to
win, said Lakha.
It is also customary for the local Indian
community to honor each new mayor elected
so as to maintain good relations with the
council, but Lakhas achievement was not
recognized in the same manner because he
was from a low caste. I recently discovered
from my children that they suffered difficul-
ties at school too but they never told me.
Caste feelings are there and it will take a long
time for them to die out, explained Lakha.
HARSH FORMS
As no caste-based census has been carried
out in the UK, there is no exact figure of how
many low caste Hindus live here, but their
During campaigning for the
council elections I was told
that I would not get the
support of the Gujarati voters
because I was a chamar. So
I filed my nomination from a
non-Indian constituency and
was able to win.
Ram Lakha, former
mayor of Coventry
STIGMATIZED
EVERYWHERE
(Left) A demonstration
against caste-based
discrimination within the
Asian diaspora in the UK
idsn.org
numbers are estimated to be in lakhs. Caste
Watch UK, IDSN and other rights group say
that caste discrimination is often very subtle
and takes different forms. These include
upper caste patients refusing appointments
from doctors once they realize they are from
the lower castes, health care professionals
refusing to treat elderly from the Dalit com-
munity, victimization in the workplace and
unfair dismissal because of caste.
The landmark Begraj & Begraj Vs Heer
Manak became the first case of caste-based
discrimination in the UK to be recorded in
courts. In 2011, an Indian couple told an
employment tribunal they faced discrimina-
tion in the workplace, ironically a solicitors
firm, and were unfairly dismissed because
they were from different castes. Vijay Begraj
and his wife, Amardeep, met when working
at Heer Manak, the solicitors firm, in
Coventry. Amardeep, a Jat, said she was
warned against marrying Vijay, a Dalit,
INDIA LEGAL December 31, 2016 75
GLOBAL TRENDS
Bob Blackman, Jeremy Corbyn,
Conservative MP Labour Party leader, earlier
He believes that the a trustee with IDSN
legislation on caste He was aware of caste
discrimination would lead discrimination abroad but
to unnecessary interfer- was horrified to realise
ence in the matters of the that caste discrimination
Hindus and says it has had been exported to the
generated more interest in UK too. Though not brutal,
the community than any it can have serious conse-
other issue. quences for the victims.
by a senior colleague on the grounds that
people of his caste were different creatures
and his position in the firm was
compromised.
Vijay claims that after the marriage,
he was harassed, threatened, denied promo-
tion and ultimately dismissed. But the case
collapsed in February 2013 as the judge
recused herself after a visit by police officers,
and may now be subject to a retrial.
RESISTING THE MOVE
The anti-legislation lobby is led by the
Alliance of Hindu Organisations, which has
expressed concerns about... the impact it
may have on communities living within the
UK. More importantly, it believes that any
anti-caste discrimination legislation is a
direct slight on Hinduism. At a recent public
debate on the Act organized by the Indian
Forum on British Media at the House of
Commons committee room, Satish Sharma,
general secretary of the Council of Hindu
Temples, said the legislation would be a
76 December 31, 2016
recipe for disaster, creating friction within
the Indian community.
Trupti Patel, president of the Hindu Fo-
rum of Britain, said her organization had
found scant evidence of caste-discrimina-
tion. She claimed that the legislation would
have the negative effect of making young
people aware of their caste for the first time,
and encourage people to make unfounded
complaints against their employers.
Bob Blackman, the Conservative MP for
Harrow East in London which is home to a
very large number of Hindus, warned the
legislation would lead to completely unnec-
essary interference and a bureaucratic
nightmare of proportion the Hindu commu-
nity would not want to see. Blackman, who
is also the chair of the All Party Parliamen-
tary Group for British Hindus, remarked
that the caste legislation had generated more
interest and involvement from the UK
Indian community than any other issue he
had ever encountered.
However, for Dalit rights groups, this is
not a Hindu issue but one of basic human
rights. Satpal Muman, chair of Caste Watch
UK, said: This is not about invading the
religious and cultural space. It is purely tar-
geted at discrimination in the public sphere.
Caste discrimination is a human rights viola-
tion. Even if a small section of people
believed in the caste system, it would have an
impact on the lives of people, he stressed and
added that victims of caste-based discrimi-
nation deserve legal clarity.
The supporters of the legislation feel that
the announcement of a consultation is just a
stalling tactic at the behest of the Caste-Hin-
du lobby. Section 9 of the Equality Act of
2010, amended by parliament in 2013, al-
ready required the government to introduce
secondary legislation to make caste an
aspect of race, so why the fresh consultation,
they ask. The government may be hoping
the consultation will allow them to point to
popular opinion to justify them refusing to
introduce legislation required of them by
Parliament and the UN, said Keith Porteous
Wood, executive director of the National
Secular Society. The consultation is expected
to begin before the end of this month and
run for 12 weeks. IL
INTERNATIONAL BRIEFS

