SINGLE

MOTHERS
Supreme Court to the rescue

The verdict is a breath of fresh air for women - Brinda Karat

10

NDIA
EGAL
I L
July 31, 2015

Atal Bihari Vajpayee

Farooq Abdullah

www.indialegalonline.com
`100

DULAT
UNPLUGGED
The former
intelligence chief
pens a startling
new chapter
about intrigue
and deception
in Kashmirs
politics 24

Omar Farooq

AS Dulat

VYAPAM
HORROR:
More troubles
in Chouhans
kitbag 30

BIKRAM
VOHRA:
Jungle law
in India 42

IIMs AND FTII:

Mounting
rebellion 48

LETTER FROM THE EDITOR

INDERJIT BADHWAR

KASHMIR: NOT AN
OFFICIAL SECRET
O self-respecting journalist should want
Menon brings out in his interviewthat the
to become a part of the me-too-brigade:
Kashmir problem, Indias number one national
the herd instinct that propels so many of
security headachestill festers because of bungus to jump on to the pack-journalism
ling and sins of commissions and omissions that
bandwagon of a breaking story and
play lollypop-like into the ever-ready-to-stumpclaim I was there the fastest with the mostest.
you Pakistan wicket-keepers hands.
Alas, there are moments in history when the comIm happy Dulat has written this book because
pulsions of analyzing or explaining news moments
Kashmir was very much a part of my life in the late
force you to bring yourself into the picture. That in
eighties until the mid-nineties, after which, for a
itself is not such a bad thing provided your ego or
period, I had to avoid going to the Valley because I
self-serving back-slapping does
was on a militant hit list for taknot obscure or obliterate the
ing a strong position against
The Kashmiri is
truth or at least an approximaterrorist violence in my articles
taught as a child that for India Today. I write this
tion of it.
only to demonstrate that Dulat
I use the word approximahe is the subject of
is correct in gauging the volatiltion deliberately because
the Dilli Durbar.
ity of the Kashmiri issue
nobody knows entirely how history evolveswhether it is a
Anybody who makes prone to sudden, mercurial
shiftsand the changeability of
combination of mythology, faca pact with Dilli is
the mindset of ordinary
tology, historiography, imaginabetraying Kashmir to Kashmiris and their leaders.
tion, vendetta, vindication or
Briefly, I covered Kashmir
pure fiction. Or none of the
India. He feels the
from 1986 to 1991, and then
above. Then what is it?
same about Pakistan. returned to cover the 1996 elecPerhaps we will never know
tion which has been described
the gestalt of it. But we can
by Dulat as a political master-stroke. I saw the
strive to know at least some of the components
Congress-NC alliance between Rajiv Gandhi and
through books, articles, and transcripts of speechFarooq Abdullah emerge in 1986 and then the
es in order to come to a deeper understanding of
fatally flawed and rigged February 1987 election in
issues that need resolution, based on politico-legal,
which the wildly popular, youth-oriented MUF
social and psychological illumination in order to
party was trounced and moderates like Abdul
ward off future conflict.
Ghani Lone of the Peoples Conference were
All of this lands me bang into the middle of the
hounded out of Handwara by NC goons. I wrote
me-too syndrome. This is in connection with the
about that election: Congress may have won an
cover story based on the explosive book by Indias
election but India has lost Kashmir.
top operative in Kashmir in the 1990s, former
The consequent backlash, within the next couintelligence chief AS Dulat, which gently reminds
ple of years was the emergence of the gun,
usas reviewer Ajith Pillai writes, and Ramesh

INDIA LEGAL July 31, 2015

LETTER FROM THE EDITOR

UNVEILING
THE TRUTH
(From left) These
three books tell the
real story
about Kashmir

Dulat writes about the game played by

Kashmiris and India, and fills a yawning
gap about what transpired in the 1990s
in the spy-versus-spy HUMINT game.
street battles, political assassinations, repression,
mass marches, bombings, disappearances. India
had played into Pakistans hands. Since the late
1940s, after Indian troops helped Kashmir trounce
and repel the Pakistani invaders, who had tried to
take Kashmir by force, Pakistan had not succeeded
in training and sending armed militants to try and
destabilize Kashmir on the ideological premise of
the two-nation theory that Muslims are a separate
nation and Pakistan is their natural homeland.
It is remarkable that while Pakistan had been
able to arm Khalistani militants in Punjab, it had
failed to achieve the same result in Muslim-majority Kashmir.
This is largely because the Kashmiris are fiercely independent. After all, in 1948, most of the
innocents butchered and raped in Anantnag and
Baramulla by the Pakistani invaders were themselves Muslims. Historically, Kashmiris had fought
the Afghans, Mughals, Dogra rulers, and Maharaja
Ranjit Singh. Their concept of Kashmiriyat was
and isbased on their historical fight against, and
then submission to, outside rulers who treated
them with disdain.
That is why the concept of azaadi is so deeply
ingrained in the Kashmiri psyche.
The various legal resolutions on the Line of

July 31, 2015

Control, the Ceasefire, UN observers, plebiscite,

passed in the United Nations as well as Article
370, while kept alive as debating points in
Kashmir, do not really impact the internal reality
of the Kashmiri psyche. The Kashmiri is taught as
a child that he is the subject of the Dilli Durbar
and anybody who makes a pact with Dilli is
betraying Kashmir to India. He feels the same
about Pakistan.
But he knows the real world. India, for the sake
of its own ideological secular identity and unity
will never cede Kashmir. The Kashmiri knows this.
He may wave the Indian flag at times but, always,
with two fingers crossed behind his back. India has
learned to control Kashmir through a combination
of politics, democracy whenever possible, force
when necessary, undercover operations, money,
bribes, sting operations, chicanery, jingoism, and
cajoling puppet leaders. The Kashmiris have been
smart enough not to escalate violence to such an
extent that it would become a full-fledged armed
rebellion inviting fearsome retribution. Both know
where to draw the line. Both sides play the game.
Kashmiris are rewarded handsomely by India
as well as from across the border. In their politics
of blackmailall Kashmiri parties participate in
thisthey use either the Pakistani or the Indian
flag, whichever comes handy.
Indian politicians keep Kashmir alive because
it is a handy tool to whip up nationalist fervor.
Pakistan does the same because without claiming
Kashmir on the grounds of its Muslim majority,
the underpinning of their ideological identity as an
Islamic state would collapse.

And so, the game goes on. This is the game that
Dulat writes about so engagingly, and in the
process, fills a yawning gap about what transpired
in the 1990s in the spy-versus-spy HUMINT
gamefar more effective than warfare or
encounter battles in creating and weaning leaders to the Indian side. His account of the Shabir
Shah game of nerves is brilliantly reconstructed,
though I wish he would talk a little more about
what we journalists called Dulats Boys or the
friendly militants like Kuka Parrey who gave
Pakistani operatives the fright of their lives.
The Kashmir dilemma is beautifully summed
up by MJ Akbar in Kashmir: Behind the Vale:
Kashmir lies at the edge of Indias borders and at
the heart of Indias consciousness. It is not geography that is the issue; Kashmir also guards the frontiers of ideology. If there was a glow of hope in the
deepening shadows of a bitter partition, then it
was Kashmir, whose people consciously rejected
the false patriotism of fundamentalism and made
common cause with secular India instead of theocratic Pakistan. Kashmir was, as Sheikh Abdullah
said and Jawaharlal Nehru believed, a stabilizing
force for India.
According to the books summary, Kashmiriyat
is the identity and culture that has blossomed
within the ring of mountains for thousands of
years. Akbar records Kashmirs struggle in the century to first free itself from feudal oppression and
then enter the world of modern India in 1947.
Placing the mistakes and triumphs of those early,
formative years in the perspective of history, the
author goes on to explain how the 1980s have
opened the way for Kashmirs hitherto marginalized secessionists. Both victory and defeat have
their lessons; to forget either is to destabilize the
future. Kashmir and the mother country are inextricably linked. India cannot afford to be defeated
in her Kashmir.
Where Akbar left off, Dulat pitches in to take
the narrative farther. But there are other important books that fit beautifully into the puzzle.
Governor Jagmohans book My Frozen Turbulence
is a scathing indictment of Delhis abysmal misunderstanding of the Kashmir issue and of the
Kashmiri psyche and the policy of benign neglect
alternating with gratuitous political gamesmanship and interference that farther fueled militancy
and violence in Kashmir just when successful
doses of good governance under governors rule
had helped to pacify much of the Valley.

Brigadier Amar Cheemas The Crimson Chinar

is a brilliant perspective on how India keeps blundering in its approach to Kashmir. He relies heavily on BK Nehru, former governor, Kashmir and
Indira Gandhis cousin, in pinpointing the roots of
discontent, starting with the arrest of Sheikh
Abdullah, the Lion of Kashmir, in 1953, which
virtually rendered the states constituent assembly
a puppet grouping followed by a series of rigged or
uncontested elections until 1976 which proved
Indian claims of democracy in Kashmir a farce.
But Cheema is correct in pointing out that the
Sheikh had himself become a corrupt and authoritarian leader and had completely rigged the election to the constituent assembly itself. History
repeated itself in the 1987 election, largely fought
on the corruption issue. The Farooq Abdullah government was widely perceived as venal to the core
and the Sheikh Abdullah dynasty was as unpopular as the Shah of Iran before his downfall.
For Rajiv Gandhi to have allied with this corrupt party and then look away as the election was
openly rigged and brazenly manipulated was the
last straw. And both Kashmir and India are still
paying the price. Prime Minister Narendra Modi
learns quickly from history and tends to avoid the
pitfalls of his predecessors. So far his Kashmir initiatives have been sensible. Each Indian PM writes
his own chapter to the Kashmir story. One can
only hope that Modis chapter will be fresh and
someone in his administration will have learned
the lessons spelt out in the books written by Dulat,
IL
Akbar, BK Nehru, Jagmohan, and Cheema.

COMPLEX ISSUE
AS Dulat is correct in
gauging the volatility
of the Kashmiri issue,
prone to sudden,
mercurial shifts

editor@indialegalonline.com
INDIA LEGAL July 31, 2015

JULY 31, 2015

ISSUE. 22

Editor
Inderjit Badhwar
Managing Editor
Ramesh Menon
Deputy Managing Editor
Shobha John
Executive Editor
Ajith Pillai
Business Editor
Shantanu Guha Ray

ACTS & BILLS

Policy peril
The new amendment in insurance laws will force
insurers to be more vigilant in detecting fraudulent
claims, writes SHANTANU GUHA RAY

Political Editor
Bhavdeep Kang
Associate Editor
Meha Mathur
Deputy Editor
Prabir Biswas
Art Director
Anthony Lawrence
Deputy Art Editor
Amitava Sen
Graphic Designer
Lalit Khitoliya
Photographer
Anil Shakya
News Coordinator/Photo Researcher
Kh Manglembi Devi
Production
Pawan Kumar

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July 31, 2015

No room for compromise

The Madras High Court revokes its judgment on rape
mediation after castigation by the Supreme Court, writes
RAMESH MENON
GLOBAL TRENDS

SPOTLIGHT

Mob meanness

42

Various acts of vigilantism in India show that mob fury

and primitive justice have become the norm in India.
BIKRAM VOHRA analyzes the psyche behind it
EDUCATION

None of your business

48

The HRD ministry seeks to take control of the

prestigious IIMs. AJITH PILLAI asks if excellence will
be compromised if government interference increases.

CFO
Anand Raj Singh
VP (HR & General Administration)
Lokesh C Sharma
Circulation Manager
RS Tiwari
Vice-President (Ad-Sales)
Vivek Mittal-09810265619

38

LEAD

Sleuths revelations
Former RAW chief AS Dulats book, Kashmir: The Vajpayee Years,
provides insights into the governments handling of militancy. Yet, it raises
questions about revealing state secrets, writes AJITH PILLAI. Also, an
exclusive interview with Dulat by RAMESH MENON
SUPREME COURT

Single and happy

In recognizing the rights of a single mother in a recent judgment, the apex
court has acknowledged changing family dynamics in Indian society, writes
BHAVDEEP KANG. Also, read BRINDA KARAT and ROSHNI SETH
PROBE

Mysterious deaths
As the toll mounts in the Vyapam scam, it could singe Madhya
Pradesh Chief Minister Shivraj Singh Chouhan and jeopardize his chair.
RAKESH DIXIT reports

22

Theater of the absurd

B-grade actor Gajendra Chauhans refusal to step
down from chairmanship of the FTII could harm the
institute immensely. PRACHI BARI reports .

Rainbow revolution

The Aegean impact

Why did European leaders misjudge the resilience and
pride of Greeks and assume they would buckle under
threats? GEORGE FRIEDMAN analyzes the referendum.
TERRORISM

52

Threat at the doorstep

62
66
72

The Islamic States advances in Afghanistan will have a

definite impact on South Asian security. How prepared are
we? COL R HARIHARAN assesses.

78

HEALTH

ROs reverses
A petition against reverse osmosis technology in the NGT
raises issues of water wastage and loss of minerals in this
process. DINESH SHARMA describes the pitfalls of RO.

10
30

60

The recent US judgment on same sex marriage could be

a harbinger of similar shift in other countries, including
India. A report by ROSHNI SETH

LEGAL EYE

Governors role
A recent order of the Allahabad High Court has created
a flutter about the extent of a governors discretionary
powers, writes VINAY RAI

56

REGULARS

VOLUME. VIII

Edit................................................................................3
Ringside........................................................................8
Quote-Unquote.............................................................9
Supreme Court............................................................16
National Briefs............................................................18
Courts......................................................................... 20
International Briefs.......................................................65
Campus Update........................................................ 81
People......................................................................... 82

Cover Design: ANTHONY LAWRENCE

Cover Photograph: ANIL SHAKYA

INDIA LEGAL July 31, 2015

QUOTE-UNQUOTE

I feel political credibility is

essential. People vote for us
and we have to live up to
their trust.

Mrs Gandhi received

numerous messages and
greetings from people across
the country and abroad,
asking why she didnt declare
the Emergency much earlier.

BJP leader LK Advani, on his

resignation from the Lok Sabha in
1996, in an interview to the
ABP group

RK Dhawan, Indira Gandhis closest

aide, on the Emergency, in The Indian
Express

Nothing on this scale of

interference has happened
before. Every institution where
the government has a formal
role is being converted into
where the government has a
substantive role.
Nobel laureate Amartya Sen
terming his stepping down from chancellorship of the Nalanda University
as an 'ouster', in The Times of India

Maharana Pratap is
the source of
inspiration, not
Akbar.
Rajasthan Governor
Kalyan Singh, questioning
the suffix great attached
to Akbar, The Economic
Times

Aruna

VERDICT
Deserves it! I daresay he does. Many that live deserve death. And
some that die deserve life. Can you give it to them? Then do not be
too eager to deal out death in judgment. For even the very wise
cannot see all ends.
JRR Tolkien, The Fellowship of the Ring
8

July 31, 2015

Does any MP
understand what
this NJAC is all
about?
MP and senior advocate
Ram Jethmalani reacting
to discussion in Supreme
Court that NJAC received
overwhelming support in
parliament and states

I dont think it is proper to take

such a decision. Whoever has
violated any law, the
legal course must, and
will follow.
Former law minister and
Karnataka Governor HR
Bhardwaj, on indications
that the Congress may
disrupt the monsoon
session on the Lalitgate
issue, in The Indian
Express

English bolne se gyan nahi

hota (one doesnt gain
knowledge just by speaking
in English). One should
speak English when needed.
Home Minister Rajnath Singh, while
addressing students in Noida, The
Times of India

Attending business chambers

functions is a complete
wastage of time because when
it comes to asking them to do
something for the country they
do very little than talking.
Union Women and Child Development
Minister Maneka Gandhi, referring to
ASSOCHAM, FICCI and CII at an
ASSOCHAM seminar in New Delhi

INDIA LEGAL July 31, 2015

SUPREME COURT/ Single Mother Judgment

Natural
Injustice
Bizarre notions stopped single
mothers from getting their due for too
long, until the Supreme Court intervened
By Bhavdeep Kang

ATHERHOOD is a wellregarded theory, but motherhood is a fact. Indian

jurisprudence has yet to
take satirist PJ ORourkes
formulation to heart. What
should have been a womans
natural and inalienable rightguardianship of her childrenmust be wrested
from courts of law, inch by inch.
For a single mother to apply for a
passport, open a fixed deposit or take
out an insurance policy in the name of
her childacts a single father can perform without a second thoughthas
taken decades of struggle. Even so, filmmaker and unwed-single-mother-bychoice Kavita Lankesh must secure a noobjection certificate from her daughters
biological father before she can get the
childs passport renewed! One can only
imagine how Neena Gupta, pioneering single

FACING HURDLES
Film-maker Kavita Lankesh
had to secure an NOC from her
daughters biological father, before
she could get her daughters
passport renewed

10

July 31, 2015

mother to her daughter by Vivian Richards,

managed way back in 1989.
It took another ten years for the Supreme
Court to recognize, in 1999 (Githa Hariharan
vs Reserve Bank of India), that a mother had
as much right as a father to be the natural
guardian of a child. Ruling on the RBIs
refusal to accept her signature on an application to open relief bonds for her minor son,
the SC said the parents had equal rights.
Last fortnight marked a new milestone in
the single mothers quest for recognition.
Justice Vikramajit Sen, generally regarded as
progressive and modern in his outlook,
observed: In todays society, where women
are increasingly choosing to raise their children alone, we see no purpose in imposing an
unwilling and unconcerned father on an otherwise viable family nucleus. Setting aside a
previous judgment of the Delhi High Court,
the Supreme Court ruled that a single
mother could be the sole legal guardian of
her child, even without the explicit consent of
the father.
The Delhi High Court had held that the

mother in question, a Christian, could not be

recognized as sole guardian unless the father
of the child was heard; she would have to
provide his name and address, so that he
could be served notice.
Was it a landmark judgment? Perhaps
not. It did not go beyond the immediate
prayer for recognition of an unwed mothers
right to sole guardianship of a minor, where
she is demonstrably able to care for him and
the father, being married, plays no role in the
childs life. The ruling makes it clear that if
the absent biological father suddenly
surfaces and challenges guardianship, he can
do so. But it did recongize that in most legal
systems, priority, preference and pre-eminence is given to the mother over the father
of the concerned child.
Despite Githa Hariharan, horrors are still
visited on single mothers. Lankesh recalls the
ordeal of getting her daughters passport
renewed. Standing in line, she was grilled by
passport officials on her marital status or lack
thereof. They could not understand that I
wasnt divorced or abandoned and that my

child was not adopted. I simply didnt want

to be married to the father of my child,
she says.
Bizarrely, the Bombay High Court was
informed last year by a government counsel
that an unwed mother who wants a passport
for her child must state whether or not it was
conceived as a result of sexual assault! Clause
3.2(a) of the passport manual put out by the
Ministry of External Affairs stated that an
unwed mother was required to file an
affidavit stating how she conceived and why
she does not want the fathers name on the
passport. Was it desertion, divorce or rape?
The case related to a womans prayer
regarding the passport authoritys refusal to
include her step-father or her mothers name
in her passportdespite the fact that the
mother had custody. Earlier this year, the
court directed the state government to
amend the passport manual with reference
to single mothers.
If that is a perplexing exercise, its only
because the law has thus far bent over backwards to protect the rights of the father.

In smaller towns
and rural India,
the child of a
single mother can
still be denied
admission in a
municipal school
because the
fathers signature
is missing from the
application form.

AHEAD OF THE TIMES

Actor Neena Gupta with her
daughter Masaba

INDIA LEGAL July 31, 2015

11

SUPREME COURT/ Single Mother Judgment

SUPREME COURT/ Single Mother Judgment

Journalist-turned-spiritual activist
Madhav Kant Misra has filed a petition in SC,
which if approved, may do away entirely with the
fathers name on official documents.

