You are on page 1of 43

Royal tussles over King Solomons mines:

Sree Padmanabha, Mysore treasure troves

60

Shantanu Guha Ray interviews


Malegaon prosecutor Rohini Salian

34

NDIA
EGAL
I L

www.indialegalonline.com
i

August 15, 2015

`100

YAKUB
SHOULD
WE
SHOOT THE
MESSENGERS?
ALSO
What price witness protection?
Ajith Pillai talks to lawyers, judges, cops
Pachauris
ignoble
exit from
TERI
38

Ramesh
Menon tells
you how to
make an
online will
and rest in
peace 63

DEFAMATION LAW:
Strange bedfellows 28

16

LETTER FROM THE EDITOR

INDERJIT BADHWAR

WITNESS TO
TERROR
his editorial is not about the pros and cons
of the death penalty. There are legal luminaries, some of the best in India who have,
during this century and the previous one,
debated themselves hoarse on the efficacy,
ethics and morality of this primeval lethal approach
to deter and prevent social and political crimes and
enforce obeisance. Perhaps one of the sharpest
brains on this subject is Dr Surya Deva, associate
professor of law, City University of Hong Kong, who
held forth with luminous erudition at a seminar on
Indian Supreme Court on Death Penalty: The Hero,
or Not So Hero?
He dealtbased on copious and painstaking
research and without casting any aspersions on its
integrity or motiveswith the approach taken by the
Indian Supreme Court in handing down death sentences, based on it having accepted, in principle, the
standard that capital punishment should be meted
out in the rarest of the rare cases. The eminent professors discussion was a scholarly critique of judicial
decision-making of the apex court and whether it
had been consistent in its approach.
This subject has relevance to the Yakub Memon
case because it threw up a startling new dimension to
the use of the death penalty as a whole. Should
rarest of the rare be the only criterion for sending a
man to the gallows or do other mitigating norms
perhaps not even falling within the definition of pure
law and jurisprudenceplay a role in determining
the fate of a criminal?
Most thinking peopleat least those who lead
their daily lives based on a concern for other human
beings and the welfare of society in general, rather
than driven by blind hatred and paranoiabelieve
that the rule of law must never be colored by political

August 15, 2015

considerations, intimidation, misplaced sentimentality or the demands of lynch mobs. Most controversial cases which kindle national-level, high-decibel
slanging matchesand the Memon case is one of
themare the real agni pariksha of our judges and
judicial system. These are the occasions when they
must stand up and be counted and, no matter what
their point of view, make themselves heard loudly
and clearly with the voice of reason and fair play as
their strongest weapon.

ersonally, I consider Yakub Memon neither a


hero nor a coward and the courts have decided, on the weight of evidence presented to
them, that he was a player in facilitating the 1993
Bombay bomb blasts, killing hundreds of innocent
civilians. And he received his comeuppance.
But here is, perhaps, where the concepts of rarest
of the rare and extenuating circumstances play cat
and mouse with each other. The altered circumstances which have come to light, as Ajith Pillai
points out in this issues cover story, indicate thatin
a senseMemon was the spy who came out of the
cold and helped India solve the mystery that
enshrouded the horrific Bombay bomb blasts.
The details are in the story that follows. Very
briefly, they emerged following an account by the late
counter-intelligence chief B Ramana legendary
and highly respected officialwho has vouched for
the invaluable intelligence provided by Memon.
Memon came back to India on his own volition following secret talks and spilled the beans on his own
familys involvement as well as the complicity of
Pakistan in creating terror in India.
This was a breakthrough for Indian intelligence
beyond its wildest imagination. It is ultimately due to

this information, obtained with Yakub Memons


help, that India has been able to establish a credible
case in the world about Pakistan and ISIs direct
masterminding of terrorism in India, as well as its
sources of funding. Ramans account, interestingly, is
backed by a former colleaguethe Bombay bureau
chief in 1993 when I was editor of India Todaythe
intrepid Masih Rahman who had been left mentally
shattered by the Bombay blasts. Today, Rahman is
indignant at the complete lack of recognition given
to Yakub for his role in blowing the whistle on the
Pakistan-backed terror network.
Yakub has been on the ISIs hit list and a prime
target for the D-Company as a betrayer and
informer. In Kashmir and Punjab, former Pakistantrained bombers and terrorists who surrendered and
helped the Indian side as friendly militants were
rewarded and protected by our forces. It is common
the world over to make plea-bargains with former
criminals and to protect informers who help law
enforcement nail the larger gangs and ring leaders.
Thats how mafia dons and foreign spies are mostly
caught and locked up in the US.
In fact, the US has a witness protection program
in which thousands of former criminals who turn
states evidence (approver) or penetrate terrorist
gangs are given new identities and protected around
the clock. Also, police investigators and officers make
deals with criminal informants to unearth or prevent a bigger crime and inform the prosecutors and
judges to show leniency to the informer if the information yields results or promising leads.