S Korea prez in the dock

outh Koreas parliament
S has voted to impeach
President Park Geun-hye over
an influence-peddling scan-
dal, setting the stage for her
to become the countrys first
elected leader to be ousted
from office in
disgrace. The vote against
Park, the nations first female
leader, followed weeks of
damaging disclosures in a
corruption scandal that trigg-
gered huge street protests.
Her powers will now be sus-
pended as the constitutional
court considers whether to
remove her from office. Park
has been accused of allow-
ing a shadowy confidante,
the daughter of a religious
sect leader, to exercise influ-
ence on matters ranging from
choosing top government
officials to her wardrobe, and
of helping her extort tens of
millions of dollars from South
Korean companies.

Islamophobia in Slovakia
he parliament in Bratislava,
T Slovakia, approved a bill that
will prevent Islam from being reg-
istered as a state religion by a
two-thirds majority.
Currently, 62 percent of
Slovakias 5.4 million population
is declared Roman Catholic and
the last census puts the followers
of Islam at only around 2,000
people. Chairman of the Slovak
National Party (SNS), Andrej
Danko, said: We must do every-
thing we can so that no mosque
is built in future. The Islamic
Foundation in Slovakia has not
commented on the new legisla-
tion so far.

Germanys disability law

Special register for Google
ermany continues to be divided ple to avail benefits, even if they
G over a new disability law that
came into effect recently after
choose to stay at home, instead of
an institution.
G oogle News may
be blocked in
there are two major
news aggregators
Russia unless it com- owned by foreign
months of debating. The Federal It is being hailed as a system
plies with a new companies in
Participation Law gives financial change by Labor Minister Andrea
ruling by RussiaGoogle and
incentives to firms willing to employ Nahles, whose department con-
Roskomnadzor, the Bingwhose traffic
people with disabilities. It allows ceived the bill. Disability activists,
Russian communica- exceeds a million vis-
well-to-do seriously disabled peo- however, say that the new law still
tions regulator. itors per day. Bing
gives the adminis-
According to the lat- belongs to Microsoft
tration the power
est decision, foreign which already has a
to move disabled
news aggregators, Russian subsidiary
people into an
especially Google called Microsoft Rus.
institution if they
News, will be put on But Google, which
think that the
a special register in mostly provides
costs are prohibi-
2017 and will have advertising, now
tive, which is
until the end of needs to change its
against the United
March to register registration data or
Nations 2008
their legal entities in set up a subsidiary in
Convention on the
the country. Currently, Russia.
Rights of Persons
with Disabilities. Compiled by Shailaja Paramathma

INDIA LEGAL December 31, 2016 77

BOOKS

The Touts
Its not the doctors but a burgeoning army of middlemen that
public and private hospitals are pampering. An extract from
The Ethical Doctor by DR KAMAL KUMAR MAHAWAR

T
HE Medical Council of of time and effort that one hopes would oth-
India warns doctors erwise be spent looking after patients and
explicitly: A physician developing science. No surprise then that
shall not use touts or our doctors generally do very poorly in push-
agents for procuring ing new frontiers and the contribution of
patients. Medicine has Indian private sector doctors to global scien-
become a business, and tific media literature is minuscule.
one sure way this reality manifests is in the Touts constitute one of the most interest-
way the art is reduced to a commodity that ing aspects of health care in India. It may
must be sold. In the unregulated, unsupport- even sound funny if it did not have really
BRISK BUSINESS
Hospitals devise any ed environment that private doctors work in serious consequences. Youve got these help-
number of means to attract in this country, attracting patients takes up a ing hands all over the place. They act as mid-
richie-rich customers major part of their time and effort; the kind dlemen and appear from nowhere, precisely