MOVING TOWARDS
PARITY
(Above right) Justice
Vikramjit Sen delivered the
landmark SC judment in
favor of single mothers
(Below) Author
Githa Hariharan faced RBIs
refusal to accept her
signature on an application
to open relief bonds for her
minor son; the SC then
ruled that both parents had
equal rights

Never mind that fatherhood isnt a fact, only

theory! The rights of the biological father, the
step-father, the divorced/separated father,
the MIA (missing in action) father were
given primacy. The July 6 judgment is important in that it acknowledges that an absentee
fatherno matter what the reason for his
absenceis dispensable.
If journalist-turned-spiritual activist
Madhav Kant Misra has his way, the next
step will be doing away entirely with the
fathers name on official documents. He has
filed a petition in the Supreme Court, essentially saying that motherhood is a fact, that is,
a mothers identity is certain and definite.
For the mother not to be given primacy was
against the basic law of nature. He questioned the practice of not identifying the
child with the mothers name. A SC bench
headed by Chief Justice HL Dattu himself,
has issued notice to all state governments,
asking them to respond to the petition.
Some commentators have objected to the
ruling on the grounds that it infringes on
personal law and amounts to batting for a

The verdict is a
breath of fresh air for
women shackled by
patriarchal barriers
uniform civil code. Former law minister
Salman Khursheed does not agree. The ruling is limited to the issues raised in the petition in question. It has nothing to do with
personal law. However, when such cases
come up in future, no judge is likely to set
this aside and rule otherwise, he says.
How do these judgments translate on the
ground? In metropolitan Delhi, schools do
not question a mothers signature. The
Central Board of Secondary Education
allows students to use either the father or
mothers name. For a single mother to open a
bank account in her minor childs name is
now a breeze. But in smaller towns and rural
India, the child of a single mother can still be
denied admission in a municipal school
because the fathers signature is missing from
the application form. And passport authorities still demand that spouse name be
endorsed when applying for a minors passport. The Vikramjit Sen ruling will hopefully
lead to that procedure being amended.
What is urgently needed now is a clearly
stated official policy, making the mother not
only a co-equal natural guardian of the
child but fully capable of being the sole
guardian. The pernicious Section 6 of the
Hindu Minority and Guardianship Actcreatively interpreted by the SC in favour of gender justicewhich grants natural guardianship of a Hindu minor to the father and after
him the mother, must be turned on its head,
once and for all. IL

N July 7, the Supreme Court had to

ask India to grow up and accept the
fact that a woman can take good
care of a child all by herself. And
then it pronounced a judgment on
an unwed mothers guardianship of a child born
out of wedlock. While declaring this, Justice
Vikramjit Sen also overturned a judgment by
the Delhi High Court, which held a contrary opinion.
Across the country, the SC judgment has been
hailed as a landmark one. It is a breath of fresh air
for thousands of women who continue to live
behind old, suffocating patriarchal barriers.
Being a single mother in India always touches
the raw nerve, the woman is ridiculed and
harassed. She is often the subject of pity and criti-

Communist Party of India

(Marxist)s BRINDA KARAT hails
the landmark judgment
delivered by the Supreme Court
granting guardianship rights to
unwed mothers. She spoke to
SHANTANU GUHA RAY

cism. And to have a biological child out of wedlock, comes with loads of unwanted social stigma
and shame.
I am happy that the court recognised the same.
I think what is very encouraging and interesting is the fact that the countrys apex court has
understood the predicament of a woman who is
unable to put the name of her son or daughter as
nominee to her savings and insurance policies.
The social media, Facebook and Twitter, are full of
such examples of women who have tremendous
financial liquidity and need no men to groom
their wards.
There are cases where daughters and sons have
rued how their passports and college certificates
have names of the father and not the mother. I
think its cruel, inhuman. Indias convoluted system insisted that the childs biological father must
be identified in official documents. Why? No one
had an answer.
The court has allowed women their right to
privacy. What is ironical is the fact that the court
observed a lot of women were choosing to bring up
children alone. It means a change has already set
into the Indian society. I think the Indian political
system should now wake up and elaborate on the
need for the Indian society to evolve, so that such
fears dont stalk women. Ideally, having a child
should not lead to severe complications. Actually,
it does not in many countries. Why should it happen in India?
The time has come to change ourselves. Weas
a societymust evolve. Dont we know a mother is
best-suited to take care of a child born out of
wedlock? The Supreme Court, brilliantly, identified affection or mamata as the reason why the
mother should have the right to a child born out
of wedlock.
INDIA LEGAL July 31, 2015

13

SUPREME COURT/ Single Mother Judgment

The times are

a changin
The SC
judgment on
single mothers
reflects how
society has
evolved
By Roshni
Seth

Amitava Sen

14

July 31, 2015

HE Guardians and Wards Act,

1890, requires that a notice be
given to the parents of a minor
before a guardian is appointed;
and a guardian cannot be
appointed if the father is alive and is not unfit
to be the guardian of the minor. In normal
course, it is the fathers right to be involved in
the childs life and his welfare but what if he
forsakes his responsibilities in the upbringing of his child? Should the law be applied in
such a case?
On July 6, the Supreme Court delivered a
path-breaking verdict in a case where a
woman belonging to the Christian faith questioned the need to send notice to the father,
saying any disclosure would create problems
for both parents. She asserted her right not
to disclose the parentage, arguing that
in her case the father had nothing to
do with the upbringing of her child.
The court held that, where the
father has not exhibited any concern for his offspring, giving him
legal recognition would be an
exercise in futility.
The biological father who
has abandoned his duties and
responsibilities cannot be constituent to the well-being of the
child. The archaic legal provisions such as seeking consent of
an unwilling father for guardianship of the child only reflects backwardness
and
patriarchal
notions prevalent in society.
As a result, unwed mothers
and their children have faced
social stigma through the ages.
The judgment rightfully establishes the parentage of a child with the

unwed mother and also recognizes that the

unwed mother has the fundamental right to
privacy. The unwed mother cannot be forced
to publicly notify the name and particulars of
the father of the child. The court has also
directed that that the fathers name is not
required in case an application is received
from an unwed mother for issuance of birth
certificate of her child.
The petitioners agony was compounded
on account of her being a Christian. A Hindu
unwed mother can get the childs sole
guardianship as Section 6(b) of the Hindu
Minority and Guardianship Act, 1956, makes
specific provisions with respect to natural
guardians of illegitimate children, and gives
primacy to the mother over the father.
Islamic law accords custody of illegitimate
children to the mother and her relations.
The Supreme Court in this case did not go
according to the tenets of Christian religion.
Instead it ruled for the rights of an unwed
Christian mother. Last year the Supreme
Court took a similar liberal stance when it
allowed Muslim parents the right to legally
adopt a child although Muslim personal law
does not recognize adoption. The judgment
held that Indians cutting across faiths have
the right to adopt a child.
The courts in India have been continuously expanding equitable rights for all genders, including transgenders and members of
all religious communities, and have been
advocating implementation of Uniform Civil
Code.
Former
Chief
Justices
YV
Chandrachud and VN Khare in the famous
Shah Bano and John Vallamattom cases
mentioned that a Uniform Civil Code will
help the cause of national integration by
removing contradictions based on ideologies.
Judgments such as these reflect the
changing social norms and highlight the
need for equal rights to people of all faiths to
address religious inequalities and social
prejudices prevalent in society.
It would be naive to expect that one judgment of the Supreme Court alone will redress
injustices faced by unwed mothers. But the
judgment is certainly a significant move forward and would help a large number of
surrogate mothers, unwed mothers and sex
workers with children. IL

SUPREME COURT

Trial begins for ship crew

HE Supreme Court has directed
that 35 members of the crew of the
US patrol vessel, MV Seaman
Guard Ohio, will be tried by a trial court
in Tamil Nadu. The crew was arrested by
the Tamil Nadu police in October 2013
for carrying arms and ammunition on
board and entering Indian waters without
permission. The ship was intercepted by
the Coast Guard and detained at
Tuticorin Port in Tamil Nadu. The crew
was taken into custody under the Arms
Act and the Essential Commodities Act.

Parties and RTI

N a move that may bring in transparency as far
as political parties are concerned, the apex
court issued notice to six national parties, asking them to explain why they did not fall under the
ambit of RTI, as public authorities. The court
was hearing a petition filed by lawyer-activist
Prashant Bhushan which pointed out that despite
the 2013 Central Information Commission (CIC)
order that political parties are public authorities,
the parties did not reveal information sought by
the public under RTI, especially those related to
funding. The petition also claimed that the CIC
had no punitive powers to act against the parties
and sought the apex courts intervention. The
court issued notices to the center and the Election
Commission in this regard. They need to respond
within six weeks.

ML Sharma to
probe Ranjit Sinha
N a fresh twist to former CBI director Ranjit Sinhas case, the Supreme Court has chosen former CBI
special director ML Sharma
to head a probe team to
investigate Sinhas
conduct on the
visitors diary
issue. The former
CBI director has
been accused of
meeting
people
involved in the 2G and

July 31, 2015

coal scams at his residence. It is

alleged that the visitors were trying to
influence the case. The court had earlier decided that a probe was
necessary to ascertain whether the alleged meetings
had any bearing on the CBI
probe into the scams.
The investigating agency
had expressed its reservations against such a probe,
pleading that it will be a dent on
its credibility.

HE parents of a child who

lost her eyesight soon after
birth in 1996, was awarded
compensation of `1.8 crore by
the Supreme Court. Fixing the
blame on the Government
Hospital, Egmore, in Chennai,
where she was born, the court
asked the Tamil Nadu government and the hospital to shell out
the amount. It cited gross negligence by the doctors, who were
monitoring the baby after her

T
A relook at
defamation laws
HE Supreme Court has started taking another
look at criminal defamation as a punishable
offense. It was considering several petitions
before it that stated that penal provisions in
defamation cases had been done away with, in
several countries.The court observed that defamation
laws under IPC had been framed under the British
Raj. The court questioned whether the time is now
ripe to tone down the severity of the defamation laws.
It asked the government for a comprehensive
response on how defamation laws could be decriminalized before it takes a final decision.
The sections in question are 499 and 500 of IPC
which prescribe a maximum of two-year jail term for
defamation offenses.
Subramanian Swamy, Rahul Gandhi and Arvind
Kejriwal had filed petitions stating that the penal provisions throttled the freedom of speech.

premature birth.
The apex court accepted the
plea of the girl's parents that the
doctors didnt inform them about
the impending risk of their child
losing vision due to her premature birth. The parents alleged
that the doctors did not prescribe
any test to ascertain the risk and
take preventive measures.And
when the infant did show indications of blindness, it was just
too late.

Illustrations: UdayShankar

No need to disclose medical bills

Justice Sabharwal no more

Creche facility withheld

HE Supreme Court did not

entertain the plea of an
RTI activist that medical
expenses of judges and their
family members must be in the
public domain. The court ruled
that it would be an assault on
their
right
to
privacy.
Subhash Chandra Agarwal
wanted the information to be
made public under RTI. The

ORMER chief justice of India (CJI) YK Sabharwal

passed away recently. He was 73 years old. A distinguished judge, Sabharwal became a Supreme
Court judge on January 28, 2000 and was CJI from
November 1, 2005 to January 13, 2007. During his
seven-year tenure in the Supreme Court, Sabharwal
gave several landmark verdicts, which included asking
the states to usher in reforms in police departments and
upholding the power of courts to scrutinize laws listed
by the center under the Ninth Schedule of the
Constitution.

N a sudden turn of events, the Supreme Court has

decided to put on hold its plan to inaugurate a
crche facility in the court premises on July 1. The
decision was taken after a petition was filed by advocate Anindita Pujari, who pleaded that the proposed
crche had several shortcomings.The minimum
salary fixed for helpers in the creche was less than
the minimum wages prescribed by the Delhi government. Moreover the admissible age of children, fixed
between 6 months to two years, was unreasonable
and should be raised to six years, he pleaded.

16

The Madras High Court had

earlier struck down all legal
proceedings against them, ruling that the
Arms Act could not be slapped on them.
The apex court quashed the high court
order and ruled that the accused had
produced no evidence to claim immunity
from the Arms Act. It asked the trial
court to decide on the issue after examining the evidence. The apex court further ruled that it was for the trial court to
decide whether the ship had entered
Indian waters without permission.

Penalized for negligence

court felt that the information

sought could lead to disclosure
of ailments suffered by judges,
which would be a breach of
their right to privacy, and
thus not acceptable. Agarwal
had challenged the Delhi High
Court verdict, objecting to the
medical expenses of judges
being made public, in the
apex court.

INDIA LEGAL July 31, 2015

17

NATIONAL BRIEFS

Katju approaches Supreme Court

FORMER SC judge, Justice Markandey
Katju, has petitioned the apex court to
expunge two resolutions passed against him,
on March 11-12 by the upper and lower
Houses of Parliament. The judge claimed that
his rights as a private citizen to express his
views freely had been violated by the resolutions. Katju had called Mahatma Gandhi a
British agent and Subhash Chandra Bose a
Japanese agent on his social media posts
on March 10, earning the displeasure of
the lawmakers.

The former chairperson of the Press Council

of India alleged that parliament did not
follow the principles of natural justice, as he
was not heard. He pointed out that the
resolutions were retrograde in nature and
will block liberal thinking in India.
He even questioned parliaments
powers to condemn remarks made
by a private citizen. The posts that
included the remarks were only academic
in nature, the former Supreme
Court judge averred.

Kejriwal wants
referendum

Bar Council okays

foreign law firms
THE GOVERNMENTS proposal to
open the legal sector to foreign players
has got the nod from the Bar Council of
India (BCI) and the Society of Indian
Law Firms (SILF). But on one condition: Indian law firms should be
allowed to operate from those countries
given the go-ahead. The BCI and SILF
felt that the legal sector cannot remain
isolated when other services are being
integrated globally.
Meanwhile, the government has
begun consultations on the
gradual opening up of legal
services to foreign law firms
with the safeguard that the litigation services will
remain the exclusive domain of Indian
lawyers. With India evolving as a hot
destination for multinational companies, foreign law firms are eyeing the
legal market. Some of the firms have
approached the Supreme Court seeking
permission to operate in the country.

Law against
clinical trials soon
STRINGENT RULES for clinical trials
and punishment for violators is on the
cards. The apex court, in a directive to
the health ministry, had ordered it to
frame guidelines for clinical trials of
new drugs. Under the proposed law,
companies will have to pay a fine of up
to Rs 3 lakh for the violation of protocol even if the patient is not directly
impacted. Companies will now have to
take approval from the Drug
Controller General of India (DCGI)
prior to clinical trials of any medicine.
Whether a particular death, injury or
bodily harm can be attributed to the
trial will be decided by DCGI. It will
also have the authority to decide the
quantum of compensation.

THE DEBATE on full statehood for Delhi

is back in the news. Chief Minister Arvind
Kejriwal has dispatched a letter to the
urban department to draft a law to facilitate it and to install government machinery to conduct a referendum on statehood
for Delhi. The Constitution is silent on the
issue of referendum and has no provision
for it. According to the constitutional
experts, achieving full statehood for Delhi
through a referendum, involves a constitutional amendment which requires twothirds majority in Parliament. Meanwhile
the state law department will discuss the
legal issues pertaining to a referendum.
Demand of statehood for Delhi was part
of AAPs poll manifesto.

Bar Council to scrutinize all educational degrees

IN THE light of former Delhi law minister
Jitender Singh Tomar having acquired a fake
degree, the Bar Council of India (BCI) has
decided to scrutinize the educational qualifications of all its members. The BCI has been
criticized for enrolling Tomar on the basis of
an allegedly fake degree certificate. The BCI,

18

July 31, 2015

the topmost statutory body governing enrollment, practice and conduct of lawyers across
the country, has amended its rules to provide
for identifying fake lawyers. The BCI
Certificate and Place of Practice (Verification)
Rules 2015 empower its decision making
panel to oust fake people from court campus.

COURTS

Professor
gets bail
HERE is relief for Professor GN
Saibaba of Delhi University. Arrested by the Maharashtra Police in
2014 under the Unlawful Activities
(Prevention) Act for his alleged links with
Maoists, Saibaba has been granted
three-months bail by the Bombay High
Court on medical grounds. Saibaba,
incarcerated in Nagpur Central Prison,
was earlier admitted to a private hospital
on the courts direction.
The court now held the view that Saibabas medical condition warranted not
only medical attention but he also needed
to be united with his family in Delhi. It
observed that his fundamental rights
would be violated if he was not granted
bail. The wheelchair bound professor,
suffering from degeneration of the spine

A piece of advice for Thampu

Nestle India to
export Maggi

and other neurological complications,

has been permitted to travel to Delhi.
The court directed Saibaba to furnish
a personal bond of `50,000. It also
barred him from having access to any
communication device such as mobiles
or laptops at his house.

N a major embarrassment for the

state, the corruption case moved
against Prakash Mishra, CRPF
DG, by the Biju Janata Dal government in Odisha was quashed by the
Odisha High Court.
The court felt that the state vigi-

20

July 31, 2015

OT good in India but good enough to be exported. Nestle

India has been allowed to
export its Maggi brand of noodles by
the Bombay High Court. The court
passed the order after the Food
Safety and Standards Authority
(FSSAI) stated that it had no objection. The FSSAI had on June 5
banned the sale of all varieties of
Maggi noodles in India. This ban continues although Nestle India has challenged it in the Bombay High Court.
Maggi was banned by FSSAI due
to the presence of excessive quantities of lead and Monosodium Glutamate (MSG) in its samples. Nestle
informed the court that following the
FSSAI ban, the company was incinerating and destroying Maggi packets
in large volumes. FSSAI took the
stand that exporting Maggi was
preferable to destroying it if Nestle
India felt the noodles were safe for
consumption. But a few days later
after the court verdict, FSSAI CEO
pleaded that the order be altered.

Baseless FIR

F late the principal of St Stephens

College, Valson Thampu, has been
in the news for all the wrong reasons. This has led the Delhi High Court to
observe that there must be a reason why
everyone is unhappy with him and why he
has been facing flak from students, teachers and the staff.
The court made this observation while
hearing a case involving SK Dash, an
administrative staff of the college.
Thampu had suspended Dash in
2014, accusing him of gross misconduct. The latter challenged the decision

lance department had filed a baseless FIR to fix Mishra. The case,
registered in September 2014, had
even ruined his chances of being
considered for the CBI chiefs post
that year.
Mishra, a former state DGP, was
accused of doling out favours to
certain suppliers in 2009 while he
was CMD of Odisha State Police
Housing and Welfare Corporation.
The director of Vigilance was
pulled up by the court for not ensuring that the probe was fair before
registering the case. The court
found that there was no evidence,
prime facie, to implicate Mishra.
The officer had approached the high
court pleading that the FIR be
struck down. He also alleged that
his side of the story was never
sought in the probe.

and rejoined college in April

following a settlement order
from the division bench of the
High Court. Dash later sought
contempt proceedings against
Thampu for making him work
under deplorable conditions.
Thampus lawyer de-nied the
allegation.
The court has now asked the
principal to resolve all issues with Dash.
It has advised the two that they should
take into consideration the image of the
college and sort out their differences.

Film in trouble
HEN you have a film with a character dressed
up like Lord Shiva mouthing objectionable
language and demanding money from people
who wish to be photographed with him, you are asking
for trouble.
After being restrained by a Delhi
court from an all-India release on
account of objectionable content, the Sunny Deol-starrer,
Mohalla Assi, hit another
controversy. A local court
in Muzaffarpur, Bihar,
directed the police to lodge
an FIR against director Dr
Chandraprakash Dwivedi,
actors Sunny Deol, Ravi
Kishan and Sakshi Tanwar,
and five others for abusing Hindu deities in the film.
The court gave the order
on a complaint filed by a lawyer,
who submitted that the movie was
still available on the internet and upon watching
it, he was shocked by the abusive language used
against Hindu deities.
The court will decide the next date of hearing once
the FIR is filed.

W
Shun politics of
vendetta
ELIVERING its judgment in a 2003 rioting
case in Madipur, West Delhi, a Delhi court
blamed political parties which, while in
opposition, incite mob violence for unsettling the
ruling government. It urged parties to shun politics of revenge and instead stand behind the ruling
establishment during a crisis and help it defuse it.
The court noted that the police is often seen as
a mute spectator in cases of mob violence and
observed that it should equip itself with special
skills to contain the damage to public property
and human lives, when such violent incidents
occur. It also insisted upon speedy trial in such
cases so that the guilty dont go away scot free. It
sentenced six persons involved in the riot to a
one-year jail term.

Compiled by Prabir Biswas

Illustrations: UdayShankar
INDIA LEGAL July 31, 2015

21

LEAD/ Books/ AS Dulat

An Insiders
Telling Tale
The former R&AW chiefs book provides an
insight into how governments actually
function and how they deal with insurgencies
By Ajith Pillai

PERSONAL ACCOUNT
(Below) Dulats narrative is
not a comprehensive history
of Kashmir during the
Vajpayee years

HIS is not the first time that

those who served in Indian
intelligence have penned their
memoirs. But what sets AS
Dulats Kashmir: The Vajpayee
Years apart is that it is written with a
reporters instinct of presenting recent history in a this is how I saw the story unfold format. But in doing so, the writer has not
excluded the human element and drama
from the narrative. This makes the book
readable, entertaining and credible. In fact,
so much so that for a moment the reader may

even forget that the ex-spook (Dulat served

with the IB, headed R&AW and was in the
PMO as part of Prime Minister Vajpayees
Kashmir peace initiative) has held back certain uncomfortable facts from his eyewitness
account of what transpired since terrorism
reared its head in the Kashmir Valley in 1988.
For instance, those who have covered
Kashmir will note that the shocking human
rights violations that were often brushed off
as collateral damage inflicted on innocents in
the fight against insurgency finds no mention
in the book. Neither does it offer any insight
on the prolonged deployment of the army
and paramilitary in the Valley and its fallout
on the civilian population. That said, it needs
to be pointed out that the reader should not
mistake Dulats narrative to be a comprehensive history of the period covered by the
book. This is a frank, personal and emotive
account of a journey during which the author
saw and observed much. In fact, distilling
those memories into an engaging tale is the
charm of the book.
Dulats ringside view of events has already
ruffled several feathers. There are many who
are upset that he has written what he has.
The Abdullahs are cut up. The PDP is also
unhappy. There have also been discussions

on TV on whether the writer should have

pointed out strategy flaws in the handling of
the Kandahar hijack. Was he making state
secrets public when he revealed that insurgents willing to come over-ground were lured
by the government with money and other
sops? And should he have shared information about the intrigue, fears, apprehensions,
priorities and suspicions that influenced our
political leadership?

uch of what has found its way into

the book is not new for those who
have followed events closely in
Kashmir or have an understanding of how
governments and intelligence agencies function. Perhaps, its the way Dulat has put it
that has made many see red. Here is a sampling of his candid observations: Using
money to win people over is perhaps the
most effective tool at the disposal of intelligence officers not just in Kashmir, and not
just in the subcontinent, but all over the
world. Most agents are paid agents. If in
Kashmir, for instance, you find someone who
is working for the ISI, you just offer a lot
more money than it does. Perhaps he will be
afraid of getting killed by the ISI but at the
very least you have neutralised him.