f what Raman says is trueand nobody has


denied his versionthen, Yakub was also a
whistleblower and an invaluable witness. Was
this extenuating or mitigating circumstance
brought to the attention of our courts by the prosecutors? Had that been the case, then, would the
rarest of the rare doctrine apply to Yakub Memon?
These are questions which will continue to trouble us and make us think about our judicial system
and law and order machinery. Does the state have a
duty of standing behind a witness, whistleblower or
informer or does it have a policy to offer him up for
prosecution after it has extracted all the information? Under these circumstances, will informants
and witnesses cooperate?
What I find troubling is that despite witnesses
constantly turning hostile or disappearing or dying
in high-level criminal cases, we have paid scant

attention to the Law Commissions recommendations on the subject or to these famous lines penned
by Justice HK Sema in the K Anbazhagan vs Supdt
of Police, (2004) 3 SCC 767] case:
Free and fair trial is sine qua non of Article 21 of
the Constitution. It is trite law that justice should not
only be done but it should be seen to have been done.
If the criminal trial is not free and fair and not free
from bias, judicial fairness and the criminal justice
system would be at stake shaking the confidence
of the public in the system and woe would be the rule
of law.
In the Best Bakery Case, the Supreme Court reiterated that the state has a definite role to play in protecting the witnesses so as to avert the trial getting
derailed and the truth becoming a mere casualty, to
start with at least in sensitive cases involving those in
power, those who have political patronage and those
who could wield muscle and money power. As a protector of its citizens, the State has to ensure that during a trial, the witness safely deposes without any
fear of being haunted by those against whom he
wishes to depose, a leading law journal recently
commented.
Thats not a very complicated argument. Nor is it
easy to disagree with. We may never get to knowfor
national security reasonsthe details given to our
intelligence agencies by Yakub. But we need to establish even posthumouslyfor the sake of historical
veracitythe role he played in helping unearth
Pakistans trail of terror.

WATERSHED
MOMENT
The Mumbai blasts of
1993 that followed
widespread riots
changed the city
forever

editor@indialegalonline.com
INDIA LEGAL August 15, 2015

AUGUST 15, 2015

ISSUE. 23

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

PROBE

New man in TERI

TERIs governing council replaces RK Pachauri with Dr Ajay


Mathur as DG, but doesnt mention the sexual harassment
charge as the reason for his removal, writes RAMESH MENON

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

POLITICS

Tug of war?
LEAD

Trust deficit

For advertising & subscription queries


sales@indialegalonline.com

OWNED BY E. N. COMMUNICATIONS PVT. LTD.

August 15, 2015

16

Yakub Memons sentence


sparks debate on whether
intelligence agencies
should be lenient on those
surrendering to them.
Similar is the case of
witnesses who come
forward to report crimes
and end up paying with
their lives. AJITH PILLAI
reports on both issues

Vice-President (Ad-Sales)
Vivek Mittal-09810265619

A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309


Phone: +9 1-0120-2471400-432 ; Fax: + 91- 0120-2471411
e-mail: editor@indialegalonline.com
website: www.indialegalonline.com
MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri,
Mumbai-400058
RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi834002.
LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj,
Lucknow-226001.
PATNA: Sukh Vihar Apartment, West Boring Canal Road, New
Punaichak, Opposite Lalita Hotel, Patna-800023.
ALLAHABAD: Leader Press, 9-A, Edmonston Road,
Civil Lines, Allahabad-211 001.

A million-dollar headache
The newly crowned Mysore maharaja, Boston-educated
Yaduveer Urs, has inherited huge properties along with
numerous litigations, reports IMRAN QURESHI
LEGAL EYE

CFO
Anand Raj Singh
VP (HR & General Administration)
Lokesh C Sharma
Circulation Manager
RS Tiwari

Published by Prof Baldev Raj Gupta on behalf of E N Communications Pvt Ltd


and printed at Amar Ujala Publications Ltd., C-21&22, Sector-59, Noida. All rights
reserved. Reproduction or translation in any
language in whole or in part without permission is prohibited. Requests for
permission should be directed to E N Communications Pvt Ltd . Opinions of
writers in the magazine are not necessarily endorsed by
E N Communications Pvt Ltd . The Publisher assumes no responsibility for the
return of unsolicited material or for material lost or damaged in transit.
All correspondence should be addressed to E N Communications Pvt Ltd .