78 December 31, 2016


when you need such help. They have con-
tacts in high places. Depending on your
need, they can arrange anything and every-
thing. They will get you to the right doctor,
the right laboratory and the right hospital,
just when you are beginning to feel lost in a
new city. In lieu, they will take a commission
either from you or from the doctor or labora-
tory or hospital, depending on the services
provided. For example, touts from villages
will barge into doctors offi-ces in towns and
cities, declare to the doctor that they have
brought a patient, explain what they want
the doctor to do, clarify how deep the
patients pockets are, and finally agree on
the commission with the doctor.
Depending on how desperate the doc-
touts can get your tests done
tor is, the commission can be quite
in a day, get you a bed despite
substantial.
the authorities telling you that all
are occupied, help you navigate the
T
his phenomenon is by no
complex buildings, and make sure
means specific to rural
patients seeking help in big
cities. In urban practice, it takes differ-
ent forms and is rampant in both public
and private sector hospitals. In the public
sector, these touts are sometimes the chan-
nels whereby government doctors and offi-
cers earn extra money. In the private sector,
they are employed by many doctors, labora-
tories and hospitals to attract patients. They
prey upon the sick at a time when they are
most vulnerable, masquerading as Gods
angels. These are a thriving community unto
themselvesthe Indian medical touts.
In a very poor country like ours, there is
no shortage of people who will do anything
for you for any wage. For a monthly salary in
the range of `10,000 to `20,000, you can
hire any number of marketing executives or
secretaries or personal assistants you like.
In a market where one can make tens of
thousands of rupees from just one patient,
many hospitals and nursing home owners
know that such employees finance their own
employment and it pays back to have as
many of them around as possible. The job is
simplethey have to ensure a constant
stream of patients. This means interacting
with local doctors and establishing deals.
This also means tying up with quacks and
RMPs in villages. There is a third method
The
touts can get
your tests done quickly
for a fee, get you a bed
despite the hospital staff telling
you that all are occupied, fix up
appointments with doctors for a
charge, help you get medicines
by overcharging, and even
provide blood bottles in a jiffy.
The Hindustan Times,
Ranchi, June 13, 2015
They
offer help in getting
an appointment, and have
With
records examined and signed
their vast network
by the doctors. Many touts have
among hospital staff, the
acquaintance with doctors and
knowledge of the functioning of the
hospital. People in the country pay
`2,017 crore a year as bribes in
government hospitals.
your stay in the hospital is Divya Ramamurthi and
comfortable. Raghava M., The Hindu,
Mail Online India, May 31, 2000
Jan 25, 2015
of getting patients to a clinic or a hospital
via a tout who preys upon helpless patients
in government hospitals, at bus stands, rail-
way stations, or anywhere else. Obviously
when one gets better at this job, one wont
work for `10,000 a month, and voila! A free-
lance tout is born.
The Indian health care system is riddled
with these touts. They are sometimes the
staff working in hospitals, looking to make
some extra money. It could be the reception-
ist, the billing clerk, the ward boy, the lift-
man, the toilet cleaner, and even the tele-
phone operator. More often, they are profes-
sional touts working for doctors and diag-
nostic facilities but pretending to be a help-
ing hand around sick patients and their wor-
ried relatives. One does not have to be a
genius mathematician to figure out that each
of these touts needs to be successful just a
few times in a year for the employers to
recover the wages for the whole year.
The more talented and adventurous
INDIA LEGAL December 31, 2016 79
BOOKS
WHERE HOSPITALITY
MEETS HOSPITAL DUTIES
Hospital setups now offer
most luxurious environs
There is no shortage of people who will do
anything for you for any wage. For a monthly
salary of `10,000 or `20,000, you can hire any
number of marketing executives....
amongst these develop significant networks
within the system and of course do much
better. They know how patients turning up
at a hospital can be deflected to their
patrons. If a certain Dr Singh, in a private
hospital in New Delhi, is wondering why
nobody ever comes to his clinics, he only
needs to send a decoy disguised as a patient
to the receptionist in the hospital or to any
others who have taken it upon themselves to
guide patients in finding somebody whom
they can work with. If the hospital reception
never puts any patient through to the tele-
phone line in Dr Singhs room, it is possible
that the receptionist has been asked to divert
THE ETHICAL DOCTOR all calls to a different number, or it may even
Author Dr Kamal Kumar be that the telephone ringer is turned off. If
Mahawar you think about it, these people are more
Publisher HarperCollins ingenious than some of the doctors who
Pages: 256; price: `350 occupy these rooms. What a waste of talent
though! The management in both private
80 December 31, 2016
and government institutions knows about
these touts who operate in their facilities, but
they are helpless. It does not really bother
the private hospital which of their consult-
ants gets the patients, as long as they are
being seen in the hospital. In fact, if they
nurture and support a consultant with an
effective (marketing) team, it is more than
likely that this person will also pull in busi-
ness for the hospital from its competitors.
Given a choice between ethical doctors who,
in the eyes of the management, are lazy
sinecures, simply waiting for patients to
show up so they can give their professional
advice, and doctors who are sufficiently
motivated to walk an extra mile to get
patients to the hospital and encourage them
to get admitted and have operations (some-
times unnecessary), every hospital manager
in India knows which one to choose. Health
care is a business, and it has to be run
like one.
It probably started with owners of nursing
homes and hospitals who cannot survive
without a regular stream of patients. Their
outgoings are fixed and the business will lose
money if each bed does not have a patient in
it at any given point of time. (Hospitals use a
technical term called bed occupancy rates to
express this.) Under these circumstances, it
pays to have as large a pool as possible of mar-
keting executives (that is, touts) to tap
patients from as wide an area as possible....
Touts know the system. Babus in govern-
ment offices will not even entertain you
because what they cant ask for openly, these
touts will do for them. This applies to doctors
too. These touts keep our officers and doctors
safe from the dirty details. They put them-
selves in the firing line to protect those sitting
in big offices and lavish chambers.... They
help our systems function smoothly despite
all the underlying imperfections. The babus
who are actually employed to do the job are
able to enjoy morning tea in office, read news-
papers, and also simultaneously increase
their income, while a parallel army of touts
does all the work. Doctors are able to
concentrate on patients while touts take care
of the business of attracting business.
Such innovative Indian solutions for Indian
problems! IL
 DLY
R
WO ISE Have fun with English.
Get the right answers.