Corrupting a person by giving him money is

not only a lot more ethical than killing him,
but a lot smarter in the long run. And no one
has come up with a better way of dealing with
Kashmir. Money in Kashmir goes back a
long, long way.
Such frank admissions and the human
element which peppers the narrative makes
Dulats book a gripping read. For instance, he
recalls how he received a surprise call from
Namrata, Vajpayees adopted daughter, a
week after he joined the PMO. Welcome to
the family, she said, adding: Now that you
are here, were reassured. Please look after
the two old men. Theyre your responsibility.
The reference was to the 76-year-old
Vajpayee and Brajesh Mishra, principal secretary to the PM and NSA, who was four
years his junior. Again Dulats description of
the all powerful Brajesh Mishra, who most
senior ministers in the government did not
see eye to eye with including LK Advani and
Jaswant Singh, is something most journalists
missed or dared not write about. He was not
a social namby-pamby drinker. He drank
everywhere and drank only Scotch. Also, he
would talk about how, when he went to New
York, the first thing he wanted to do was go
and listen to some jazz. He loved jazz and
often spoke of the jazz in New York....At the
same time, however, you would never see
him in anything but a safari suit ..., he writes.
Dulat was obviously unimpressed by
Mishras dress sense!
Buy this book because it gives you an
insight into government functioning and
how it dealt with separatists as well as political parties in insurgency-bound Kashmir.
And in between all the serious business,
there are delightful nuggets that have great
entertainment value. This is an insiders story
that is at times unbelievable, yet true. For
instance, who would have thought that separatists as well as militants were in constant
touch with the government and their
demands and creature comforts were often
met by the state. If Dulat had tweaked it
appropriately, he could have passed his story
off as a political thriller.
But as the old saying goes, sometimes
truth is stranger than fiction. IL

READERS CHOICE
(Left) While writing about
insurgency in Kashmir,
Dulat has not excluded the
human element and drama
from his narrative

Kashmir: The
Vajpayee Years
By AS Dulat with Aditya Sinha
Published by Harper Collins
Pages: 342; `599

Photos: UNI

22

July 31, 2015

INDIA LEGAL July 31, 2015

23

LEAD/

Interview/ AS Dulat

Money has
been there in the
Kashmiri DNA
A

MARJIT SINGH DULAT has

provoked a hornets nest both
within the ruling BJP and the
Opposition with his book, Kashmir: The
Vajpayee Years. He is a former special
director of the Intelligence Bureau and
served as chief of the Research and
Analysis Wing. After he retired, he was
appointed as an advisor on Kashmir to
the Prime Ministers office. In his own
words, it was a rise he had never imagined when he joined the IPS in 1965. It
certainly never even crossed his mind
that he would end up in the PMO when
he joined the IB in 1969 as a young assistant superintendent of police. His journey has been punctuated with numerous
historic events. In a freewheeling interview to India Legals Managing Editor
RAMESH MENON, he talks about his
career as one of Indias top intelligence
sleuths. Excerpts:
24

July 31, 2015

What triggered off the idea that you

should write this book and let the world
know some small truths?
This is a question as complex as Kashmir. I
had a 27-year association with Kashmir.
When I left the government in 2004, many
publishers approached me but it was not
appropriate at that time. But now I have
had the time to think. I have learnt more
after retirement and wanted to pen it down.

You have said that Brajesh was the

main cause of tension between
Vajpayee and Advani. How did it
manifest itself ?
Vajpayee and Advani had great regard
for each other. In one of his interviews,
Brajesh suggested that the post of NSA
should be scrapped as it brought it in
conflict with the home ministry as both
dealt with national security.
Is it true that many of the ministers
were not kept in the loop when
major decisions were taken by the
PMO during Vajpayees reign?
Not at all. In fact, it was a great cabinet. Not only did you have a PM like
Vajpayee, you had a deputy prime minister like LK Advani and ministers like
George Fernandes, Yashwant Sinha
and Jaswant Singh who were strong
personalities. George Fernandes
complemented both Vajpayee and
Advani as he was an excellent
defence minister.

Everybody thinks that

their system is the
best. The UPA said
that they would not
negotiate with
terrorists. Jaswant said
that everyone
negotiates when the
need arises. Even the
Israelis have been
known to negotiate.

Do you see any similarity between

the style of Vajpayee and Modi?
They are very different people.
Vajpayee was heading a difficult coalition. But, Modi can do what he likes as
he has a comfortable majority. Modi
can do much more for Kashmir and
Pakistan than Atalji or Manmohan
Singh could do.
Is Modi doing enough?
He is meeting Nawaz Sharif. He is also
visiting Srinagar during Eid which is
very good. No PM has ever visited
Kashmir during Eid. This is imaginative thinking on his part. The alliance
of the PDP and BJP in J&K can be
taken forward if they bond well. It can
bring Jammu and Kashmir together.
This is what we need today.
You said that the NDA goofed up on
the 1999 IC-814 hijacking. It will be
good if you graphically describe what
exactly happened.
The hijacking bit was handled

Why have so many eyebrows been raised

since your book has come out?
Some say it is too forthright. But If one has
to tell a story, it should be told truthfully.
I have tried not to offend anyone. But in
the flow of telling the story, some do get
offended.
Brajesh Mishra, principal secretary in
the PMO and NSA called the shots in the
Vajpayee government? How did he
became so powerful?
Brajesh became powerful as he was close to
the Prime Minister. He was the Principal
Secretary and also the first National
Security Advisor. It is a heady cocktail and
so he was naturally powerful. But he did
not flaunt his authority. He oozed confidence and did not need to demonstrate
authority. He also delegated confidence.

Photos: Anil Shakya

LEAD/ Interview/ AS Dulat

to secure the release of passengers?

Zilch. There are so many stories like
the fact that boxes of cash were sent.
Had there been a plane full of cash it
would have been hijacked.
Farooq Abdullah was furious over
the deal with terrorists during IC 814
hijack. He vented his anger for three
hours and then rushed to Governor
Girish Chandra Saxena to resign.
The governor calmed him down with
two glasses of whiskey and then he
relented. This is what you say. What
exactly went through Farooq
Abdullahs mind at that time?
Farooq was opposed to it in principle.
He wanted the theatre to play out to
the full. When we got to the Raj
Bhavan, the governor told him to calm
down and not to throw in the towel.
Farooq said that the idiots do not know
what they are doing. The governor said
that Delhi had probably thought this

NOTHING FAULTY
ABOUT IT
Dulat says that
besides the Amritsar
goof-up, Indian
response to the
hijacking of IC-814 in
December was apt

well in its totality. If you scrutinize it

today, we had 50 minutes in Amritsar
and it was an opportunity we did not
utilize. I cannot give an answer other
than this. KPS Gill was quite critical of
the way Punjab police handled it, saying it showed weakness.
What was the flaw?
There was no flaw. It was handled in
the best way we could. Other than the
Amritsar question. We all goofed up.
Everybody thinks that their system is
the best. The UPA said that they would
not negotiate with terrorists. Jaswant
said that everyone negotiates when the
need arises. Even the Israelis have been
known to negotiate.
Was it the fear of lives being lost that
resulted in no one taking a decision
or was it just bad strategy?
It was bad strategy. The safety of the
passengers was uppermost in the
minds of everyone. It was not an easy
call to take. In hindsight, you can say

26

July 31, 2015

out and we had to go with it. Farooq

then relented. He respected Governor
Saxena.
You did have open lines with
Kashmiri militants. How far was it
successful and what did it yield in
real terms?
Some say it yielded nothing. But it
yielded a lot. The 1996 election was
a crucial one as it revived the democratic process. Some militants came
over ground and some even came to
Delhi to meet Union Home Minister
SB Chavan.
Whatever happened to friendly militants who were being cultivated?
It helped a great deal in fighting militancy. Post 1996, we came to understand that dialogue was important
and much better than the gun. It was
a masterstroke of PM Narasimha Rao
to revive the democratic process.

It is said that politicians like Syed Ali

Shah Gilani and Mirwaiz Farooq and
other separatists were paid by both
sides (India and Pakistan)
People have been paid for ages in
Kashmir. It is nothing new. It was
always there since 1953. Money has
been there in the Kashmiri DNA.
How do you see the February 1987
rigged election in Kashmir that was
reportedly done with the full knowledge of Rajiv Gandhi and Farooq
Abdullah?
I was not there in 1987 and was posted
there only in 1988. It was not such a
big issue then. Kashmiri boys had
started going across. Pakistan had this
policy of a thousand cuts and 1987
was a catalyst of something that was
already simmering in the system.
At some point or the other, numerous leaders like Sheikh Abdullah,

Post 1996, we came

to understand that
dialogue was
important and much
better than the gun.
It was a masterstroke
of Narasimha Rao to
revive the
democratic process.
anything. But it was an unnerving
situation.
The hijackers initially wanted over
100 terrorists to be freed.
The militants asked for the release of
over 100 but we whittled it down.
How much do you think was the
payoff to the militants at Kandahar
INDIA LEGAL July 31, 2015

27

LEAD/

Interview/ AS Dulat

POWER CENTERS IN THE

VALLEY
(L-R) J&K Chief Minister Mufti
Mohammad Sayeed and
National Conference leader
Farooq Abdullah

weeks. This is how we function. Its a

very stressful life. Families get affected
very seriously. There is very little glamour. People think we live the life of
James Bond.

Farooq Abdullah and others have

played the India versus Pakistan
card, sometimes on the side of
India and sometimes on the side
of Pakistan.
Farooq never played the Pakistan card.
Whenever Kashmiri leaders come
under pressure, Pakistan provides a
fall-back position. It is a convenient
cushion to fall back on.
Do intelligence agencies take the
approval of the government before
establishing contact and offering
financial support to militants?
Nothing in our system can be done
without government approval. But
every time we do something, there is no
need to tell the government everything.
What would you say are the failings
of the Indian intelligence agencies
and what corrective steps should
be taken?
Having spent 30 years in the IB and
2 in RAW, I can never say that we have
had failings. We are as good as anywhere in the world. There are failings
and every time something goes wrong,
intelligence is blamed. 9/11 would not
have happened without an intelligence

28

July 31, 2015

Mufti Mohammad
Sayeed was one of the
tallest leaders in
Kashmir. He had a
complex
relationship with
Farooq. He wanted to
compete with the
Abdullahs.
failure. It happens all over the world.
There are manpower shortages in
the IB in particular. RAW needs language experts and also some Muslim
officers. Agencies need more recognition from the government as they
function under extreme stress and it is
not just a job. It requires expertise. It is
not a bureaucratic job.
The winter of 1989-90 was so bad
that all the central government officers
in Srinagar left because of threats and
only the IB and RAW officers stayed
put. We were also under threat. We did
not leave. We lost four officers in five

Should intelligence agencies like

RAW and IB be held accountable to
parliament? Should their accounts be
subject to audit? Or do intelligence
agencies have to operate in utmost
secrecy and remain opaque?
Time will come for accountability. But
it should not come all of a sudden. We
are an open democracy and a great one
at that. But we are not the United
States of America.
Is it a healthy trend for politicians to
use the IB for political reasons?
Not at all. It has been used before but
let me say, mostly sparingly.
Was the Kargil War an intelligence
failure? Did India become complacent after Pokhran-II? It is said that
with Pakistan and India having
achieved nuclear parity there was a
perception within the political leadership that there would be no conventional war. There was even talk of
paring down troops along the LoC.
The intelligence bureau had sent a
report indicating unusual activity that
something was amiss. The Kargil
Committee said that this report did not
find its way to everyone who should
have been informed. If it is going to the
home ministry, it is taken for granted
that they would keep relevant people
informed.
Did the bonhomie shown during

ALL CHANNELS OPEN

Former Prime Minister Atal
Bihari Vajpayee with
Kashmiri leaders, as part
of NDA governments
efforts to restore peace in
the Valley

Vajpayees bus ride to Lahore add to

the overall complacency?
There was no complacency. We know
that the worst damage to intelligence
services are during times of friendship.
You have said that you used to enjoy a
drink with Mufti Muhammed Sayed.
How would you describe him as a
politician and what was his relationship with Farooq Abdullah?
Mufti Mohammad Sayeed was one of
the tallest leaders in Kashmir, little
shorter than Farooq. He was extremely
astute. He was also a union home minister. He had a complex relationship
with Farooq. He wanted to compete
with the Abdullahs. In 2014 we saw
that he had become a regional force.
How do you rate the current
governments policy on Pakistan and
Kashmir?
They are maintaining a go slow. The
status quo is never good enough.
You were the special advisor on
Kashmir in the PMO during
Vajpayees time. What was your point
of view then on the Kashmir issue
and what is it today?

My point has not changed. I learnt

much from Vajpayee. We needed to
move forward in Kashmir and we
needed to end permanent confrontation
with Pakistan.
During his visit to Lahore, Vajpayee
said hum jung na hone denge (we wont
let a war break out) and Pakistanis
loved him for that. Kashmiris loved it
when he said let us talk within the
ambit of humanity. Anybody who talks
to anybody cannot talk outside the constitution. Why are we repeating this all
the time? When the Hurriyat came and
talked to Advani, it was not outside the
constitution.
How has Pakistans stance on Kashmir changed?
It keeps changing. The most realistic
position was what Musharaff had taken
when he said that whatever is acceptable to the Kashmiris is acceptable to
Pakistan. When people now start
mouthing views saying lets go to the
UN resolution, there is no point.
Vajpayee and Manmohan Singh said
that they wanted peace. That is the
point. When Vajpayee visited the
Minar-e-Pakistan, he wrote in the
visitors book that a strong and stable

Pakistan was in the interest of India.

Why didnt Vajpayee take a strong
stand on Modi after the 2002 riots?
You have said that he was upset
about it.
I am not aware I am not aware of his
wanting to take action or if he was
upset. He did say that maybe Gujarat
was a mistake and may have affected
election results (in 2004).
Why do you think the Agra summit
failed? What really went wrong?
The Pak perception was that Advani
was the architect and spoiler of Agra.
The Indian perception was that it was
almost done and just slipped off at the
last moment. Tactically, Pakistan made
a mistake by putting too much pressure
on the Indian prime minister.
The BJP claims that the book is not
your voice but the voice of Aditya
Sinha, your co-author. He has claimed that he had to dress up the book.
Its a fact that Aditya Sinha helped me
to write this book and maybe, without
him, this would not have been finished.
But its not his voice. The voice is mine.
He is only the playback singer. IL
INDIA LEGAL July 31, 2015

29

PROBE/ Vyapam Scam

SKATING
on Thin Ice
The Madhya Pradesh chief minister faces an uncertain future as the
job and college admissions racket snowballs into a big political storm
By Rakesh Dixit in Bhopal

ECOMING Madhya Pradeshs longest serving

chief minister has been
Shivraj Singh Chouhans
long cherished goal. But
will his dream run end as
yet another case of coming
so close yet being so far? Right now, Chouhan
is just four months short of surpassing his
predecessor Digvijaya Singhs 10 year record
as CM. But the raging fire of the Vyapam
admissions and appointments scam threatens to singe Chouhans grand ambitions.
From a confident and proud CEO of his state,
he has become a veritable political wreck.
And questions are being asked in Delhi, and
that too within his own party, the BJP, about
whether he will survive this agnipariksha.
The scam hit the national headlines at a
time when the BJP is battling an onslaught of
corruption charges which have already corroded the clean image of the Modi government. But the Vyapam racket is unlike
the allegations of impropriety leveled at
external affairs minister Sushma
Swaraj and Rajasthan Chief Minister
Vasundhara Raje. For a start there is
no Lalit Modi to blame for leveling
wild charges. Many of the facts that
have become public are based on
police investigations, court observations and the government record.

30

July 31, 2015

FALL FROM
GLORY
Shivraj Singh
Chouhans
reputation as a
quiet and
effective leader
has taken a hit
following
Vyapam

The swindle involves thousands of victims,

hundreds of crores of rupees, accompanied
by the stench of death. The list of those
linked to the scam, who have died under
mysterious circumstances, seems to be growing by the day and BJP spokespersons have
been having a tough time defending the indefensible. If sources in the BJP are to be
believed, there is a big question mark on how
long the party will rally around Chouhan. Or
will it leave the Madhya Pradesh chief minister to his devices and let him handle the crisis
on his own?
TRAIL OF DEAD
The big blow for Chouhan came on July 9
when the Supreme Court ordered a CBI
probe into the multi-crore admissions and
recruitment scam. The court order followed
an unprecedented nationwide outrage over
mysterious deaths of over 40 accused and
witnesses related to the multi-layered swindle that has caused over 2,000
arrests, including those of
politicians, bureaucrats, job
racketeers, middlemen and
businessmen, apart from
a large number of medical students and their
parents. Nearly 500
suspects are still absconding while 55
chargesheets have been filed in the states 22
courts against the benefi-

ciaries of gross subversion of pre-medical

and recruitment tests conducted by the
Madhya Pradesh professional examination
board since 2008.
Although the scam had snowballed into a
mega corruption scandal, a crafty Shivraj
Singh Chouhan managed to keep his chin up.
His refrain that the Special Task Force (STF)
of the state police was doing a fine job under
the supervision of the Madhya Pradesh High
Court may have evoked sharp protests from
the Congress. But people in Madhya Pradesh
had been largely insouciant. After all, corruption in medical college admissions and government jobs is acknowledged as a given in
this part of the world. It is only after the
relentless reports about the spate of unnatural deaths hit the national media that trouble for Chouhan began mounting.
The most disturbing of them all was the
death of Akshay Singh, a TV journalist on
July 4. Although the real cause of the scribes
death is yet to be ascertained, a shaken
Shivraj did everything he could to ensure
that his reputation did not suffer. He even
went to Akshay Singhs house in New
Delhi to offer a job to the deceased
scribes sister and financial support
which the bereaved family rejected.
Chouhan should have seen
red when the special investigation
team (SIT), set up in November
2014
by
the
Madhya Pradesh
High Court to

The real
reason for
Chouhan
agreeing to a
CBI probe was
BJP president
Amit Shahs
call, asking
him to spare
the party more
opprobrium.