38

FOCUS

Defame at ones own peril


Touchy leaders have often taken recourse to the defamation law. But
what is more importantright to freedom of expression or right to
reputation? VENKATASUBRAMANIAN V describes how Rahul Gandhi,
Subramanian Swamy and Arvind Kejriwal are on the same page
regarding this draconian law

PROFILE

Indomitable Salian
Special public prosecutor for Maharashtra, Rohini Salian, refuses to toe
the line of the NIA in the Malegaon blasts case. SHANTANU GUHA RAY
describes her steadfastness in bringing justice to the nine who were
falsely charge-sheeted and arrested

41

The Sangh Parivar debates on the direction the economy


should take. While Modi is courting global capital, the RSS is
harping on indigenization, reports SAMPAD PATNAIK
ECONOMY

Fretting of farmers

44

In the backdrop of the land acquisition debate, farmers are


taking their fight for land to the courts. PAMELLA DMELLO writes
about the struggle of Goas cashew farmers against an upcoming
golf course. And KAUSHIK JOSHI reports on an interim relief for
farmers of Devbhoomi Dwarka district fighting Essar
STATES

Kashmirs flooding

28
34

AASHA KHOSA
writes that torrential
rains and repeated
flooding of Kashmir
Valley have played
havoc with the
states economy,
making vegetables
costly and ruining
the carpet industry
PROPERTY

Gold up for grabs?

52

Where there is a will

60
63

If the thought of preparing a will seems laborious, rest easy.


There is an easy and cheaper way out in the form of an online
will, says RAMESH MENON
ENVIRONMENT

Concrete proposals

66

The property boom and renovation of buildings leaves behind


mountains of waste. PAPIA SAMAJDAR reveals new draft rules
regarding disposal of this waste

70

HUMAN RIGHTS

Dance therapy

A danseuse starts a novel dance experiment in Alipore jail to


reform inmates and teach children. SUJIT BHAR reports on the
therapeutic effect of this effort
SOCIETY

A roof over my head

74

They are educated and have the wherewithal to buy a home. Yet,
many Muslims are finding the doors shut on their faces. This,
says SABIHA FARHAT, is the biggest cause of ghettoization

56

Following the temple gold monetization scheme of the Modi


government, what will happen to the wealth of Padmanabhaswamy
Temple, the worlds richest temple? JACOB GEORGE probes

REGULARS

VOLUME. VIII

Edit................................................................................4
Ringside........................................................................8
Quote-Unquote.............................................................9
Supreme Court............................................................10
Courts......................................................................... 12
National Briefs.............................................................14
International Briefs.......................................................78
Is That Legal............................................................... 80
Wordly Wise.................................................................81
People......................................................................... 82

Cover Design: ANTHONY LAWRENCE

INDIA LEGAL August 15, 2015

QUOTE-UNQUOTE

Ye Dilli ki badkismati hogi (It will


be Delhis misfortune)

Even if my husband
does anything wrong,
he too will not be
spared.

Delhi Police Commissioner BS Bassi,


on whether the police should be under the
control of the state government, in
The Times of India

The new chairperson of


Delhi Commission of Women,
Swati Maliwal,
in The Indian Express

After Emergency, the


people of India voted Indira
Gandhi as the PM. If we have to
apologize, then people of India
will also have to apologize.
Former Union Minister Salman Khurshid,
responding to a query whether Congress
should admit its guilt of having imposed
Emergency, in The Times of India

Even if the militants had taken


my daughter hostage, I would not
have released a single terrorist.
Former J&K CM Farooq Abdullah,
referring to the center releasing terrorists in
exchange of Mufti Mohammad Sayeeds
daughter, in 1989, in The Financial Express

The Oxford debate has a huge


significance. It is good that
Shashiji was there ... What he
spoke there reflected the sentiments of the citizens of India
Aruna

AIADMK MP R Sundaram, on
queries from the opposition
about Jayalalithaas health, in
The Indian Express

The Vyapam scam in


Madhya Pradesh has
forced all of us to hang
our heads in shame.

PM Modi, praising Congress MP Shashi


Tharoor for his speech in Oxford on the
need for British reparations for colonial
rule, in The Times of India

VERDICT
The best way to get a bad law repealed is to enforce
it strictly.
Abraham Lincoln

Those who talk about


Ammas health, I am
warning you...your
tongue will be cut off.