W Play better Scrabble.

By Mahesh Trivedi

1. Dishabille D: Sob story C: Great idea ANSWERS

A: To clean D: Obstacle 20. Millennium
B: Untidily dressed 8. For the birds 19. Love a lot
C: Torn A: Waste 15. Hit the ceiling
D: Physically B: Unimportant A: Become very angry
18. Be kept waiting
challenged C: Unhygienic B: Die 17. Low-quality newspaper
D: Secret C: Kill 16. Rich, powerful person
2. Arcane D: Do the best
A: Understood by few 9. Chuck it down 15. Become very angry
B: A gas A: Rain heavily 14. Very clever
16. Fat cat
C: Beautiful B: Toil
A: Lot of money 13. Evening gathering
D. Bitter C: Cancel
B: Grandmother
D: Shut 12. Boss
C: Buffalo
3. Grim Reaper 11. No longer young
D: Rich, powerful
A: Notorious gangster 10. On the off chance
person 10. Just in case
B: Famous singer A: Impossible
C: Old age B: Unfortunately 9. Rain heavily
17. Rag
D: Death C: Just in case 8. Unimportant
A: Rebuke
D: Suppose
B: Money 7. A big lie
4. Hot under the collar
C: Low-quality
A: Repentant 11. No spring chicken 6. Just for fun
newspaper
B: Suffering A: Not a fool 5. Extremely thirsty
D: Beggar
C: Very angry B: No longer young
4. Very angry
D: Arrogant C: Vegetarian
18. Kick ones heels
D: Not clever 3. Death
A. Be kept waiting
5. Dry as a bonel 2. Secret
B. Quit job
A: Penniless 12. Big white chief
C. Abuse 1. Untidily dressed
B: Exhausted A: Boss
D. Surrender
C: Ready B: Very rich person
D: Extremely thirsty C: Politician
D: Doctor 19. Love to bits SCORES
6. For the hell of it A: Love hesitantly
B: Love a lot 0 to 7 correctYou
A: For punishment 13. Soiree
B: Just for fun A: Mistake C: Hate need to do this more
C: As a last attempt B: Slip of tongue D: Ready often.
D: For inviting trouble C: Style
8 to 12 correctGood,
D: Evening gathering 20. Correct spelling?
get the Scrabble
7. Fish tale A: Milennium board out.
A: Fairy tale 14. Clever clogs B: Millenium Above 12Bravo!
B: A big lie A: Very clever C: Milennium Keep it up!
C: Priceless B: Stupid D: Millennium
textdoctor2@gmail.com