PROTECTED BY
PROTOCOL?
Governor Ram Naresh
Yadav is enjoying
immunity only because of
the post he holds

INDIA LEGAL July 31, 2015

31

PROBE/ Vyapam Scam

IT GETS MURKIER
(L-R) Two deans of Jabalpur
Medical College, Dr DK Sakalle
and Arun Sharma have died
mysteriously over the last one
year, and so has MP
governors son Shailesh Yadav

It was only
after the
mysterious
deaths hit
national
headlines that
a shaken
Shivraj did
everything he
could to
ensure that his
reputation did
not suffer.
32

July 31, 2015

monitor the progress of the STF investigation, reported 23 unnatural deaths of those
accused and witnesses in the scam on May
27. The SIT was led by retired judge justice
Chandresh Bhushan. Its status report to the
court containing names of the 23 dead
immediately brought other suspected deaths
into sharp focus. Media speculated that the
actual number of dead might be over 40. In
its subsequent status report to the high court,
the SIT too updated the death figure to 32
with nine more deaths being detected.
Most of the dead were young men
between 25 and 30 years. The SIT report created a sensation in the local media. Till then
only four suspicious deaths had hit the headlines but the police declined to probe any of
them. Medical student 19-year-old Namrata
Damors death was explained away as suicide
that had occurred long before the scam surfaced. Her body was found on the railway
track near Ujjain on January 6, 2012. A student of Indore medical college, Namrata had
allegedly cleared the pre-medical test in
2009 fraudulently. A panel of three doctors,
who conducted her postmortem, had
declared she died of violent asphyxia which
pointed to murder. Yet, the Ujjain police
closed the case as a suicide.
Likewise, the police refused to see any
foul play in the death of Governor Ram
Naresh Yadavs son Shailesh. His body was

found at his Lucknow residence in March

2015. The STF was on the lookout for
Shailesh for helping eight candidates clear
the contract teacher test after taking `3 lakh
each from them. The police also did not
deem it fit to probe the gruesome death of
Jabalpur Medical College dean Dr GS Sakalle
who allegedly committed suicide by pouring
kerosene on his body at his residence on July
4, 2014. Dr Sakalle was scrutinizing the list of
medical students who got admission since
2008. And Vijay Patel, an accused in three
cases of job rigging, was found dead in April,
2015 in a hotel owned by a BJP leader in
Kanker (Chhattisgarh). The MP police
passed the buck on to their Chhattisgarh
counterparts.
The government explained away the
deaths as caused by road accidents, suicides
and illnesses without promising a deeper
probe. But Bhushan, assured the media that
he would urge the high court to order a probe
by the STF into the causes of these deaths. In
the days that followed, the media patiently
waited for the high court to issue such an
order. No one in the state establishment
reckoned that it was a proverbial lull.
It was on June 28 that the storm broke.
On that day, veterinary surgeon Narendra
Singh Tomar, 28, died in an Indore jail under
mysterious circumstances. He was in custody
since February for helping two medical stu-

dents clear the pre-medical test in

2009. Outrage over his death was
compounded by the death of Dr
Rajendra Arya in a Gwalior hospital.
Dr Arya, who was accused of arranging impersonators to appear in
exams, was on bail since February
last year after being arrested.
There was more media frenzy as
Aaj Tak channels special correspondent Akshay Singh suddenly collapsed after allegedly frothing in the
mouth in distant Meghnagar town
of Jhabua district on July 4. He had
gone to interview the father of
Namrata Damor who had mysteriously died. Singhs death assumed a
more sinister dimension when a
whistle blower and forensic expert,
Dr Anand Rai, alleged that the journalist may have been insidiously
administered a slow poison that
reacts late but fatally with the chemicals in the body. The recovery of
Jabalpur Medical College dean, Dr Arun
Sharmas body in a New Delhi hotel the following morning had the media more furiously dubbing Vyapam as the most murderous
scandal India had ever seen.
HE FINALLY BLINKED
Chief Minister Shivraj Singh Chouhan was,
predictably, a very perturbed man as the
national media screamed murder and the
opposition gunned for his resignation with
renewed vigour. Already scarred by Lalitgate,
the BJP leadership was rattled by the vociferous outburst. The chief minister, who would
earlier depute his ministers to deal with
media queries on the issue, finally acquiesced
to the party leaderships advice to do the
explaining himself. In the press conference
on July 5 at his residence in Bhopal
Chouhans characteristic lan was missing.
He stonewalled all questions on a CBI
probe by pointing out that the Madhya
Pradesh High Court was satisfied with the
STF enquiry and the Supreme Court too had
endorsed the lower courts decision to reject
petitions for a CBI probe in the past. Therefore, he argued that agreeing to any independent probe at this stage would tanta-

mount to insulting the high court and he

would not do that. I have utmost regard in
the Indian judicial system, he repeated ad
nauseam in the press meet, only to take a Uturn the very next day.
On July 6 the chief minister called
media-persons to tell them that he was going
to write to the high court that the state government intended to handover the STF
probe to the CBI in view of growing public
pressure. He attributed his decision to the
public perception that he had something to
hide by opposing a CBI investigation. Later,
however, it transpired that his sanctimonious
reverence to public perception (lok laj) was
not the reason behind his volte face. The real
reason was BJP president Amit Shahs call,
asking him to spare the party more opprobrium on account of the Vyapam scam.
The chief ministers move was viewed as
a desperate attempt to make a virtue out of
necessity. A clutch of four petitions for a CBI
probe was already slated to be heard in the
Supreme Court on July 9. It was almost a
foregone conclusion that in the light of the
damning disclosures in the scam, particularly over the 40 suspicious deaths, the
apex court would have no hesitation in

THE EPICENTER
The Vyapam office in
Bhopal

Congress
leader
Digvijaya
Singh alleges
the chief
minister is also
involved. He
replaced his
name with that
of Union
Minister Uma
Bharti in a
tampered
excel sheet.
INDIA LEGAL July 31, 2015

33

PROBE/ Vyapam Scam

Admissions & job fixing: A sordid story

It started as a simple case of corruption but snowballed into

a major scandal, involving a trail of unexplained deaths

VYAPAM Explained
Vyapam is the acronym of Vyavsayik Pariksha
Mandal or Professional Examination Board of
Madhya Pradesh which conducts examinations for
professional courses and recruitments to government jobs. The scam first surfaced in 2007 when it
was discovered that corrupt officials were taking
bribes to fix admission to medical colleges and
recruitment of police personnel and teachers

Modus operandi
 Instead of the candidate an impersonator

appears for the examination. This is done with the

connivance of the board officials and the invigilators. Payoffs are made at every level
 Candidates who have paid money are given high

percentages by those marking papers

 Seating arrangements in the exam hall is made

to accommodate a dummy candidate capable of

scoring high marks and his answer sheets are
passed on to the actual candidate.

in exams filed across Madhya Pradesh

July 2013: Around 20 impersonators arrested by Indore Crime Branch
and FIR registered against them. News
of scam breaks out
July 2013: Dr Jagdish Sagar arrested for allegedly helping hundreds of
candidates to cheat in a medical
entrance exam
August 2013: All criminal cases
registered in connection with examination conducted by Vyapam handed
over to special task force (STF)
September 2013: MPPEBs exam
controller Pankaj Trivedi arrested for his
alleged role in the scam
November 2013: The STF investigation reveals that Vyapam officials
devised similar fraudulent methods in
other recruitment exams, including

I thought about this

seriously last night
and I came to the
conclusion that
there should be CBI
probe in this matter.
Shivraj Singh
Chouhan, chief
minister of Madhya
Pradesh

Death is a natural
occurrence, be it
in the jail or on rail
(train), one who
has been born
will die.
Babulal Gaur,
home minister of
Madhya Pradesh






34

July 31, 2015

food inspector selection test and sub

inspector and police constable recruitment test etc
December 2013: FIR against exhigher education minister, Laxmikant
Sharma, filed in the case
February 16, 2014 Opposition
Congress reveals information sourced
from a whistleblower, alleging the
STF was protecting the MP Chief
Minister
April 2014: Twenty-seven students
of Mahatma Gandhi Memorial College,
Indore, expelled for having allegedly
used fraudulent means to clear the
PMT-2012
June 2014: STF arrests former state
technical education minister and BJP
leader Laxmikant Sharma for his
alleged involvement in contractual
teachers recruitment scam and






 Governor Ram Naresh Yadav

The Special Task Force found evidence against
the governor and filed a chargesheet against
him for alleged involvement in MPPEB forest
guard recruitment exam scam. His officer on
special duty Dhanraj Yadav too is accused in the
case and was arrested by STF in 2013. His son,
also involved in the racket, was found dead
under mysterious circumstances in March this
year in Lucknow.
 Shivraj Singh Chouhan, Chief Minister
There are allegations of his involvement which
has seriously dented his reputation.

Forget that
journalist (Akshay
Singh) who died. Is
he more important
than I am?
Kailash Vijayvargiya,
cabinet minister of
MP, recently named
national general
secretary of BJP

I am scared. I
Vyapam scam and BJP must be ashamed
am a minister but
all deaths so far
of the latest
still I am scared. I must be thoroughly
developments in this
will convey my
investigated and the case. The PMs silence
fears to Shivraj
guilty punished.
over the Vyapam scam
Singh Chouhan. Something must be raises a lot of suspicion.
Uma Bharti,
done to prevent
D Raja, CPI leader
Union minister
more deaths
Arvind Kejriwal, chief

for water
minister of Delhi
resources

Mystery Deaths

Many twists and turns

2008-12: 55 cases of impersonation

Dramatis personae

constable recruitment scam

November 2014: Madhya Pradesh
High Court rejects Congress Leader
Digvijaya Singhs petition, seeking CBI
probe in the scam. However, to ensure
the impartiality, court orders formation
of an SIT to monitor the ongoing probe
February 2015: FIR filed against
Governor Ram Naresh Yadav in the
scam
March 2015: Shailesh Yadav, son of
Governor Ram Naresh Yadav, found
dead at Governors official residence in
Lucknow
July 7, 2015: An Aaj Tak journalist,
a Jabalpur college dean and a woman
sub-inspector found dead in a span of
48 hours. All three were involved in one
or the other with the case
July 9, 2015: Supreme Court
orders CBI probe






There are several

figures doing the
rounds of the
number of accused
and witnesses who
died. Some reports
put it at 45, others at
36. The state
government claims
these figures are
exaggerated. Here
are some of the
controversial deaths:

Vikas Singh Thakur

Accused. Died on
November 21, 2009, in
Barwani due to illness
and adverse drug reaction

the PMT exam scam

died in Gwalior on
June 14, 2010, in a
road mishap.His family says that his death
is related to the scam.

Anshul Sachan
MBBS student linked to

 Sudhir Sharma

Pramod Sharma

Middleman in the
scam. Died in Gwalior
in a road mishap on
November 28, 2012.

 Dr Jagdish Sagar
He helped around 140 students get selected to
the medical courses illegally during 2009-12. He
arranged impersonators, largely sourced from
Uttar Pradesh. He ran the alleged racket since
late 1990s.
 Pankaj Trivedi, MPPEB Examination
Controller

Namrata Damor

Arvind Shakya

 OP Shukla
Officer on Special Duty to Laxmikant Sharma.
He is accused in the scam. He allegedly took
over `85 lakh as bribe from candidates for helping them clear the medical entrance test.
An OSD to Laxmikant Sharma. He was involved
in police constable recruitment examination
scam of 2012. Initially he absconded, but later
surrendered.

Named in police constable exam scam. Allegedly

committed suicide in April
2013. His family says he
was bumped off.

A Ist year student of

MGM Medical College,
Indore. Allegedly committed suicide in January
2012. However, her postmortem report reveals
she was murdered.

 Laxmikant Sharma, ex-Education

Minister, MP
He has been accused of influencing results in
the contractual teachers recruitment and constable recruitment exams. According to the STF,
he recommended names of at least 15 candidates for recruitment as constables.

Akshay Singh
Special Correspondent
with Aaj Tak investigating
the Vyapam scam. Died on
July 4, 2015. He was in the
best of health and conducting an interview when
he suddenly collapsed.
Was declared dead on
arrival at the hospital.

Arrested in September 2013 and currently in

judicial custody. The state anti-corruption police
has recovered around `2.5 crore and numerous
properties from him.
 Anand Rai, activist
Dr Anand Rai was the first to expose the scam
through a PIL which led to investigation in the
scam. He reportedly receives regular threat
calls, and has also alleged that contract killers
were hired to kill him.

INDIA LEGAL July 31, 2015

35

PROBE/ Vyapam Scam

Nearly 500 suspects are absconding while

55 chargesheets have been filed in the
states 22 courts against the beneficiaries
of gross subversion of the exams.

ITS MUSIC
FOR CONGRESS
Digvijaya Singh is
doing his best to
capitalize on this scam

upholding the petitioners pleas. And precisely that happened. The Supreme Court
also expressed displeasure with the Madhya
Pradesh High Court for washing its hands
off a similar petition of the state government a day before. The high court had
refused to act on the state governments petition for a CBI probe, citing the four petitions
pending before the Supreme Court.
On the same day, the Supreme Court also
served a four-week notice to the Madhya
Pradesh Governor Ram Naresh Yadav and
the union government on a petition seeking
his removal from his post. The governor was
accused of taking `3 lakh each from five candidates who appeared for a professional
examination board exam. He allegedly took
the money from them in the Raj Bhawan
premises. The governors then officer on special duty, Dhanraj Yadav, is already in jail on
similar bribery charges. The governors
son, Shailesh, was also involved in
the racket. Yadavs continuation
in his post had become untenable after an FIR was lodged
against him in April this year
on the Madhya Pradesh high
courts direction to the STF.
However, the same court
stalled any action against the
governor a month later accepting
his contention of constitutional
immunity.
SNOWBALLING EFFECT
When Chouhan ordered setting up a STF to probe into
the Vyapam scam a month
after it surfaced in Indore
in July 2013, he probably
thought it a smart move
that would effectively
silence the opposition.
At that time, Shivrajs
popularity was at its
peak. The assembly

election in Madhya Pradesh was barely three

months away and the main Opposition, the
Congress, was too demoralized to make the
burgeoning scam a potent poll plank. His
gambit paid off. People bought into the chief
ministers assertion that he sincerely wanted
to get to the bottom of the case. Result: the
BJP returned to power in the election with a
bigger majority than before.
But the scam snowballed. Initially, it
looked like an expos of a homegrown nexus
of pre-medical test admission mafia and the
MP professional examination board officials.
But it metamorphosed into the biggest swindle of India as the boards examination controller, Pankaj Trivedi, started singing like a
canary in police custody. He confessed that a
dozen-odd recruitment tests conducted by
the board had been rigged since 2008. The
boards chief system analyst, Nitin Mahindras computer hard disk was a veritable
minefield where names of those recommending candidates were duly mentioned in excel
sheets. They included the governor, Union
Minister Uma Bharti, RSS leader Suresh
Soni, bureaucrats and their relatives apart
from middlemen and job racketeers. The
scam simply got bigger and bigger.

n Bhopal there is much speculation on

what will happen to the chief minister
once the CBI takes over the probe from
the STF. Like the governor, the chief minister
too is facing allegations of direct complicity
in the scam. He is accused of having tampered with an original excel sheet from a
hard disk in the Vyapam board office that
had the CMs name entered 48 times as a person who recommended candidates for a contract teachers recruitment test. Senior
Congress leader Digvijaya Singh alleges that
the chief minister had his name replaced
with that of Union Minister Uma Bharti in
the tampered excel sheet.
At the moment the chief minister is clearly skating on thin ice and will need all the
support of his well-wishers in the BJP high
command. But will party back him? Or will
his detractors seize the opportunity to settle
old scores? The chief minister looks visibly
shaken and unsettled and is already the
shadow of the man he used to be only a few
months ago. IL

ONLY THE STORIES

THAT COUNT
EVERY FORTNIGHT INDIA LEGAL WILL BRING YOU NEWS, ANALYSES AND
OPINION FROM THE SHARPEST INVESTIGATIVE REPORTERS AND MOST
INCISIVE LEGAL MINDS IN THE NATION ON MATTERS THAT MATTER TO YOU

WHO ISLKAFRAID
OF THE EMERGENCY?
Advanis fears spark off a national debate

Former law minister HR Bhardwaj, Seshadri Chari, Justice Mukul Mudgal, Rajeev Dhawan speak out

28

NDIA
EGAL
I
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INDIAL E
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www.indialegalonline.com

July 15, 2015

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ACTS & BILLS/ Insurance Act 1938

a large number of fraudulent policies would

flood the market. We have got to be on alert,
he warned. Manickam should know.

Anthony Lawrence

Time To Be Vigilant
A new amendment to Insurance Act 1938 imposes a three-year time limit
for insurers to complete verifications. After that a policy becomes valid and
cannot be cancelled
By Shantanu Guha Ray

T a recent conference in
Kolkata, worried officers of Life Insurance
Council, an apex industry body of life insurance companies, were
seen hurriedly formulating a centralized database of insurance
policies to detect fraudulent claims.
The database, they hoped, would be ready
by the end of this year and tackle what they
claimed was going to be one of the biggest
crisis of Indias insurance market. What is
the worry?

38

July 31, 2015

There is a new amendment to Section 45

of the Insurance Act 1938, which says that
verifications and due processes will have to
be completed within three years of a policy
being issued. This means that even if due
processes take longer, they will have to be
completed within this time-frame. The
amendment, claim experts, is a double-edged
sword. While on the one hand, it is a boon to
genuine policy-holders, there are also high
chances that it will give a fillip to fraudsters.
V Manickam, secretary-general of the Life
Insurance Council, said the new amendment
could see a rise in dubious policies. We fear

BUILT-IN SAFEGUARDS
The amendment is a tough one to handle.
The Act initially said: No life insurance policy can be called into question on grounds of
mis-statement or wrong disclosure after two
years of the policy coming into force. However, if the insurer is able to prove that the
claim was fraudulent, it need not be passed.
Manickam says this was a great safeguard, enabling insurers to call for investigation after a death claim was received. The
investigation was usually done within two or
three years of the policy being purchased.
And the claim was rejected if there was misrepresentation, mis-statement or non-disclosure while acquiring the policy. In the same
manner, all fraudulent claims were rejected.
But now, we are in a different zone altogether, Manickam told India Legal. He
added that the council was in the process of
short-listing a vendor who would offer technology to build and maintain a common
database where all 24 life insurance companies will share their policy data, just like
Indian banks.
The move has the blessings of the finance
ministry, with Arun Jaitley already urging
insurance companies to be on super alert
because of the new amendment.
OLD VS NEW
As per Regulation 8 of the IRDA
Regulations, 2002, the insurer must settle a
claim within 30 days of receiving all documents, including clarifications sought by
him. An insurance company can set a practice of settling the claim even earlier. If the
claim requires further investigation, the
insurer must complete its procedures within
six months of receiving the written intimation of claim.
The new amendment puts the onus on the
insurers to do proper background checks at
the time of underwriting a policy. Earlier, an
insurance policy could be called into question even after two years if any wrong disclo-

sure or mis-statement by the policy-holder

was discovered. In case of a wrong disclosure,
insurers could even reject a claim. However,
under the new rules, policies can no longer
be called into question after three years of
being issued.
Will a database alone be able to solve a
mammoth crisis?
In February this year, an insurance claim
investigator was attacked in West Bengal for
trying to probe a fraudulent life insurance
claim by a policy-holder. The investigator,
seriously injured, spent a little over two
months in a hospital.
UNDER THREAT
The incident triggered a flood of news
reports about similar incidents across India,
where many of those probing suspicious
claims were facing similar hardships. On
paper, the job of a claim investigator is to
review life insurance claims that look shady.
The investigatoran individual or a companycarries out a thorough investigation as
well as verification of death claims.
There has been a rise in individuals and
syndicates indulging in fraudulent claim filings, leading to a challenging environment
for investigators, says former Delhi Police
commissioner Neeraj Kumar. Individual
investigators were facing more difficulties
while doing their job as compared to specialized firms operating in this area,
he added. There are countless
cases where investigators looking
into death claims have been
attacked. For the last two years,
the number of criminals
involved in filing fraudulent
claims has almost doubled,
he said. Estimates from life
insurers also show that

Investigators
would now be
asked to play a
major role in
detecting frauds
before the
stipulated
three-year
period, so that
such policies can
be cancelled.
Life insurance
companies need
to be more
vigilant now.
Ashok Sarin, a
senior official with a
private life insurer

REALITY CHECK
V Manickam,
secretary-general
of the Life
Insurance
Council fears a
rise of false
claims as a result
of the new
amendment

INDIA LEGAL July 31, 2015

39

ACTS & BILLS/ Insurance Act 1938

there has been a 20-30

percent increase in fraudulent claims.
Kumar
said
that
abroad, insurers use data
analytics to identify transactions and processes that
require closer scrutiny.
But that does not happen
in India. It must, because
there have been several
cases where former insurance agents have been
involved in fraudulent
claims, he said.

WAKE-UP CALL
FM Arun Jaitley wants
insurance companies to be
more careful; Former Delhi
police commissioner
Neeraj Kumar feels
investigators have a tough
time ahead

With the revised

Insurance Bill
proposing that no
claim can be
repudiated after
three years of the
policy being in
force, even if a
fraud is detected,
the investigators
can do little,
say insurers.
40

July 31, 2015

ORGANIZED GANGS
Thankfully, the insurance
sector has woken up to this
menace, which includes
claims from non-existent
persons, which are generated by organized groups
operating across the country. Investigators are worried, ostensibly because there is not too much
cash in the business. Based on the size of the
sum assured, investigators are paid anything
from `15,000 to `1,50,000 to verify a claim.
If the insured sum is huge, only then do verification fees go up.
Kumar said he had reports that organized
groups operating in many pockets of north
India had expanded their business into
southern states. And acts of violence continue throughout the year.
The head of risks and claims in a private
life insurance company, who spoke on conditions of anonymity, said he had encountered
cases where the investigator was threatened
to give a report in favor of the claim being
passed. In many cases, such incidents are
not even reported by the investigating official. He simply resigns, citing some flimsy
reason. We do not know what the real case
is, adds Kumar.
Consider the legalities in case of a death
claim. Here, a claimant must submit the
written intimation as soon as possible to
enable the insurance company to start processing the claim. The claim intimation
should consist of basic information such as

policy number, name of the insured, date of

death, cause of death, place of death and the
name of the claimant. If there is need for further investigation, then the company informs
the family.
Now, how would this work under the new
amendment? With the revised Insurance Bill
proposing that no claim can be repudiated
after three years of the policy being in force,
even if a fraud is detected, the investigators
can do little, say insurers.
CLOSE SCRUTINY
Ashok Sarin, a senior official with a large private life insurer, says companies will now
begin investigations into insurance policies
and policy-holders even before a claim is
filed, so that potential malpractices can be
preempted. Now, investigators would be
asked to play a major role in detecting frauds
before the stipulated three-year period, so
that such policies can be cancelled, added
Sarin. So even though no life insurance policy can be called in question on the ground of
mis-statement or wrong disclosure after two
years of the policy coming into force, if the
insurer is able to prove that the claim was
fraudulent, it need not be passed. In short, it
means Indias 24 insurance companies must
quickly start sharing their database. Life
insurance companies need to be more vigilant now, stresses Sarin.
With banks getting benefits from CIBIL,
this proposed fraud-monitoring mechanism
will help insurance companies get all details
of customers and detect any fraud in disclosure and claims by policy-holders. The database could also help the council to study
claim patterns.
Sudhin Roy Chowdhury, former member,
IRDA, said if by 2020, India aims to achieve
insurance penetration of 5 per centequivalent to garnering $1 trillion premiumthen
insurance companies must stress on better
use of analytics to raise efficiency. There will
be a need for a robust underwriting process
so that all issues are flagged before the policy
inception. The insurer will have three years
to raise any objections regarding the insured
declarations, adds Roy Chowdhury. If that
happens, the amendment should be a welcome change for genuine policy-holders. IL

SPOTLIGHT/ Mob Violence

LAW OF THE JUNGLE

Increasing incidences of mob fury have shown India as an intolerant

nation, where acts of impropriety invite immediate retribution and death in
some cases. Why not let the courts mete out justice?
By Bikram Vohra

The whole thing becomes like

this evil enchantment from a
fairy tale, but youre made to
believe the spell can never be
broken.