They have enjoyed rosogollas for


35 years and left only gollas
(zeros) for the people. The people
of Bengal will never pardon them

Former Himachal Pradesh


CM Shanta Kumar, in a letter to
BJP chief Amit Shah, in
Hindustan Times

West Bengal CM Mamata Banerjee,


criticizing the CPM at a rally in Kolkata

August 15, 2015

INDIA LEGAL August 15, 2015

SUPREME COURT

Kohli asked to pay `25 lakh


HE eight-month-old legal battle
between Bollywood screenwriter
Jyoti Kapoor and director-producer Kunal Kohli over the yet-to-bereleased film Phir Se has come to an
end. The apex court has asked Kohli to
pay her a compensation of `25 lakh in
an out-of-court settlement.
The court also asked Kohli to pay
`35 lakh to India Stories Media and
Entertainment Pvt Ltd, as well as give
due credit to Kapoor in Phir Se. It

allowed Kohli to release the film after


paying the amount.
Kapoor and India Stories Media
and Entertainment Pvt Ltd had gone to
court accusing Kohli and a producer at
Bombay Film Company Pvt Ltd of plagiarism and breach of trust. They
alleged that the storyline of Phir Se
had uncanny similarities with Kapoors script RSVP, the script of which
she claimed to have discussed with
Kohli at some point of time.

No reservation
for Jats

Drug pricing
criticized
inding fault with the center over its
pricing policy of essential drugs, the
apex court observed that life-saving
medicines were not reaching the poor due
to skyrocketing prices, aggravating
their misery.
It was hearing a petition of All India
Drug Action Network, an NGO, against the

F
10

August 15, 2015

HE Supreme Court declined the


centers plea to reconsider its
judgment on granting OBC status
to Jats. In March this year, it had annulled the governments decision to
reserve seats for Jats in jobs and educational institutions under the OBC category in nine states.
While setting aside the review petition filed by the center, the court ruled
that there was no reason, prime facie,
for reconsidering the verdict.
It also dismissed another petition by
a group of Jat students, who sought
reservation benefits on the grounds that
they had passed various levels of a
bank recruitment exam as OBC candidates, but were yet to get appointment
letters.

sion power can be used only if the convict


seeks freedom.
An interim order of the apex court had
forbidden the Tamil Nadu government
from using its power of remission. The
order was issued after the Tamil Nadu
government decided to release Rajiv Gandhi assassination convicts, Perarivalan,
Murugan and Santhan following the commutation of their death sentences into life
imprisonment by the apex court. They
had spent more than 20 years in jail.
The Tamil Nadu government also
wanted to set free four other convicts on
the same ground. The verdict will not
apply to them.

drug pricing order of the center.


Pointing out that some essential
medicines were being sold at exorbitant
rates by the center, the court wanted the
Department of Pharmaceuticals under the
Union Ministry of Chemicals and
Fertilizers to revisit its price-fixing formula
and come up within six months with a
price order that is reasonable.
It could do so after getting views of all
parties. The court also asked the NGO to
make a presentation to the center and
directed the center to submit its response.

HE center and the Assam government


were left red-faced in front of the Court
over illegal migrants. Glaring failures
came to light in a report on measures taken
to stop illegal migrants sneaking through the
Indo-Bangladesh border.
The apex court itself had appointed a
commissioner to prepare the report.
Observing that merely making rules was
not enough to address the critical issue, the
court felt that nothing concrete had been
done. It noted that work on total fencing of
the international border was still pending
and there was a shortage of BSF and police
personnel needed to thwart illegal migrants
from entering India.
The court asked both the center and the
state to improve border roads and electrify
flood lights on border areas. It also wanted
the government to assess the ground reality.

Relief for life convicts


tate governments plea that they be
allowed to use their power of remission for life convicts who had
already served 14 years in jail was
accepted by the apex court.
However, the court laid down certain
restrictions. States cant use the remission power in case of rape-cum-murder
convicts, for convicts whose jail term has
already been mentioned by the apex court
or the high courts, where the accused is
serving a life term under a central law,
and where the life convicts case had
been probed by a central investigative
agency such as the CBI.
The court also ruled that the remis-

Take steps on
illegal migrants

Checking the
ordinance route
aking cognizance of a petition filed by a group of farmers NGOs that questioned
the Modi governments move to
bring in the land acquisition law
through the ordinance route, the
Supreme Court asked the center
to submit its response within four
weeks. The petition alleged that
the center was trying to impose
laws on the nation through ordinances by ignoring parliament.
The court wanted to find out
whether the constitution allowed
the government to re-promulgate
the land acquisition ordinance.
The petition pointed out that
the government was throwing
constitutional norms to the wind
by going for ordinance raj.
It held that only parliament
had the power to make laws, and
the land acquisition law was repromulgated three times by the
center. This was after it was first
promulgated in December last
year, without getting the
go-ahead from parliament.
The petition alleged that the
center was not even bothered that
it had been issued a notice on the
issue by the apex court in April
this year.