INDIA LEGAL December 31, 2016 81

 SATIRE/ DILIP BOBB
The New Currency
W
ITH one stroke of his Mont
Blanc pen, the prime minis-
ter has welcomed us to a new
India. God created the perfect world in
seven days, ours will take a little longer-
50 days. While the nation takes note
of the change or changes its notes, it has
spawned an entirely new vocabulary.
Here are the most popular.
AD/BC: Used to stand for Anno Domini
and Before Christ, the dating system
that separated the old and the new.
Now, it stands for After Demonetiza-
tion and Being Cashless, also meant
to separate the old from the new.
BFF: One of the most visible changes
demonetization has wrought can be
seen on social media, where corrections
have taken place regarding the identity
of BFF, or Best Friends Forever. Lovers,
college mates or colleagues have hastily
been replaced by RM, as in the
Relationship Manager at your local
bank. Never have so many owed so
much to so few.
PrayTM: Paytm may be raking in the
money, but most people are now
switching to PrayTM, which is the holy
ritual they perform every day in front
of ATMs hoping for a miracle that will
allow it to disgorge some cash. ATMs
have been garlanded and have had
holy water sprinkled on them accom-
panied by religious chants, the most
common being May (His) dispensa-
tion prevail.
82 December 31, 2016
Cashualty: Refers to the
millions who have become
victims of the sudden
move to a cashless society,
with close to 90 people
dying of shock, commit-
ting suicide or from med-
ical problems associated
with endless hours of
standing in a queue.
Cashualty figures are
expected to rise.
UdayShankar
OK Tata: This was the most
visible slogan across India, stamped on money from your own bank.
the back of Tata trucks and goods carri-
ers. It has now been replaced by a more Standing: Used to refer to the stature of
visible slogan: No Cash which has an individual in society. Now, it
been plastered across ATMs and bank describes the position the entire coun-
entrances since November 8. In a liter- try is in as it waits to gain entry to a
al sense, it means the same as OK Tata. bank or an ATM booth.
Sideways Mobility: Post-demonetization, Daily Wager: The person who is
the most popular mass movement has employed and paid on a daily basis.
been the sight of cards being swiped on Post-demonetization, daily wager is the
POS machines. It has introduced a new gamble you take every day in trying to
phrase in business schoolssideways get hold of some cash.
mobility.
Cashless Society: Also titled Cheque de
Black Buck: Used to refer to an antelope India, which describes the situation the
found in India and Nepal. Now, it country is in, thanks to the RBI being
refers to illegal notes, which, post- unable to match supply and demand.
demonetization, are on the endan-
gered species list. Mitron: It used to mean friends, a
phrase used frequently by Modi. Now,
Withdrawal Symptoms: The agonizing the urban dictionary describes it as a
process of de-addiction. Nowadays, it large group of unsuspecting people
refers to the agonizing feeling of not about to be hit by something they will
being able to withdraw your own take a long time to recover from.
.