JUSTICE HASTENED,
JUSTICE DENIED
A massive mob dragged
an alleged rapist from the
Dimapur jail and beat him
to death in March 2015

Jess C Scott, Hearts Blood

YNCH them. String them

up. Tie them to a post and
larrup the life out of
them. Parade them naked
and beat them with sticks
and pelt them with stones. Instant justice, like
instant coffee, is now the new muscle flex of
power, exercised through the filters of politicians, sarpanches, religious zealots, corrupt
police, self-styled keepers of the conscience
and the mob (any of us) wishing to cleanse
itself on the chosen sacrifice. All very pagan
really but very much 21st century in India,
where tacit approval for the shredding of a
life in retribution of a transgression, real,
imagined and often conveniently concocted,
is given by the state, by the keepers of the law
and by the breathless excitement and righteousness of the man on the street.
How can you fault him? He is only protecting that street, his mohallah, his village,
his town, his caste, his creed, his honor, the
general well-being. All these options and
more are tied precariously together by the
rusted guilt of neglect over centuries for

allowing the virus of social misconduct and

imbalance to enter the national bloodstream.
The modern spiral was aptly reflected a
couple of weeks ago in the killing of a school
director in Patna after the bodies of two students were found in a canal near the school.
The frenzied mob found a suitable target, did
an on-the-spot trial by jury and marched
forth to do gory battle.
That the director may have had nothing to
do with it nor was he given an opportunity to
defend himself did not enter the equation.
The rage was justice served hot and meted
out by a bunch of indolent teenagers (as opposed to the parents of the students), enjoying
the thrill of the killing spree. Better than
lolling against a lamp post at the local mall.
Such incidents are invariably accompanied
by looting, burning of public property and a
general free for all. What fun.
SPURRED BY PIETY
The beginnings of every such cycle are usually benign and well-meant. We have sieved the
traumas of the past through our mental
piercings and created a new juice for tear

around the top and pour justice. After all,

since piety was our spur, we cannot be challenged for impropriety.
Modern vigilantism, borne out of rape
and assaults on women, has made for a perfect canvas for this new sport. It has become
so easy to justify lashing out as a member of
the mob. There is a mesmerizing sense of
morbidity, safety in numbers, a slim chance
of being held accountable and fame on the
screen at the end of it.
The argument is easy to sell. Its not as if
anyone is helping us. The police are inept.
The politicians venal and corrupt. The judiciary creaking under the weight of its backlog.
The system entirely against us. Our daughters are in jeopardy, the demon is at the gate,
we have to get this show on the road.

The eye-for-an-eye
justice is the
precursor to an
open house. But
when the police
rape, when the
protectors of
societies become
the invaders, can
we preach to the
mob?

HURTLE FOR TRPs

That television has propelled the nation to do
the dirty and win itself those dirt-encrusted
15 minutes of fame, made legendary by Andy
Warhol is a given. Careless, totally without
scruples or any sense of responsibility and
ready to put the gory on a pedestal in the

Anthony Lawrence

42

July 31, 2015

INDIA LEGAL July 31, 2015

43

SPOTLIGHT/ Mob Violence

quickly swallowed by the hubris that gratuitous violence spawns. The victim deserved
it, didnt he?
Righting the wrongs of history had to be
done by crashing the applecart on its other
side. There was also something deliciously
evil about satisfying a long-frozen primeval
urge for fame through shock. So, what started off as the projection of a man protecting
his castle and his family turned into a national pastime. All we needed was a candidate for
the purification and we could atone through
this surrogate. If he died he asked for it.

MAJORITY
MENTALITY
(Above) Nigerian
nationals come
under attack at a
Metro station in
Delhi in 2014;
(right) a protest
against the spate
of attacks on
people from
north-eastern
states residing
in Delhi

hurtle for TRPs, TV channels have sought the

worst of every tribe to speak for the rest. It
now does this pulpit-pounding incessantly,
the modern drumbeat of a war that is just
starting. Some years ago, bestselling author
Arthur Hailey wrote a book on the creation of
news by media so that scoops could be headlined and thereby, boost circulations. Making
the news to break was molded into a corporate blueprint. Have no doubt. India has
entered that realm. The spin on these horrific
assaults is insidious.
It is also so gratifying. We can kill with
impunity, feel good about it and having destroyed a life, make the world a better place.
Victor victorius.
Sherlock Holmes in Arthur Conan Doyles The Adventure of Charles Augustus
Milverton, says: The message was always
subliminal. We had to save ourselves. The
pagan in us salivated. Any tendril of guilt was

44

July 31, 2015

BAYING FOR BLOOD

In an inflamed atmosphere, anyone can be
pointed at and if you shout there he goes,
thats him loud enough, the mob will bay for
his blood.
Whether he committed the foul deed is
now a technicality. It does not really count.
Even the media doesnt care to confirm the
facts. The body count is more important.
Finding the corpse innocent would wreck the
story. And for those who do not see it as it is,
we have only just begun....
Woody Guthrie in the Vigilante Man
asks:
Well, what is a vigilante man?
Tell me, what is a vigilante man?
Has he got a gun and a club in his hand?
Is that a vigilante man?
Look through the list of atrocities in the
recent past and see the common link. Normal people doing a normal days work so
severely licensed by social media that they go
for the kill. You can almost visualize their
blood-drenched jaws drooling crimson with
misplaced pride. They do not even realize
how ghoulish they have become. The internet
spreads the message instantly and news and
rumor are now dispensed, with scalding
immediacy and with equal import.
As the rape syndrome lost its novelty,
the mob per se having tasted blood, now
needed fresh kills. Strangers became a good
choice. If you do not look like me, do not eat
my food, speak in another tongue, you were
the enemy. Deep-rooted prejudices tore
through the fragile encasings of our minds.
State-sponsored chauvinism, so happily
espoused on multiple microphones by public

figures, leapt of the stage and curdled over

the past 30 years into hatred for the outsiders. Them and us gradually coalesced into
a confrontation and is today central to collective violence. The series of assaults on those
from north-eastern states and African students without a just cause, bear out the growing popularity of getting rid of the pests
who are touted as the cause of our problems.
The frozen images are haunting. An
African student cowering in a corner. A
young man from Nagaland torn apart because he had the wrong shape of eyes and a
funny hairstyle. A boy tied to a pole and beaten to pulp. But they dont haunt. They just
breed more of the same.
CIVILIAN AVATAR
Psychologically, vigilantism is becoming an
acceptable option in its civilian avatar
because it is actually a government exercise
that has been practiced on the slippery slope
of expediency for decades. Plastic encounters
with dacoits in the Chambal Valley, fulfilling
quotas for arrests, bringing down smugglers,
drug traffickers and breaking contraband
and counterfeit money runners have been the
norm for years, blurring the line between fact
and fiction. On the other side of the coin, this
sort of tyranny was exercised by panchayats
grandstanding as custodians of morality.
Parading shamed women naked, exiling
young lovers from different castes, ordering
pain and punishment have all been part of
our rural ethic and no one has ever questioned its ugliness.
On the third prong of this unholy trinity
(besides sarpanches and the police) were the
pantheon of earth-bound gurus who preached and practiced their forms of violence
upon their disciples, increasing their assaults
exponentially. Vigilantism to eliminate nonbelievers and those who would cry foul was
tacitly encouraged as the inner sanctums fortunes grew. Even the armed forces, faced by
guerrilla goons, have had to cleanse the areas
of suspects with less than due process.
Tolerance for such terrorism against the
individual has stayed high because it is fortified by fear of the unknown. We are taught
that the stranger in our midst is a threat.
That he will take away our jobs, steal our

The here-and-now justice

Instances of flawed notions of right and wrong, with horrifying results
July 5, 2015
A woman in J&K was stripped and
abused by five men in full view of a
deadwitted public. One of the five
was an army soldier. The police
came late and so far has not much
to say.
January 27, 2015
A 62-year-old NRI misbehaved with a
Jharkhand passenger on-board a
Mumbai-Bhubaneswar Indigo flight.
She went for him, taped him saying
sorry. The video went viral. The NRI
said it was a mistake. Was she
right in sending out the video after
complaining to the police?
December 2, 2014
A man was thrashed by the public in
JP Nagar in Bengaluru. It was
alleged that he was teasing women.
Onlookers went berserk. Earlier, in
June 2014, two men in their midtwenties were roughed up, dragged
and paraded naked by a mob after
locals suspected they were thieves.
September 28, 2014
Three men of African origin were
brutally attacked by a mob at Rajiv
Chowk Metro Station in Delhi. They
were accused of teasing women.

Outraged, the public went at them

with belts, shoes, rods and glass.
Did their black identity make them
easy targets?
January 29, 2014
Nido Tania, 20,
from Arunachal
Pradesh was
murdered in Lajpat
Nagar, Delhi, triggering widespread
protests. Shopowners did not like his hairdo. Nido
responded by breaking a glass door
at the sweet shop. Four persons
beat him on his head and face with a
blunt object, killing him.
January 18, 2014
Somnath Bharti, then law minister of
Delhi, conducted a vigilante-style
raid on African women in a south
Delhi locality, saying they were running a drug and prostitution racket
and demanded their arrest. It is
alleged that an
African woman
was even
forced to give
a urine sample
in public for a
drug test.

children, harm our women, destroy our way

of life. We believe it because it is so potent in
its capacity to dismiss charges against us for
acts of omission and commission.
Daniel Nina, in the African Security
Review, said: My first contention is that fear
of vigilantes gives the government an incentive to enforce law. A government needs
to quell vigilantism because it is a threat to
its monopoly on force, which is the basis of
its power.
GULABI GANG
Even when a campaign has merit, it tends to
spawn bastards. Indias Gulabi Gang made
global headlines and its founder, Sampat Pal,
found herself lionized. Her army of
INDIA LEGAL July 31, 2015

45

SPOTLIGHT/ Mob Violence

Now, let the thought flow once again.

What about the young man from Manipur
who was beaten into an inch of his life in hitech Bengaluru for not being able to speak
Kannada? In the absence of an anti-racism
legislation in India, he was unable to establish in the eyes of the law that the attack was
racially motivated.
The same punishment as the rapist.

PINK PRIDE
Gulabi Gang
leader Sampat
Pal leading her
group during a
protest against
atrocities on
women

Modern
vigilantism, borne
out of rape and
assaults on
women, has
become so easy
to justify. There is
a mesmerizing
sense of morbidity,
safety in numbers
and a slim chance
of being held
accountable.

46

July 31, 2015

20,000 women were fighting the good fight,

resisting abusive husbands, taking to task
crooked cops and demanding rape investigations. But gradually, others found in this
exercise the kernel of blackmail. Women
could now get even for past victimizations.
Men were on the run and in the cross-hairs of
anyone who wished to accuse them of anything so far as it was shrill enough.
And while the element of gamesmanship
was increasing, it was also, paradoxically, giving the grotesque members of society an
excuse to continue their rampage.
Take the case of Santhosh Kumar, a 40year-old vendor who was caught raping a
teenager. The crowd went for him and this
was the report: After dragging Kumar off the
girl, the group stripped him, hacked off his
genitals with a meat cleaver and threw them
in the streetwhile filming it on their smart
phones, of course. Its a shocking, if increasingly familiar, story here in India, where
communities are turning to brutal vigilantism after rapes, instead of pursuing justice
through the law.
Now hold that thought for a moment. Did
he deserve to be punished severely? Of course, he did. But the eye-for-an-eye justice is
the precursor to an open house. So herein lies
the rub. When the police rape, when politicians and bureaucrats pay lip service, when
the protectors of societies become the invaders, then, can we preach to the mob?

THIRSTY MOBS
Move on. A wild-eyed mob of 2,000 in
Andhra slaughtered 10 men suspected of
theft. Just theft. What fun, pass the snacks,
we got them, thirsty work, anyone has a
Cola? Every such incident is glossed over by
post-murder interviews, eyewitness accounts
and the sour spotlight of the TV camera.
In Nagaland, a suspected rapist was
pulled out of jail by several thousand people
and beaten to death, after which they all
went home for dinner. He was just a suspect
under lock and key. Must have been a slow
news day.
It is a helpless situation. There are just too
many forces at play. And more innocent people will be robbed of justice, others railroaded and because whatever the provocation,
the guilty will not get the harbor of the law.
Until the nation understands its fundamental duties, along with its fundamental
rights, and the law is changed to make violence in public places a cognizable offence,
nothing can change.
Till then, the rapist and the thief, the
courageous woman who takes on the panchayat and offends it, the suspect and the
man who takes his evening walk and finds
himself in the wrong place at the wrong time,
will be treated equally.
Sometimes, one feels the rope is slipping
away. Where do you start correcting things in
a nation that wont pass an anti-racism law,
where a sarpanch can order a rape as punishment for adultery, where reporting a crime is
seen as the same as committing the crime.
There are no answers. No neat little compartments into which we can shove our theories and hope they fit into the slots. We have
tasted blood and the feeding frenzy is on.
Martin Luther King Jr said: Injustice anywhere is a threat to justice everywhere. IL

NO
HOLDS
BARRED

NBAUG:
ARUNA SHAaile
d 40
Justice der

WHO ISLKAFRAID
OF THE EMERGENCY?
Advanis fears spark off a national debate

DILIP BOBB profil

intrepid reporter es the
who
exposed FIFA scam

28

JAYALALITHAA:
Surprising legal
challenge
28

IDaNnDIAL EGAL
E
L EGAL
INDIA LEGAL ITHENNDIA
gero
NAME
MEALS us
BOMBER
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Former law minister HR Bhardwaj, Seshadri Chari, Justice Mukul Mudgal, Rajeev Dhawan speak out

76

www.indialegalonline.com

June 15, 2015

`100

July 15, 2015

June 30, 2015

ORDINANCE
why was SC/SRAJ: But
allowed to lapseT
? 66

www.indialega

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forcing everyone to duck for cover 22

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NJAC:
Festering
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10

ONE RANK
ONE
PENSION:
Soldier
writes to the
chief justice
of India 48

INDIRA JAISING
unplugged: 40

BANK
LIQUIDITY:
Wheres
the money
honey?
44

NEW TARGETS:
Successful Dalits
57

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DHINGRA
:
Man
behind
Vadra land
probe
46

VYAPAM
HORROR
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32 dead
and still
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50

SPECIAL:
Kashmirs
teleterroris
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44

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EDUCATION/ IIM Bill

Degrees of
Discontent

The HRD ministrys attempt to wrest control of the IIMs comes in for much
criticism. Will the government relent or go ahead with its takeover plan?
By Ajith Pillai

O Bible on management would recommend that an institution or business give

up its independent
decision-making process and allow itself to
be micromanaged by the government. The
controversial Draft Indian Institutes of
Management (IIM) Bill, 2015, to be put up
for parliaments approval later this month,
threatens to do just thatwrest autonomy
from 13 premier management institutions
across the country and bring them under the
governments oversight.
While recent press reports seem to suggest that the Union HRD Ministry piloting
the legislation may suitably tweak it to
accommodate the concerns of the various
IIMs, officials of the ministry have indicated
to India Legal that no major changes are
expected. So, unless there is intervention
from the very top (read the prime minister)
or if the cabinet does not give its approval,

MILES COVERED IN EXCELLENCE

Students of IIM-Bangalore, among
the top-rated management
institutes of the country

48

July 31, 2015

the legislation in its current form could well

come up before parliament for approval during the monsoon session which begins
on July 21.
Many in the top echelons of the IIMs see
red at the prospect of the Bill getting the
Parliamentary nod. In that event, they fear
that the very character of the management
institutes will be drastically altered and
brand IIMs credibility, built over the years,
will slowly but surely take a hit. In fact, such
is the concern that several objections have
been raised against the proposed legislation
in the last few weeks. According to former
and serving faculty members, the government securing complete control over the
IIMs would directly impact the independent
functioning of the institutes.

rofessor Pankaj Chandra, former

director, IIM-Bangalore, who had
advised the UPA government during
the first draft of the Bill, told India Legal:
The Bill is not what was agreed upon when
we submitted our suggestions in 2013 after
much deliberation. This is a revised version
which incorporates all that we had objected
to. In its current form it will bring in several
levels of government interference in the
functioning of the IIMs. In fact, under certain provisions of the proposed Bill, virtually
every decision will require government
approval. That is not how centres of excellence are run anywhere in the world.

As per the new draft, all decisions relating to

admissions, courses run, fee structure, new
buildings, fellowships and scholarships at IIMs
will have to be cleared by the HRD ministry.
This is as much the gist of what AM Naik,
chairman of IIM-Ahmedabad Board of
Governors, told reporters last month. He had
pointed out that the independent functioning of the IIMs would be severely circumscribed if the Bill is implemented. Our
prime minister wishes to create world-class
academic institutions, but this kind of regulation only pushes us in the opposite direction, he had said. Naik also wrote to Union
HRD Minister Smriti Irani on June 24,
expressing the concerns of IIMs.
To quote from his note to the minister:
On behalf of the Indian Institute of
Management Ahmedabad (IIM-A), I would
like to convey our deep reservations on the
proposed IIM Bill that has been put up for
public comments. On a preliminary review
of the Draft IIM Bill 2015, we are deeply
concerned that some of the provisions of the
Bill would seriously compromise the autonomy of the institute. We believe that developing a Bill that helps us achieve its vision
requires a thorough and collaborative review
process which needs adequate time and
deliberation.
Similar objections have been commu-

GLOBAL ASPIRATIONS
British Prime Minister
David Cameron
interacting with
IIM-Calcutta students
during his India visit in
November 2013

INDIA LEGAL July 31, 2015

49

EDUCATION/ IIM Bill

media: After nine months of

silence, the government suddenly
floated this new draft, which we
saw just a few weeks back. It really
caught us by surprise. The original
Bill, which was approved by the
IIMs and Ministry of HRD, has
been completely changed, and
rather made even worse than the
original draft.

IS IT GOVTS BUSINESS?
A letter from AM Naik,
Chairman, IIM-Ahmedabad
Board of Governors, to HRD
Minister Smriti Irani,
expressing his displeasure
with the Draft Bill

50

July 31, 2015

nicated to the ministry by some other IIMs,

including Bangalore, Calcutta and Lucknow.
According to IIM insiders, the new Bill,
circulated two months ago by the HRD ministry took everyone by surprise. It was a clear
departure from the Draft Bill discussed and
agreed upon by the IIMs two years ago. In its
new avatar the Draft Bill had all the sticking
points that the institutes had earlier objected
to. Naik articulated his frustration to the

hose who have objected to

the Bill have taken particular umbrage over three sections of the new Bill which render
the board of governors of the IIMs
virtually powerless and toothless.
Should the new legislation be
passed, all its decisions relating to
admissions, courses run, fee structure, establishment of new buildings, fellowships and scholarships
will have to be cleared by the HRD
Ministry. The appointment of
chairpersons and directors of the
IIM boards will also be finalized
by the government.
Not just that, each IIM director
must give their assessment on the
performance and contribution of
the five highest paid employees in
the institute to the HRD Ministry.
A senior faculty member of the
IIM Lucknow says: Every aspect
of functioning has been covered by
the Bill. It wrests total control with
the government, reducing the
IIMs to mere operating centres
which will have to obey the diktats
of the HRD Ministry in Delhi.
Those who support the Bill
point out that IIMs, though registered under
the Indian Societies Registration Act, were
created by the government in 1961 and are
also funded by it. The institutes enjoyed dayto-day autonomy in their functioning till now
although under the watch of the government
which has been formulating broad policies
for each of the IIMs. But this approach had
to change with the number of institutes
increasing from 3 to 13 and with 6 more on

WILL IT MANAGE THIS CRISIS?

IIM-Ahmedabad, often ranked at the
top in B-school listings

the anvil. The autonomy had to be codified by

law and the role of the government defined.
Also, since government funding is involved,
accountability had to be formalised and a
uniform system had to be put in place to
cover areas like appointments.
According to the government, the big
takeaway for the IIMs as well as its students
is that once the Bill becomes operational it
will pave the way for these institutes to
confer degrees instead of post-graduate
diplomas that they currently award. This will
not only attract foreign students to these Bschools but will help the institutes to set up
campuses abroad for which a degree programme is essential. In short, the argument
is that the Bill will only strengthen and help
the IIMs grow.
But those opposed to the proposed legislation say that the degree is just a carrot
offered by the government. According to Prof
Chandra, if the Bill was all about giving IIMs
the authority to grant degrees, why not focus
on that and not on wresting control over the
institutes.
He says: If it was all about a degree then
why not have a Bill that just says that and
nothing else. In any case, even without a
degree the IIM is accepted across the world
for its excellence. The real intent of the Bill is

to facilitate the government takeover of the

IIMs. If that happens then I fear that the
IIMs will get bogged down by political and
bureaucratic interference.

eanwhile, over 400 private BSchools which offer post-graduate

diploma courses in business management have also expressed their apprehensions over the proposed Bill. They fear that
the courses they run will lose their grading if
the IIMs begin to confer degrees.
Demanding a level-playing field, their
plea is that a competent national body be
constituted which will recognise private
institutes and give them the authority to confer post-graduate management degrees like
the IIMs.
Its been 10 years since the idea of a Bill to
cover IIMs first started doing the rounds. It
has courted controversy even since. As the
Draft Bill awaits Cabinet approval, the HRD
ministry still has time to make the proposed
legislation a palatable one for all stakeholders. Otherwise, as JJ Irani, Chairman of the
IIM-Lucknow Board, told the media: There
will be a revolt in the IIM system.
Such seething discontent is the last thing
one would want in the faculty of one of
Indias premier management institutes. IL

The Bill is not

what was
agreed upon
when we
submitted our
suggestions in
2013 after
much
deliberation.
This is a
revised version
which
incorporates
all that we had
objected to.
Prof Pankaj
Chandra, former
director, IIM-B

INDIA LEGAL July 31, 2015

51

EDUCATION/ FTII

YUDHISHTHIRS STUBBORNNESS

Gajendra Chauhans
controversial appointment
as FTII chairman has
been roundly criticized
by reputed film
personalities. Did he get
the job because of his
RSS-BJP links?
Prachi Bari in Pune

HAT began as a silent

protest from the students
of the Film and Television
Institute of India (FTII)
against the appointment
of television actor Gajendra Chauhan for the
post of the Chairman of FTII has now
become a question of whether Pune will end
up losing the institute forever or whether it
will be handed over to Bollywood to run.
That would be most unfortunate since the
institution, revered by those in cinema and
intellectuals of all hues, has come to symbolize a facet of modern Indian culture that has
resisted commercialization and found its
place in world cinema. It is also the pride
of Pune.
The I&B ministrys response to the student protests has been to hold out a threat. It
has suggested that the government is looking
at shifting the ownership of the institute to
Bollywood or a shutdown. The ministry is
reportedly relying on the report of the
Expenditure Reforms Commission, appointed in 2000 and headed by former finance

52

July 31, 2015

secretary KP Geetha Krishnan. It had suggested handing over the institute to the film
industry. The report also pointed out that the
average cost of education for an FTII student
funded by the state is in excess of `10 lakh
per year and is a huge financial burden.
Reacting to reports, the students say that
the I&B ministry was trying to deflect attention from the original issue of the arbitrary

appointment of Chauhan through selective

statements. During our meeting, neither the
minister nor the secretary addressed the
appointments issue even once. They simply
reiterated the earlier promises of making the
institute into one of national excellence but
with no timeline. Now, they are quoting the
apparent investment made on each student
in terms of infrastructure and technology

which simply is like putting a price on culture

and art, says a student.
The appointment of Chauhan as FTII
chairman has upset the students as well as
many in the film industry. The serene FTII
campus is boiling with rage and as the strike
crosses a month, leading lights of the film
industryJahnu Barua, Pallavi Joshi and
Santosh Sivanhave resigned from their

FIGHTING FOR RIGHTS

(L-R) FTII students protesting in
Delhi against the appointment of
Gajendra Chauhan

INDIA LEGAL July 31, 2015

53

EDUCATION/ FTII

think what the students are asking for is

illogical; they are not asking for the moon.
They are just asking for a fair chance, a fair
opportunity, a good faculty, and a good syllabus. People look at the FTII graduates with
so much respect.

LACK OF FAITH
(Above and right) The
students have questioned
Chauhans creative
credentials and vision to
guide FTII

Gajendra Chauhan was picked ahead of lyricist

Gulzar and filmmakers Shyam Benegal and
Adoor Gopalakrishnan, who were shortlisted by
the I&B ministry for the chairmans post.
post as members of the FTII society. Even
mainstream Bollywood stars are waking up
to support the students.
Actor Ranbir Kapoor had this to say:
The appointment of the new FTII chairman
has gone against the students wishes. I dont

54

July 31, 2015

eanwhile, student representatives

have also met officials of the I&B
ministry in Delhi. But they came
back dejected describing the talks as inconclusive and unsatisfactory. In fact, the FTIIs
Students Association (FSA) said that the agitation that started on June 12 will continue.
For us, this institution is what we believe in.
As artists, as creators of art, this institution
has to retain its essence, which produced
Oscar and national award winners like Resul
Pookutty and Santosh Sivan. Thrusting a
person (like Chauhan)
whose only claim to fame
is acting in a mythological
series
almost
amounts to condemning
this institution to death,
says Ajayan Adat, a
sound engineering student at the FTII.
With the protest
gathering steam, film
personalities like Kiran
Rao, Saeed Mirza and
Kundan Shah have come
out to back the protesting students. Even
Anupam Kher, a known
BJP supporter, has candidly admitted on TV
that Chauhan was a bad
choice for the top job in FTII.
The FSA maintains that it will continue
its protest till Chauhan is replaced by a more
suitable candidate. Chauhan was picked
ahead of lyricist Gulzar and filmmakers
Shyam Benegal and Adoor Gopalakrishnan,
who were shortlisted by the ministry for the
chairmans post. Ever since his name was
announced, FTII students have boycotted
theory classes, practicals and diploma film
work. They have expressed their disapproval
through graffiti on the walls, which read:
Gajendra resign and leave, Dharmaraj

Yudhishthir? No Way!, Politics or FTII,

both cant go together. As the protest escalated, a group of 70-80 students went from
office to office forcing officials to stop work.
Harikrishnan Nachimuthu, who heads the
students union, said they will intensify the
protests if the appointment is not revoked.
The students have questioned Chauhans
creative credentials and whether he has the
vision to guide the institute, earlier helmed
by internationally renowned luminaries like
Girish Karnad, UR Ananthamurthy and
Shyam Benegal. Many view the appointment
as an attempt by the Narendra Modi-led BJP
government to foist its right-wing agenda
upon the institute.

What is the FTII Society?

The FTII functions as an autonomous
body under the Ministry of
Information and Broadcasting,
Government of India, and is registered under the Societies
Registration Act of 1860. The FTII
Society is headed by a president
who is a well-known personality from
film and television, arts or academics. The Governing Council (GC) is
constituted by election from among
the members of the Society. The GC,

as the apex body of the FTII, is

responsible for making all major policy decisions of the Institute in consonance with its aims and objectives.
The president of the society also
functions as the chairman of each of
the bodies, GC, the AC and the SFC.
Shyam Benegal, Mrinal Sen, Adoor
Gopalakrishnan, Mahesh Bhatt,
Girish Karnad, Vinod Khanna and
Prof U R Ananthamurthy have served
as the chairman of the GC.

part from Chauhans appointment,

students and progressive filmmakers
are upset with the choice of the
reconstituted FTII panel, where four of the
eight are RSS propagandists.
These include Anagha Ghaisas, who has
made documentary films on PM Narendra
Modi; Narendra Pathak, a former president
of the Maharashtra ABVP; Pranjlal Saikia,
an office bearer of an RSS-linked organisation; and Rahul Solapurkar, closely associated with the BJP.
The center, as of now, wants to brazen it
out. The thinking is that it would be a loss of
face if Chauhan is replaced. The controversy
has already gathered momentum with top
stars and filmmakers coming out in support
of the students.
Those defending Chauhan have very little
to say in his defence other than point out that
he has acted in several films and TV serials.
Their other plea is that he should be given a
chance since the FTII chairmans job is purely administrative.
This is an argument few will buy since the
person who heads the FTII will have to deal
with international film-makers and actors.
Chauhan has not helped his case by declaring
that anything which sells is good cinema.
He has also admitted that he has never
attended an international film festival and is
not well versed with world cinema.
Does that qualify him to head the FTII?
The consensus is that he does not. But will
the government hear the voice of reason? IL

LENDING HIS
WEIGHT
(left) Actor
Anupam Kher has
admitted on TV
that Chauhan
was a bad choice

INDIA LEGAL July 31, 2015

55

LEGAL EYE/ Governors Power

WHAT IS
GOVERNORS
DISCRETION?

HE governor of a state has

certain powers in his discretion, as opposed to
functions which he can
perform only on the aid
and advice of the council of
ministers.As the Constitution does not give any exhaustive list of
such functions, the matter is generally left to
convention and practice.
Thus, sending a report to the president
under Article 356 of the constitution, and
reserving bills for his consideration under
Article 200 have been held to be some of the
functions which the governor can exercise in
his discretion.
In this context, the observations of a
Lucknow Bench of the Allahabad High Court
need to be noted. On June 22, while disposing a PIL (Ranjana Agnihotri vs State of
Uttar Pradesh) seeking issue of mandamus to
the governor to use his discretion while nominating members to the states legislative
council, the Bench observed that he is not
bound by the aid and advice of the council of
ministers while nominating members. This
observation could only be considered an
obiter (made or said in passing) without any
legal effect.

POWERS LAID DOWN

The Sarkaria Commission, in its report to the
central government in 1988, set out the matters where the governor has to act in his dis-

56

July 31, 2015

NOMINATION
TUSSLE
UP Governor
Ram Naik

The scope and ambit of

the power of a governor
has often been open to
debate. A recent high
court obiter has
created a flutter as to
the extent of his
discretionary powers
By Vinay Rai

cretion. They are:

 In choosing the chief minister
 In testing the majority of the government
in office
 In the dismissal of a chief minister
 In dissolving the legislative assembly
 In recommending presidents rule
 In reserving bills for the consideration of
the president
The commission clearly concluded that
the governor has no discretionary power in
the matter of nominations to the legislative
council or the legislative assembly. If at the
time of making a nomination, a ministry has
either not been formed or has resigned or lost
majority in the assembly, the governor should await the formation of a new ministry,
the commission had recommended. (Paragraph 4.16.18).
Article 163 (2) leaves the scope of a governors discretion unlimited, as it lays down
that if at any time any doubt arises whether
he is required to act in his discretion, his
decision shall be final. Further, the validity of
anything done by him shall not be called in
question on the ground that he ought or
ought not to have acted in his discretion.
Strangely, the brief order of the Lucknow
Bench is silent on Article 163(2). The first
case of exercise of discretion in regard to
such nomination arose as early as in 1952, in
Madras, when C Rajagopalachari was nominated to the legislative council and was then
appointed chief minister. The issue later
cropped up in Maharashtra.

The Sarkaria Commission in its 1988 report to

the center clearly said that the governor has no
discretionary power in nominations to the
legislative council or the legislative assembly.
state government told the Commission that
the discretionary power needs to be curtailed, as the interpretation of the scope of
this power is a potential threat to the autonomy of states and the right of the people to
be governed by a responsible government.
The Sarkaria Commission, however, was
of the view that the discretionary power of
the governor as provided in Article 163
should be left untouched. When a governor
finds that it will be constitutionally improper
for him to accept the advice of his
council of ministers, he should
make every effort to persuade
his ministers to adopt the
correct course. He should
exercise his discretionary
power only as a last
resort, the commission
had recommended.
In Ranjana Agnihotri
vs State of Uttar Pradesh,
heard by Justices Arun
Tandon and Anil Kumar, the
petitioners sought a writ of
mandamus directing the governor of the state not to act

CLARIFYING
MATTERS
Justice Rajinder
Singh Sarkaria,
head of the
Sarkaria
Commission

NO PROVISIONS
The Sarkaria Commission was clear that
Article 171 of the constitution does not provide for the exercise of discretion by the governor. Similarly, it said, no discretion is available to him to make a nomination to the legislative assembly under Article 333, which
deals with representation of the AngloIndian community in the legislative assemblies of the states.
The Sarkaria Commission report mentions that state governments told the commission that the governor should exercise his
discretion, in public interest, not arbitrarily,
so as to subserve the purpose for which discretionary power has been conferred. One
INDIA LEGAL July 31, 2015

57

LEGAL EYE/ Governors Power

ing the elections for the legislature under the

RP Act, 1951. While this issue may require
the governor to use his discretion, the Bench
asked the petitioners to approach the right
forum to seek remedy, as the high court lacks
jurisdiction to intervene in the matter.
The court noted that the practice of nomination by the governor on the aid and advice
of the cabinet has continued only because a
petition filed earlier, and raising a similar
grievance, is still pending before the court.
(Writ Petition No.5722 (MB-PIL) of 2009).
The Bench asked the petitioners in the pending case to request the chief justice of the
high court to constitute a special Bench to
hear the matter expeditiously.

EARLY BIRD
The governors
discretion to
nominate
members for the
legislative council
was first used in
1952 to nominate
C Rajagopalachari,
in Madras

on the recommendations of the cabinet in

the nomination of members to the legislative
council of the state in exercise of powers conferred under Article 171 (3)(e) of the constitution.
NO INFLUENCE
The petitioners contended that the governor,
under this Article, makes nominations at his
own discretion, and such discretion cannot
be influenced by the cabinet, in any manner.
This is because the petitioners claimed that
the latter part of Article 163(1) clarifies that
in matters where the power is to be exercised
by the governor on his own discretion, the
advice of the council of ministers is neither
required nor is it binding on him.
The petitioners contended that under
Article 171(5), the governor of the state must
examine as to whether the nominated member stands disqualified under provisions of
the RP Act, 1951, or not. This is because it is
settled law that what cannot be achieved
directly cannot be achieved indirectly by getting nominated to the legislative council, by a
person who stands disqualified from contest-

The court asked the petitioners to come back to

it for seeking remedy as and when the governor
makes nominations, and if they find there is
infringement of constitutional provisions.
58

July 31, 2015

PREMATURE PETITION
The court, however, found the petition premature. As the court put it, the nomination
of 1/3 members of the legislative council is
made by the governor in his discretion of persons having special knowledge or practical
experience in the fields prescribed. This discretion has to be exercised within the parameter of the constitution and not beyond it, the
court held.
It also held that in the matter of nomination under Article 171(2)(e), the advice of the
council of ministers is not binding upon the
governor. He is to act on his own discretion,
it said.
However, as the governor is still to nominate the members, the court could not prejudge his action, it suggested by implication.
The court asked the petitioners to come
back to it for seeking remedy as and when the
governor makes nominations, and if they
find there is infringement of constitutional
provisions. On the non-retirement of at least
1/3 members of the legislative council every
two years as per Article 172 (2), the Lucknow
bench expressed its inability to adjudicate
the matter in the absence of relevant facts in
the pleadings.
As the Bench has not given any immediate relief to the petitioners in this case, its
observation regarding the use of discretion
by the governor in the nominations to the
legislative council can only be considered as
obiter dicta. Shorn of any legal reasoning, it
lacks even persuasive value. IL

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16

LEGAL EYE Rape/Controversial Judgment

In every judgment, the court must invoke

constitutional principles. Something as
blatantly unlawful as mediation in a rape
case cannot be recommended. The core
principle of equality, freedom to make
decisions over ones own body and mind
must be invoked and protected.

No room for Compromise

A Madras High Court order
directing mediation between a
rape victim and the accused
has been overturned by the
Supreme Court, which criticized
it for its insensitivity
By Ramesh Menon

HREE weeks after directing a rape victim to mediate with her rapist, V
Mohan, who was given
interim bail on June 18, the
Madras High Court recalled its order. This reversal
came after the Supreme Court (SC) castigated another high court order, saying that any
mediation in a rape case was illegal and
against the dignity of women.
It is a spectacular error on the part of the
court to promote any such mediation, the SC
said. A bench, headed by Justice Dipak
Misra, observed: When a human frame is
defiled, the purest treasure is lost. Dignity of
a woman is a part of her non-perishable and
immortal self and no one should ever think of
painting it in clay. There cannot be a compromise or settlement as it would be against her
honor which matters the most.
The remark by Justice Misra was made in
reference to another rape case, where he criticized a Madhya Pradesh High Court judge
who had allowed Madan Lal, a rape accused,
to enter into a compromise with the parents
of a seven-year-old victim and had set aside
the conviction and five-year sentence for
the rape.
The Madras High Court order, passed by
Justice P Devadass, had sparked outrage
among activists and the legal fraternity. They
felt that the rapist had agreed to the mediation, which would discuss marriage with the
victim, as a ruse to escape payment of compensation and the seven-year sentence.
The verdict had led to protests in various
parts of the country. Activists and legal
experts argued that the rape victim, who is
22 years now, and the mother of a daughter
born out of the rape, was not even asked if
she wanted the mediation.
Justice Devadass revoked the order after
the SC said that mediation and compromise

Supreme Court advocate Karuna Nundy

should not be an option in rape cases.

On June 18, Justice Devadass had granted
interim bail to Mohan, who had been sentenced to seven years imprisonment by the
Mahila Court, Cuddalore, Tamil Nadu, for
raping the girl who was 15 in 2008. She gave
birth to her daughter on July 14, 2009.
A DNA test confirmed that the convict
was the father. The accused was asked by the
court to pay a compensation of `2 lakh to the
victim. The accused appealed against the
conviction and the sentence, contending that
the victim was not a minor at the time of the
rape and that it was consensual.

hile hearing the appeal of the

accused, Justice Devadass highlighted the plight of the rape survivors child, saying that she had suffered for
no fault of hers. He said that she was a bigger
victim than the teen mother.
Justice Devadass referred to an earlier
case where he had ordered the accused and
the victim to go for mediation. It had a happy
conclusion as they had agreed to marry,
he said.
In media interviews, the 22-year-old victim had categorically stated that she had
absolutely no intention of mediating with her
rapist or marrying him.
In an interview with The Sunday Express,
she had said: Did the judge ever think how I
suffered all these years? He knew I had a
baby from that rape. And now this single
order of his wants me to go through that suffering again.
The court has cancelled the interim bail
that was granted to the accused in the pres-

ent case and asked him to surrender to the

court. The officer-in-charge of the mediation
centre was ordered by the court to stop the
parties from attending the mediation.
The accused has been asked by Justice
Devadass to surrender before the Mahila
Court in Cuddalore.
If he doesnt, the trial court would issue a
warrant to secure the accused and send him
to the central prison at Cuddalore.
Though the victim had categorically made
her views known about how she was against
any mediation or compromise, the state legal
services authority had sent her a letter to
appear for mediation.
Over 100 lawyers had written to the chief
justice against the order. It is inappropriate
that the judiciary should assume the role of
the quintessential patriarch and condemn
the survivor to the fate of accepting the
rapists hand in marriage as a peace offering.
In allowing this decision, the high court is
effacing the autonomy and agency of a single
woman, her right to a partner of her choice
and to be the authority where her body is
concerned. In allowing this decision, justice
has been bypassed, the petition said.
SC advocate Karuna Nundy told India
Legal that the withdrawal of the judgment
asking for mediation was a welcome course
correction. She said: However, the thing to
remember is that in every judgment, the
court must invoke constitutional principles.
Something as blatantly unlawful as mediation in a rape case cannot be recommended.
The core principle of equality, freedom to
make decisions over ones own body and
mind must be invoked and protected. IL

When a human
frame is defiled,
the 'purest
treasure' is lost.
Dignity of a
woman is a
part of her
non-perishable
and immortal
self and no one
should ever
think of painting
it in clay. There
cannot be a
compromise or
settlement.
Justice Dipak
Misra of the
Supreme Court

Illustration: Anthony Lawrence

60

July 31, 2015

INDIA LEGAL July 31, 2015

61

GLOBAL TRENDS/ Same Sex Marriage

Rainbow
Revolution

The US Supreme Courts

landmark judgment on same
sex marriage has given hope to
many. When will India shed
its anathema towards
homosexuals and other
marginalized groups?
By Roshini Seth

Photos: UNI

BUSTING MYTHS
(Above) Roses laid before
the bust of gay rights
activist Harvey Milk in San
Francisco as a mark
of gratitude following the
landmark judgment

62

July 31, 2015

HE US Supreme Court
(SC) in its landmark ruling
on June 26, 2015, legalized
same sex marriage. The
court ruled 5-4 that the US
constitution
provides
same-sex couples the right
to marry. Earlier, gay and lesbian couples
could marry in 36 states, but with this new
ruling, same sex marriage will be legal in the
remaining 14 states too.
The majority opinion of the nine-judge
Bench held that no union is more profound
than marriage, for it embodies the highest
ideals of love, fidelity, devotion, sacrifice, and
family. They argued that the federal ban violates constitutional protections and discriminates against same-sex couples by preventing
them from fully accessing laws pertaining to
social security, housing, taxes, criminal sanctions, copyright and veterans benefits.
The SC ruling is the culmination of a long
legal fight by gay rights advocates. The right

to marry a person of the same sex in the US

was unthinkable a decade ago, but there have
been steady gains in public approval for it in
recent years. In 2004, Massachusetts became
the first state to legalize gay marriage.
WINDS OF CHANGE
Why has the publics attitude changed so rapidly in the US and the western world? The
declining influence of the Catholic Church
and the emergence of a tolerant attitude
towards homosexuality have been big factors.
In the recent Ireland referendum campaign
on same sex marriage, the Church kept a low
profile in marked contrast to its position on
this issue. Most political parties in Europe
and the US favor marriage equality, which has
also resulted in the acceptance of LGBT communities and their rights.
However, there are a large number of critics too of the SC judgment, who say that the
court has taken an extraordinary step in
deciding not to allow states to decide the issue

for themselves as the constitution does not

define marriage. They hold that even if samesex marriage is a good policy, it should have
come from the elected representative of the
people and not from the courts.
The four dissenting judges each filed a
separate opinion. Chief Justice John Roberts
wrote in his dissent that if you are among
the many Americansof whatever sexual
orientationwho favor expanding same-sex
marriage, by all means celebrate todays decision, but do not celebrate the constitution. It
had nothing to do with it.

OPEN TO CHANGE
(Above and left) The
US verdict has been
hailed by the LGBT
community and is
a harbinger of
inclusiveness

GROUP MARRIAGE
During these proceedings, more complex
issues about human relationships emerged.
One was whether groups of more than two
people would also have a constitutional right
to marry. The liberal movement in the West
is also insisting that consent should be the
measure in sexual and romantic practice. As
long as all parties involved in a marriage
INDIA LEGAL July 31, 2015

63

GLOBAL VIEW/ Same Sex Marriage

INTERNATIONAL BRIEFS

Landmark Moments
2001: Netherlands became the first
country to legalize same-sex marriage
2003: The US SC ruled that it is unconstitutional to criminalize homosexuality
2004: Massachusetts became the first
state in the US to legalize same-sex
marriage
2015: Ireland became the first
country to legalize same-sex marriage by
referendum
20: Countries where same-sex marriage
has been legalized
79: Countries where homosexuality is
illegal
9: Nations where death penalty is
imposed for same-sex intimacy
5: Nations which implement death penalty
(Mauritania, Sudan, Iran, Saudi Arabia,
Yemen)

CLOSED TO
REASON
The Indian apex
court judgment
on gay sex has
disappointed
LGBTs and
activists

The mood
appears to be in
favor of it. But it
can be done
only after
widespread
consultations
and taking all
views into
account.
Union Law Minister
DV Sadananda
Gowda, on abolishing
Section 377

are consenting adults, it should be made

permissible.
Advocates of polygamy have started raising the demand that consent between adults
who knowingly and willfully enter into a
joint marriage contract, should be permitted
to do so, according to the basic principles of
personal liberty.
Although the American SC judgment has
legal sanction only within the US, gay rights
activists are celebrating it across the world.
Developments in the US reflect a fundamental change in public opinion and are bound to
have a ripple effect in other countries too,
especially those having a strong gay movement. There are expectations that even
if same sex marriage is not allowed, open
discrimination against the LGBT community
will definitely end.
INDIAN STORY
In India, the scene is altogether different. In
December 2013, the SC upheld Section 377
of the IPC, which criminalizes homosexuality

64

July 31, 2015

and places the LGBT community out of societal norms. The two-judge Bench held that it
is up to parliament to decide whether to
retain, amend or delete the Section.
After the adoption of the IPC in 1950,
around 30 amendments were made to it, the
most recent being in 2013, which specifically
deals with sexual offenses and to which
Section 377 belongs. The 172nd Law
Commission Report specifically recommended deletion of this Section. The SC in its ruling has also clarified that the legislature is
free to consider the desirability and propriety
of Section 377, but parliament has so far not
acted to delete or dilute Section 377.
Union Law Minister DV Sadananda
Gowda recently said: The mood appears to
be in favor of it. But it can be done only after
widespread consultations and taking all
views into account. Soon after the story
broke, Gowda was going blue in the face saying that he had been misquoted.
Meanwhile, senior BJP leader, Subramanian Swamy issued a statement that his
party position always has been that homosexuality is a genetic disorder. He added that
homosexuals are genetically handicapped.
While sections of Indian society are becoming more inclusive and liberal, homophobia is still deeply entrenched. India still has a
long way to go before LGBTs can be treated
as equals and homosexuality is legalized. IL

Pakistan to discuss Hindu marriage law

EVEN AFTER 67 years, the minority
Hindus in Pakistan are without a
marriage law. But the wait for the
minority
community,
which
accounts for 1.6 percent of the
countrys population, could end
soon. The National Assembly
Standing Committee on Law,
Justice and Human Rights, headed
by Chaudhry Muhammad Bashir
Virk is set to review a private members bill, namely the Hindu

Singapore court releases

teen blogger
A 16-YEAR-OLD video blogger, Amos Yee,
was released by a Singapore court after he
spent a month in remand waiting for the
judgment, according to The Straits Times.
Yee was found guilty on May 12 of making
derogatory remarks against Christians and
Singapores late prime minister, Lee Kuan
Yew, in a video. He had uploaded an
obscene image of Lee and former British
premier Margaret Thatcher. Groups like
The Human Rights Watch criticized Yees
arrest. In a similar incident, the Supreme
Court of Singapore fined blogger Alex Au
in March for comments he had made
about an ongoing challenge to the
countrys anti-homosexuality laws.

Marriage Act 2014, jointly moved

last year by Ramesh Lal of PPP and
Dr Darshan of PML-N, and a similar
government bill that had been
tabled by Law Minister Pervaiz
Rashid in March, this year. The two
bills will establish rules and regulation for the registration of marriage
and divorce for Pakistani Hindus.
Hindus in Pakistan do not even
have a legal document as proof
of marriage.

Chinas new security law

CHINAS TOP legislature on July 8 adopted a sweeping new national security law
touching on everything, from the military
and economy to the environment, religion,
the Internet, food safety and space exploration, saying the country needed to bolster legal measures in the face of evergrowing security challenges, LA Times
reports. Critics fear the broadly worded
law could be used to stifle dissent, reinforce censorship and impose new constraints on tech companies and other
businesses.

24 Islamic State militants

sentenced death.

AN IRAQI court sentenced 24 militants

of the Islamic State (IS) group to death
for killing Iraqi soldiers last year. The
men were convicted for their role in the
June 2014 massacre at Tikrit, in which
1,700 Iraqi soldiers died. However, all
pleaded not guilty, insisting they had
not taken part in the atrocities. They
told the court that their confessions
were coerced under torture by Iraqi
officers. The Iraqi government arrested dozens of people suspected of
involvement in the terrorist attack.

NOW scribe sentenced

FOUR YEARS after a phone-hacking scandal
sank the News of the World, the last of the
tabloid's journalists to face charges has been
sentenced. A judge on July 6 gave ex-features editor, Jules Stenson, a four-month suspended sentence, 200 hours community
service and a $7,800 fine for conspiring to
hack phones, ABC News reports. The 49year-old journalist broke down in tears as the
judge told him he would not be going to
prison. Judge John Saunders said Stenson
was under intense pressure to get scoops
when he turned to phone hacking, which was
widespread at the newspaper. Stenson is the
ninth journalist from NOW to be convicted.

INDIA LEGAL July 31, 2015

65

GLOBAL TRENDS/ Greek Referendum

Greek Vote and the

EU Miscalculation
Where European leaders went wrong in
gauging the popular sentiment of this
debt-ridden country
By George Friedman

n a result that should surprise no

one, the Greeks voted to reject
European demands for additional
austerity measures as the price
for providing funds to allow
Greek banks to operate. There are
three reasons this should have
been no surprise. First, the ruling Coalition
of the Radical Left, or Syriza party, is ruling
because it has an understanding of the Greek
mood. Second, the constant scorn and contempt that the European leadership heaped
on the prime minister and finance minister
convinced the Greeks not only that the scorn
was meant for them as well but also that anyone so despised by the European leadership
wasnt all bad. Finally, and most important,
the European leadership put the Greek voters in a position in which they had nothing to
lose. The Greeks were left to choose between
two forms of devastationone that was
immediate but possible to recover from, and
one that was a longer-term strangulation
with no exit.
MISTAKEN REASONING
As the International Monetary Fund noted
(while maintaining a very hard line on
Greece), the Greeks cannot repay their loans

66

July 31, 2015

or escape from their economic nightmare

without a substantial restructuring of the
Greek debt, including significant debt forgiveness and a willingness to create a multidecade solution. The IMF also made clear
that increased austerity, apart from posing an
impossible burden for the Greeks, will actually retard either a Greek recovery or debt
repayment.
The Greeks knew this as well. What was

obvious is that austerity without radical

restructuring would inevitably lead to
default, if not now, then somewhere not too
far down the line.
Focusing on pensions made the Europeans appear tough but was actually quite
foolish. All of the austerity measures demanded would not have provided nearly enough
money to repay debts without restructuring.
In due course, Greece would default, or the

debt would be restructured.

Since Europes leaders are not stupid, it is
important to understand the game they were
playing. They knew perfectly well the austerity measures were between irrelevant and
damaging to debt repayment. They insisted
on this battle at this time because they
thought they would win it, and it was important for them to get Greece to capitulate for
broader reasons.

THE DAY BELONGED TO

NAYSAYERS
Supporters of No in the Greek
referendum cheer at the
Trafalgar Square in London on
July 4, indicating a growing
support for the anti-austerity
movement

INDIA LEGAL July 31, 2015

67

GLOBAL TRENDS/ Greek Referendum

sing with the Greeks. They created a more

dangerous situation for themselves.

PEOPLES VOICE

Anti-austerity rally
in front of Greek
parliament in
Athens on
July 3

68

July 31, 2015

No other EU country is in a condition as

bad as Greeces. However, a number of EU
countries, particularly in Southern Europe,
carry a debt burden they would like to renegotiate. They are doing better than Greece
this year, but with persistent high unemploymentfor example, 22.5 percent in Spain as
of Maytwo things are not clear: first, what
shape these countries will be in next year or
the year after that, and second, what governments would come into office, and what the
new governments positions would be.
Greece accounts for less than 2 percent of the
European Unions gross domestic product.
Italy and Spain are far more important. The
problem of restructuring debt is, once it is
done for one country, others will want to
restructure as well. The European Union did
not want to set any precedents for future
crises or anti-EU governments.
In Greece, Europes leaders had a crisis
and a hostile government. It was the perfect

place to take a stand, they thought. They

became inflexible on debt restructuring,
demanding prior increased austerity measures in a country where unemployment
exceeded 25 percent and youth unemployment was over 50 percent.
VARYING COMPULSIONS
The EU strategy in the past had been psychological: spreading fear about what default
might mean, spreading fear of the consequences of leaving the eurozone and arguing
that it was the European Union that lacked
the ability to make concessions. Europes
leaders demanded austerity measures but
tied them to postponing repayments. They
expected Greece to continue playing the
game. They did not realize, for some reason,
that Syriza came to power on a pledge to end
the game. They thought that under pressure,
the party would fold.
But Syriza couldnt fold, and not just for

political reasons. If Syriza betrayed its

election pledge, as the European leadership
was sure it would, the party would split and a
new anti-European party would
form in Greece. But on a deeper
level, the Greeks simply could not
give any more. With their economy
in shambles and Europe insisting
that the solution was not stimulus
but austerityan increasingly dubious claimthe Greeks were at the
point where default, and the shortterm wrenching crisis that would
ensue, would be worth the price.
The European leaders miscalculated. They thought Greece could be
more flexible, and they wanted to
demonstrate to any other country or
party that might consider a similar
maneuver in the future just what
the cost would be. The Europeans
feared the moral risk of compromi-

NEW THREATS
First, in its treatment of Greece, the European Union has driven homeparticularly to
rising Euroskeptic partiesthat it is merely a
treaty organization and in no way a confederation, let alone a federation. Europe was a
union so long as a member didnt get into
trouble. As I have said, the Greeks were irresponsible borrowing money. But the rest of
Europe was irresponsible in lending it.
Indeed, the banks that lent the money knew
perfectly well the condition Greece was in.
The idea that the Greeks pulled the wool
over the bankers eyes is nonsense. The
bankers wanted to make the loans because
they made money off transactions. Plus,
European institutions that bought the loans
from them bailed out those that made the
loans. The people who made the loans sold
them to third parties, and the third parties
sold them to EU institutions.
As for the Greeks, it was not the current
government or the public that borrowed the
money. And so the tale will help parties like
Podemos in Spain and UKIP in the United
Kingdom make the case against the European Union. The European Union appears
both protective of banks and predatory to
those who didnt actually borrow.
Second, having played hardball, the

The IMF had

made clear that
increased
austerity, apart
from posing an
impossible burden
for the Greeks, will
actually retard
either a Greek
recovery or debt
repayment.

TOUGH CHOICES
Pensioners queue up
outside a branch of
Alpha Bank in Athens to
receive small part of
their benefits, as banks
remained closed before
the referendum

INDIA LEGAL July 31, 2015

69

GLOBAL TRENDS/ Greek Referendum

The Greeks were irresponsible borrowing

money. But the rest of Europe was irresponsible
in lending it. The banks that lent the money
knew perfectly well the condition Greece was in.

The constant scorn that the European

leadership heaped on the prime minister and
finance minister convinced the Greeks that the
scorn was meant for them as well.
HARDSELLING
EURO VISION
German Chancellor
Angela Merkel insisted
on tough austerity
measures as a
condition for
a Greek bail-out

70

July 31, 2015

Europeans must either continue the game,

incurring the criticism discussed above, or
offer a compromise they wouldnt offer prior
to the Greek vote. One would lead to a view
of the European Union as a potential enemy
of nations that fall on hard times, while the
latter would cost the bloc credibility in showdowns to come.
It is likely that the Europeans will continue discussions with Greece, but they will be
playing with a much weaker hand. The Greek
voters have, in effect, called their bluff.
It is interesting how the European leaders
maneuvered themselves into this position.
Part of it was that they could not imagine
the Greek government not yielding to the
European Union, Germany and the rest. Part
of it was that they could not imagine the
Greeks not understanding what default
would mean to them.
The European leaders did not take the
Greeks considerations seriously. For the
Greeks, there were two issues. The first issue
was how they would be more likely to get the
deal they needed. It was not by begging but
by convincing the Europeans they were ready
to walka tactic anyone who has bargained
in the eastern Mediterranean knows.
Second, it is necessary to be prepared to
walk and not simply bluff it. Syriza campaigned on the idea that Greece would not
leave the eurozone but that the government
would use a no vote on the referendum to
negotiate a better deal with EU leaders.
The EU leadership was convinced that the
Greeks were bluffing, while the Greeks knew
that with the stakes this high, they could not
afford to bluff. But the Greeks also knew,
from watching other countries, that while
default would create a massive short-term
liquidity crisis in Greece, with currency controls and a new currency under the control of
the Greek government, it would be possible
to move beyond the crisis before the sense of
embattlement dissolves. Many countries do

better in short, intense crises than they do in

ordinary times. The Greeks repelled an
Italian invasion in October 1940, and the
Germans didnt complete their conquest
until May 1941. I have no idea what Greeces
short-term ability to rally is today, but Syriza
is willing to bet on it.
GREXIT AND GREECES OPTIONS
If Greece withdraws from the European
Union, its impact on the euro will be trivial.
There are those who claim that it would be
catastrophic to the euro, but I dont see why.
What might be extremely dangerous is leaving the euro and surviving, if not flourishing.
The Greeks are currently fixated on the
European Union as a source of money, and
there is an assumption that they will be
forced out of the global financial markets if
they default. But that isnt obvious.
Greece has three alternative sources of
money. The first is Russia. The Greeks and
the Russians have had a relationship going
back to at least the 1970s. Now the Russians
are looking for leverage to use against the
Europeans and Americans. The Russians are
having hard times but not as hard as a couple
of months ago, and Greece is a strategic

prize. The Greeks and the Russians have

talked and the results of the talks are murky.
The BRICS (Brazil, Russia, India, China and
South Africa) summit began July 6 in Russia,
and the Greeks are sitting in as observers
and possibly angling for some sort of deal.
Publicly, Russia has said it will not give a
direct loan to Greece but will take advantage
of the crisis to acquire hard assets in Greece
and a commitment on the Turkish Stream
pipeline project. However, bailing out Greece
would give Russia a golden opportunity to
put a spoke in NATO operations and reassert
itself somewhere other than Ukraine.
In Central Europe, the view is that Russia
and Greece have had an understanding for
several months about a bailout, which could
be why the Greeks have acted with such
bravado.
Another, though less likely, source of
funds for Greece is China and some of its
partners. Working alone or with others to
help the Greeks would not be a foolish move
on their part, given that it would certainly
create regional influence at a relative low cost
mere tens of billions. However, it could
come with the political cost of alienating a
large portion of the European Union, making

Chinese assistance a slight possibility.

Finally, there are American hedge funds
and private equity firms. They are cash-rich
because of European, Chinese and Middle
Eastern money searching for safety and are
facing near-zero percent interest rates. Many
of them have taken wilder risks than this.
The US government might not discourage
them, either, because it would be far more
concerned about Russian or Chinese influence in the eastern Mediterranean.
Having shed its debt to Europe and
weathered the genuinely difficult months
after default, Greece might be an interesting
investment opportunity. We know from
Argentina that when a country defaults, a
wall is not created around it.
The European leaders have therefore
backed themselves into the corner they didnt
want. If they hold their position, then they
open the door to the idea that there is life
after the European Union, and that is the one
thought the EU leaders do not want validated. Therefore, it is likely that the Europeans,
having discovered that Syriza is not prepared
to submit to European diktat, will now negotiate a deal Greece can accept.
Behind all this, the Germans are considering the future of the European Union. They
are less concerned about the euro or Greek
debt than they are about the free trade zone
that absorbs part of their massive exports.
With credit controls and default, Greece is
one tiny market they lose. The last thing they
want is for this to spread, or for Germany to
be forced to pay for the privilege of saving it.
In many ways, therefore, our eyes should
shift from Greece to Germany. It is at the
heart of the EU leadership, and it is going to
be calling the next shotnot for the good of
the bloc, but for the good of Germany, which
is backed into the same corner as the rest of
the European Union. IL

THE RALLYING POINT

Greek Prime Minister
Alexis Tsipras, who
galvanized the nation for
a No vote, at a polling
station on July 5, the
Referendum Day

STOP PRESS
Just a few days after
the No referendum,
Greece agreed to a
harsher bailout than
what the EU had originally proposed. In
return for 86-billion
bailout of the economy,
Prime Minister Alexis
Tsipras has agreed to
abandon his anti-austerity promise. Greece
has agreed to labor
reforms, privatization of
several sectors,
increased taxation and
reduced pension.
Tsipras, who came to
power for his anti-austerity stance, now faces
an imminent crisis, as
opposition against him
will grow.

Courtesy Stratfor
INDIA LEGAL July 31, 2015

71

TERRORISM/ Islamic State

IS

CLO SING IN?

IN THE NAME
OF FAITH
The site of a blast at Imam
Sadiq Mosque in Kuwait
on June 26, executed by
an IS suicide bomber

The insidious spread of

ISIL globally seems to
have brought it right up to
Indias doors. With a
hostile Pakistan and a
shift in Afghanistans
strategic ties, are we
ready for this new phase
in terrorism?
By Col R Hariharan

HERE are ominous

signs that the IS is
increasing its ability
to destabilize nations
across the world. It
heralded the holy
month of Ramadan
with simultaneous
terrorist attacks, killing nearly 70 people in Tunisia, Kuwait and
France. The attackers were apparently
responding to a Ramadan message from an
IS spokesman who said: Muslims, embark
and hasten toward jehad. O mujahidin everywhere, rush and go to make Ramadan disasters for the infidels.
IS attacks continue undeterred by thousands of airstrikes and conventional operations carried out by different armies. Despite
drone attacks, battle-front setbacks and loss
of territory in Syria and Iraq, the IS continues its march. The recent attacks show its
innovative ability to decentralize terrorism
through local youth brainwashed by its

72

July 31, 2015

Photos: UNI

online propaganda beamed globally. They

also indicate that the IS is poised to develop
the ability to coordinate operations across
nations. In both Tunisia and France, a lone
gunman carried out the attack, while in
Kuwait, it was a lone suicide bomber who
killed 27 Shias in the Imam Sadiq mosque.
Many have researched why youth are
attracted to jehadi terror groups. The core
reasons are an anti-American mindset, coupled with Sunni sectarianism stoked by the
fundamentalist idiom of the Wahabi sect.
Lone wolf attacks by individuals seem to
have become the specialty of IS terror operations. It is perhaps the most cost-effective
way to spread terrorist attacks and is ideally
suited for Europe and the US. Despite

advanced technologies, no nation can keep

track of individuals whose jehadi sympathies
only show up when they attack.
TARGET INDIA
This can be a dangerous trend in a net-savvy
environment like India. With internet access
growing rapidly, special technology protocols
will have to be devised to weed out and shortlist potential converts to jehadi terrorism.
Though for some time now, Muslim youth
from India have been making a beeline to
Syria via Turkey to join the IS, their numbers
have remained small. But there are indications of IS presence in the country: the
Madhya Pradesh police busted the first-ever
cell affiliated to the IS in Ratlam in April

ANATHEMA TO
MODERNITY
Taliban attack on Afghan
parliament in Kabul on
June 22

INDIA LEGAL July 31, 2015

73

TERRORISM/ Islamic State

CHANGED
EQUATIONS
President Hamid
Karzai (right) was a
friend of India but
under present
President Ashraf
Ghani, India has
been sidelined

WORRISOME
WORLDVIEW
Abu Bakr
al-Baghdadi,
the IS leader,
who has been
proclaimed
as Caliph

What should be a
matter of concern
is the increasing
presence of IS in
Afghanistan. The
recent attack on
Afghanistan
parliament is a
strong reminder
that jehadi terror
threat remains
undiminished in
South Asia.

74

July 31, 2015

2015. According to media reports, Imran

Khan Muhammad Sharif, leader of the cell,
was allegedly recruited online by Yusuf (actual name Muhammad Shafi Armar from
Karnataka), leader of Indians fighting with
the IS in Syria.
According to the police, Imran Khan, in
online chats with Yusuf, sought his help to
make explosive devices, procure weapons
and select targets for attack. Yusuf asked
Imran to record each operation for using it in
IS online propaganda. Police are said to have
recovered some chemicals for making explosive devices.
Imrans profile, as the son of a government clerk and a college dropout, typifies the
average IS recruit the world overfrustrated
youth adrift in search of their moment of
glory. They are drawn by IS propaganda
which glorifies its achievements with gory
visuals and stresses that Jannat awaits martyrs. It would be useful for security agencies
to look for tell-tale signs of indoctrination
through close interaction with community
leaders. Vulnerable sections should be taken
into confidence to spread general awareness
of the threat to the whole community from
such lone wolves.

Meanwhile, most of Europe is in a state of

paranoia. This could affect their objective
approach to decision-making, not only on
jehadi terrorism and national security, but on
a whole range of other sensitive national
issues relating to Islamic minority, race relations and non-white immigration.
The French experience holds an important lesson for India because it has maintained social harmony despite its heterogeneous mix of people. Though jehadi terrorists
have been trying to disrupt it by periodic
attacks, the country has not allowed jehadi
paranoia to color its war against terror. If it
fails, jehadi terrorism will succeed in destabilizing the society by whipping up sectarian
and anti-religious confrontation. As the IS
comes nearer home, India is likely to be tested more often on this count.
Even as the IS has affiliates all over the
world, Abu Bakr al-Baghdadi (also known as
Caliph Ibrahim), the IS leader, now incapacitated with a back injury, boasts that the
Islamic State is thriving and expanding like
any good multi-national with solid quarterlies. We now employ hundreds of thousands
of functionaries, agents and operatives, to say
nothing of the millions of affiliates to which

we have licensed our franchise rights. Only

Walmart has grown at a comparable rate in
so short a time, and I wouldnt wish their corporate culture on the Badr Corps.
POWER PLAY
Al-Baghdadis global tactics to spread the IS
brand is what makes it a dangerous threat to
global stability, which has been hastened by
the Wests strategies for regime changes in
Libya, Egypt, Iraq and Syria. Actually, the
West-sponsored proxy war for regime change
of autocratic regimes by arming tribal and
sectarian militias and irregulars, including
those of Sunni extremism (the IS was one of
them), provided many of these groups opportunities to gain access to modern weapons
and warfare and establish their control over
pockets of influence. The IS perhaps benefitted the most from this strategy to spread its
control over a third of Syria and Iraq as well
as parts of Libya. Though fully aware of the
flaws in US strategy, President Obama seems
to have run out of ideas.
In this charged environment, the IS has
been drawn into a power struggle with the alAaeda (AQ). The Sunni sectarian idiom is
also related to the IS competitive strategies

against the AQ to justify its self-styled

caliphate. However, the world over, Shias and
Sunnis have, by and large, lived amicably,
particularly in India, which has the largest
population of Shias next only to Iran. However, the spread of Islamic fundamentalism
of the Wahabi kind has fanned latent sectarian differences in South Asia. Shias in
Pakistan have been the favorite target of AQ
affiliates and a few hundred of them have
perished at the hands of the Taliban, with the
state taking little action to curb them.
The confrontation between the IS and
rival jehadi groups such as the AQ has continued, particularly in Syria, home turf of the
IS. This has sent a strong message to AQs
Syrian affiliate, Nusra Front, which had been
enjoying some successes. Their relationship
with the IS had been uneasy after the proclamation of the Caliphate. So, probably, the
time for an overt conflict between the two
jehadi groups is nearing.
CLOSER HOME
But what should be of concern to India is the
increasing presence of IS in Afghanistan,
where the elected government of President
Ashraf Ghani is facing increasing attacks
INDIA LEGAL July 31, 2015

75

TERRORISM/ Islamic State

Lone wolves have

become the
specialty of IS terror
operations. This can
be dangerous in a
net-savvy
environment like
India. Well have to
devise technology
to weed out
potential converts to
jehadi terrorism.

DARK
REMINDERS
Lashkar-e-Taiba,
which carried out
the Mumbai terror
attack, remains
a big threat to
India

In real terms,
there is no
change in the US
attitude of
ignoring Pakistan
as the source of
Indias
transnational
terrorist threat.
India has to fight
its war on jehadi
terrorism and deal
with Pakistan on
its own terms.

76

July 31, 2015

from the Taliban. The recent daring Taliban

terrorist attack on the Afghanistan parliament while it was in session is a strong
reminder that jehadi terror threat remains
undiminished in South Asia.
In fact, this threat has increased in
Afghanistan. According to a UN report, in
the first four months this year, 3,000 civilians have been killed or injured in jehadi terror attacks in Afghanistan, up 16 percent for
the same period last year. In particular,
Kabul has become more vulnerable to attacks
against foreigners and embassies.
According to the US State Departments
Country Report on Terrorism 2014 released
on June 19, 2015: A number of these attacks
were planned and launched from safe havens
in Pakistan. Afghan National Security Forces
(ANSF) provided security throughout most
of Afghanistan as the transition to full
Afghan leadership on security continued and
US and Coalition Forces (CF) continued to
draw down during 2014. The ANSF and CF,
in partnership, took aggressive action against
terrorist elements in Afghanistan, especially
in Kabul, and in many of the eastern and
northern provinces.
The resurgence of the Taliban comes at a
time when President Ghani is trying to mend

fences with Pakistan to fight Taliban terrorism; at the same time, he has entered into
closer strategic relations with China in preference to India, Afghanistans traditional
strategic partner.
DRIFTING APART
This is impacting Indias plans in Afghanistan; it has already pruned its mega $10.8
billion Hajigak iron ore mine development
and infrastructure project, conceived in
November 2011, to just $2.9 billion. It has
also revived its plans to further develop the
Chabahar Port in Iran to provide an alternate
strategic link to Afghanistan and Central
Asia and as a strategic counterpoise to
China-aided Gwadar Port in Pakistan. These
strategic plans could be jeopardized with the
worsening terrorist situation in Afghanistan,
as perhaps for the first time, India is virtually
excluded in its strategic make-up by design.
According to a recent Reuters report,
fighters allied to the IS have seized large
areas in Afghanistan for the first time. It
quotes eye-witness accounts in Nanganahar
province saying the IS was scorching out
poppy fields to prevent the funding of
Talibans fight against the government.
Unlike the Taliban who force villagers to feed

them, the IS has come with lots of cash and

spends it on food and for luring the youth to
join them. So power struggle between the IS
and the Taliban in Afghanistan would probably happen sooner than later.
However, India should not underestimate
the Taliban threat. Though the Tehrik-eTaliban Pakistan (TTP) suffered setbacks due
to Pakistan army operations last year, the
Haqqani Network, a Taliban affiliate, continues to be a powerful entity. In September
2014, AQ leader Zawahiri announced the
creation of a separate wing for India, including Kashmir, to wage jehad. AQ wants to
portray Prime Minister Narendra Modi as an
enemy of Islam.
LET THREAT
And India-specific terror group Lashkar-eTaiba (LeT) which carried out the attack on
the parliament on December 13, 2001, and
the 26/11 terrorist attacks in Mumbai,
remains intact and is ready to operate with
impunity against India from bases in Pakistan. Despite all the well-wishers in India
and Pakistan for peace and amity, the
Pakistan government is either unwilling to
bite the bullet or powerless to curb the use of
its territory as a base for attacks on India.
While the US terrorism report said that
India remained a target of terrorist attacks
and referred to AQs announcement of a new
branch in the Indian subcontinent, it pussy-

footed Pakistans culpability saying: Indian

authorities continued to blame Pakistan for
supporting terrorists operating in Jammu
and Kashmir. In real terms, there is no
change in the US attitude of ignoring Pakistan as the source of Indias transnational
terrorist threat. All talk of counter-terrorism
cooperation with the US would, therefore, be
limited to information sharing and some
joint training activity and nothing more.
India cannot expect the US to help in reining
in Pakistans use of terrorism as a strategic
tool against India.
The moral of the story is that India has to
fight its war on jehadi terrorism and deal
with Pakistan on its own terms. Recently, IS
flags, along with Pakistani ones were displayed in a recent separatist rally in Kashmir
at the start of Ramadan. While the BJP
spokesman said Indian agencies knew the IS
might spread its hold in India as well, and
that the NDA government has made sure
that this never happensISIS will not be
able to gain a foothold in India, the GOC of
16 Corps, Lt General KH Singh, said that the
IS was trying to get a foothold in India.
In the war on terror, one can never be too
ready. But how alert is the intelligence apparatus to the jehadists at our gates? IL

ATTACKING KEY
INSTITUTIONS
The December
2001 attack on
parliament

Col Hariharan is associated with the

Chennai Centre for China Studies and the
South Asia Analysis Group
INDIA LEGAL July 31, 2015

77

HEALTH/ RO Technology

Money down the drain?

The RO water
purification
industry was
rattled recently
when a petition
was filed
before the
National Green
Tribunal
questioning its
tall claims
By Dinesh C
Sharma

UNFOUNDED
CLAIMS?
Kent RO Systems
Limited claims that its
water purifiers do not
waste water

78

July 31, 2015

HE Maggi controversy has

shown how our kitchens
are increasingly being governed by national laws and
regulations or their absence thereof. Just as stringent provisions of the Food
Safety and Standards Act have dramatically
purged kitchen shelves of junk food, serious
questions are now being asked about the
water we drink in the absence of regulation
on household water purification systems.
This lack of regulation has serious implications for health as well as the environment.
A petition has been filed before the National
Green Tribunal (NGT) questioning the feasibility of reverse osmosis (RO) technology on
the ground that the process results in 80 percent wastage of water and demineralization
of filtered water. The tribunal has issued

notices to the Ministry of Water Resources,

the Central Pollution Control Board, Ministry of Environment and Forests, as well as
the Water Quality India Association. All
respondents have been asked to file replies
within two weeks, and the petition has been
posted for hearing on August 4 before a
Bench headed by Justice Swatanter Kumar.
HUGE WASTAGE
Making a case against RO filters, Sharad
Tiwari, general secretary of Noida-based voluntary body, Friends, pointed out in his petition that large quantities of water are being
wasted as RO systems cannot convert around
80 percent of the water into potable water.
For each liter of filtered water, the domestic
filter dumps 3 to 4 liters as waste. This waste
water can be used for non-consumptive purposes like floor cleaning and toilet flushing,

but it is not easy to collect waste water all the

time.
Due to the absence of any regulatory
restrictions, the petition alleges, manufacturers are cashing on consumer sentiments
by making tall claims like turning drain
water into pristine potable water.
Invoking provisions of the Water
(Prevention & Control of Pollution) Act,
1974, the petition says it is the responsibility
of official agencies like state pollution control
boards to survey different areas under their
jurisdiction, collect water samples, test them
to see if sewage or industrial effluents are
contaminating water supplies and take necessary steps to ensure potable water supply to
citizens. The respondent has been ignoring
the Act itself and no steps have been taken,
though by the way of RO systems, water pollution is increasing everyday considering the
quantity of water waste coming from the RO
filters, it adds.
Broadly speaking, it is the duty of the
state to supply potable drinking water to people as an extension of Article 47 of the constitution, which lays down that it is the primary duty of the state to raise the level of
nutrition and the standard of living of its
people and to improve public health. By
forcing people to opt for household water
treatment systems such as RO, the state is
being negligent.
FLEECING CONSUMERS
Water and consumer experts point out that
water purification systems in India operate
in a regulatory vacuum. In the absence of
any regulation, all kinds of water filters based
on different technologies are being sold in
India and consumers are being fleeced, says
Bejon Misra, a consumer rights expert.
Earlier, ceramic filters, iodine-based gravity
and iodine-based faucet-mounted filters
were popular. Now the market has been captured by RO devices.
In the US, the Environment Protection
Agency (EPA) has developed standards and
protocols for testing microbial purifiers.
India does not have any equivalent mechanism that lays down minimum standards or
requirements for water filters. The Bureau of
Indian Standards has guidelines covering

ultra-violet units and ceramic candle filter

units, but it regulates only materials and fabrication of devices. IS:7402 lays down microbial performance standards, requiring filtered water to be bacteria-free when the unit
is challenged with a set number of Eschericia
coli. Generally, the standards do not specify
removal/inactivation requirements of all
microbial pathogens in water. Moreover,
unlike the standard for bottled water, compliance with these standards is entirely voluntary. Drinking water specifications have
been laid down in IS:10500, which prescribes essential and desirable characteristics
of potable drinking water supplied through
pipelines by water utilities. Although private
sources of drinking water may be outside the
jurisdiction of public health and water supply authorities, such supplies should still be
of potable quality, the standards manual
says. It does not specifically cover home
water purification devices.
The larger issue is the quality of water
supplied by water utilities in Indian cities
and whether they can vouch for contamination-free distribution networks. The water
supplied by Delhi Jal Board (DJB), for instance, does not really require purification at
home. But because even DJB is unable to
give assurance of the quality, RO water companies have taken advantage of that,
explains Himanshu Thakkar, water expert
and convener of South Asia Network on

OFFERING LEEWAY
The state has failed to
provide potable drinking
water, resulting in
demand for ROs

RO removes
essential minerals
such as calcium,
potassium, sodium
and magnesium.
The filtered water
thus becomes
a dangerous
extracting agent
when consumed as
it extracts vital
minerals from the
intestines, liver and
kidneys, creating an
imbalance within
the body.
A water expert
INDIA LEGAL July 31, 2015

79

HEALTH/ RO Technology

COLOSSAL
WASTE
RO companies
suggest that
water thrown out
by ROs can be
used for
gardening and
other purposes

Water and
consumer
experts point out
that water
purification
systems in India
operate in a
regulatory
vacuum. India
does not have
any mechanism
laying down
standards for
water filters.
80

July 31, 2015

CAMPUS UPDATE

Dams, Rivers and People. RO systems wasting excessive amounts of water need to be
banned. But before this can be done, NGT
and the government need to work towards
ensuring that water utilities are able to provide assured quality of water and that there is
a credible redressal system to hold people to
account. In the meantime, Thakkar said, the
government can fix norms so that the
wastage is minimized and even RO-refused
water can be used and not just drained out.
NERVOUS INDUSTRY
Meanwhile, the NGT proceedings and
chances of a likely regulation have rattled the
water filter industry. Kent RO Systems
Limitedwhich is the largest-selling RO
brand in Indiaissued a statement claiming
that it has developed no water wastage technology RO purifiers. At the same time, it has
got the Indian Medical Association (IMA) to
endorse its purifiers. IMA has evaluated
KENT RO+UV purifiers and have validated
the claim that KENT RO+UV purifiers
makes purer than boiled water and prevent
diseases, the company claimed, forgetting
that IMA is not a certifying agency for water
quality nor does it have any expertise in this
field. Incidentally, BJP MP and actress Hema
Malini is a brand ambassador of Kent and
has been actively promoting the use of water
ATMs based on RO technology.
Experts, however, do not buy Kents
claims. RO system by definition has certain
refuse, so I wonder how their RO has no

water wastage, asks Thakkar.

Another expert said on condition of
anonymity that it is misleading to say that
water is not wasted in Kent RO. The rejected water from the RO system is highly mineralized and contains bacteria and viruses.
This water is stored in a separate tank, which
they claim may be used for floor washing,
etc, he said. Usually, impurities in the form
of suspended and dissolved solids are found
in water. These can be removed by filters,
whereas dissolved impurities of calcium,
potassium, sodium, magnesium, etc, are
essential minerals. It is necessary to retain
these nutrients in the water. RO removes
these minerals also. The filtered RO water
thus becomes a dangerous extracting agent
in the human body when consumed. Since it
contains no minerals, it extracts vital minerals from the intestines, liver and kidneys, creating an imbalance within the body, the
expert explained.
However, Manoj Mishra, convener of
Yamuna Jiye Abhiyan, says that while such
technology-based, high energy input and
wasteful methods of water cleaning are clearly undesirable, there might be some situations where, depending on the extent of pollutants in the water, such measures might be
unavoidable. He further suggests that the
NGT can direct the government for policy
interventions so that the gullible public
doesnt fall victim to industry overreach for
profit motive.
RO technology was originally developed
for desalination of sea water for using it for
industrial purposes. Even in the Middle East
where large desalination plants are installed,
desalinated water is used only for industrial
purposes and horticulture, while the bulk of
drinking water requirements are met through imported bottled water.
The petition before NGT could open up
larger issues relating to drinking water supplies in India, though it primarily targets RO
technology. The issue needs to be examined
in view of regulation, technology feasibility,
health, role of water utilities and growing
commoditization and privatization of water.
Access to safe drinking water is a basic
human right, and it is the job of the government to ensure that every citizen gets it. IL

NLU Jodhpur to organize

2nd Alumni meet
NATIONAL LAW UNIVERSITY, Jodhpur, will hold an alumni meet on
October 3 this year. It will be the second such meet there. An alumni meet is always a special event for students as they go down
memory lane and relive their younger days. The University will be
sending out personal invitations to all previous students. A large
number of them are expected to attend.

NALSAR to host
moot court
competition
NALSAR University of Law, in collaboration with National Foundation for
Corporate Governance, is going to
host the 4th Moot Court Competition
from August 14 to 16 in Hyderabad.
Eastern Book Company and SCC
online, a legal database, are also col-

laborating with NALSAR for it. The

Moot Competition is being conducted
to increase interest in the fast-evolving
field of corporate law. Associates and
senior associates of law firms will
judge the Moot, while the final will be
judged by Partners, a leading law firm.
NALSAR students have excelled in
mooting at the national and international level. NALSAR also won the
extremely prestigious Willem C Vis
International Commercial Arbitration
Moot Court Competition in Vienna.

Amity Law School to conduct

symposium on Competition Law
AMITY LAW SCHOOL, NOIDA, will hold a national symposium on Competition
Law in India on August 21, 2015. The symposium will stress on the objective
of Competition Law to help maximize consumer welfare by promoting competition by offering better quality products at lower prices. The organizing committee is inviting academic and policy papers on areas like Competition Law and
Abuse of Dominant Position, Anti-trust Laws and Competition Law and
Consumer Welfare. All authors who get selected for the symposium will be
given certificates, while the best paper will be given a cash prize.

Legal Aid Clinic

THE District Legal Service Authority, Gautam Budh Nagar, has given
permission to needy and weaker sections of society to use the Legal
Aid Clinic set up at Galgotias University. This Clinic was set up there in
collaboration with UP State Legal Service Authority. The Clinic was inaugurated by Justice Dipak Mishra of the Supreme Court on April 26,
2014. The Clinic conducts programs to create legal awareness among
people and also has a 24-hour helpline.
INDIA LEGAL July 31, 2015

81

PEOPLE / Children on the Edge

FLEEING
FROM DEATH
A Palestinian
boy runs away
from Israeli
soldiers during
clashes.
It came
following a
protest against
the Jewish
settlement of
Qadomem, in
the West Bank.
FEAR IN
THE AIR
Boys
hesitatingly
walk behind
patrolling
soldiers in
Bujumbura in
Burundi

BLEAK
FUTURE
A Palestinian
boy sits in his
house, which
witnesses said
was damaged
in an Israeli air
strike, in Gaza
city

HEAVY BURDEN
A boy carries
whatever belongings
remain, walking over the
rubble of damaged
buildings in the al-Kalaseh
neighborhood of Aleppo

ENDLESS WAIT
Afghan children
patiently wait for
aid near a
landslide site at the
Argo district in
Badakhshan province

Compiled by Kh Manglembi Devi

Photos: UNI

82

July 31, 2015

RNI No. UPENG/2007/25763

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

3ULQWHGRQ HYHU\PRQWK 3RVWHGDW6XE3RVW2IFH6HFWRU1RLGD