Criminal proceedings against Mallya


AKING a dim view of UB Group Chairman
Vijay Mallya defying summons of the Enforcement Directorate (ED) in a case where he
has been accused of FERA violation, the Supreme
Court sanctioned criminal proceedings against him
by the ED. It also asked him to pay `10 lakh for trying to evade the legal process.
Mallya had pleaded against criminal proceed-

ings by the ED. In a letter to the agency, he had


cited an extremely busy schedule for failing to
appear before the ED and sought a date that suited
both parties.
The court took strong objection to the tone and
tenor of the letter and felt it reeked of arrogance.
Compiled by Prabir Biswas
Illustrations: UdayShankar
INDIA LEGAL August 15, 2015

11

COURTS

Take a decision on Sainik Farms

AKING a serious note


of the lethargic attitude of both the center and the Delhi government in deciding the fate
of Sainik Farms in South
Delhi, the Delhi High
Court observed that the
issue cant be allowed to
drift further and there has to
be a solution. It was hearing a
petition filed by an NGO that apprised the court of rampant illegal
constructions in the colony.

The court pointed out that the


state government must decide
whether it wants to demolish Sainik Farms or regularize the colony.
The Delhi government was given
two weeks to send a concrete proposal (either on demolition or regularization) to the Ministry of Urban
Development, while the ministry
was directed to submit its views to
the court within two weeks of
receiving the proposal.
The court will again take up the
matter on August 19.

New meaning to motherhood


ETTING the stage for a relook
into the concept and meaning of
motherhood, the Delhi High
Court ruled that any woman who becomes a mother by opting for the surrogacy route must be treated at par with
a biological mother.
The ruling came after a petition was
filed by a government employee who
was a commissioning mother. Her
application for maternity and child care
leave was rejected because she had
not given birth to the child herself.
The court sanctioned her leave
while giving a new interpretation to

Rule 43 of Central Civil Services. The


judgment also underlined the need for
framing of maternity leave rules for
working mothers in the government.
The court observed that it would be
myopic to simply restrict maternity
leave to biological mothers, especially
when rapid advances have been made
by science in the area.
It ruled that commissioning mothers must be included in the ambit of
maternity. It felt that they were no
less significant in a mother-child bonding and were the principal caregivers
after the child was born.

CBI to probe Yadav case


HE Lucknow bench of the Allahabad High Court has
asked CBI to take over the case of Yadav Singh, former
chief engineer of Noida Authority, in view of gravity of
allegations, intricacies of the probe and limitations of the
Judicial Commission set up by the UP government. The court
was responding to a PIL that pleaded for a CBI probe.
Property documents and a huge stash of black money
were found at the establishments of Singh during income tax
raids last November. The state government argued that a judicial commission was already probing the case, but was told
that it was set up in 2015 only after the courts orders.
The court observed that the case was moving nowhere
and Singh enjoyed political patronage; therefore a CBI probe
was necessary.
Even the center wanted CBI to take over the case, but its
request was turned down by the state government.

Shoddy affidavits

12

August 15, 2015

OPS drafting affidavits on their own


is uncalled for, a division bench of
the Bombay High Court pointed
out in a judgment. Noticing that the
documents were riddled with grammatical and legal errors, the court
observed that it might lead to wrong
judgments.
The court also took the cops to
task for showing initiative and being

Cant ignore your


stepmother
T is common to find sons not giving a damn for their stepmothers. But they cant escape responsibility, especially if
she is childless, according to the Chhattisgarh High Court.
The court went by the judgment of the family court in
Kanker district while dealing with a petition of two stepsons
that contended that Section 125 of the CrPC, which deals
with maintenance for wives, children and parents, does not
take into account the stepmother. The family court had directed the petitioners to pay maintenance to their stepmother by
the family court.
The amicus curiae disputed the point made by the
petitioners. It held that they could not claim relief under
Section 125, which was benevolent by nature. He observed
that the stepmother was childless and needed to be looked
after as she was staying alone.
Considering the merits of the case, the court felt that there
was nothing untoward in the verdict of the family court.

firm on framing affidavits. It also did not


appreciate that changes suggested by public prosecutors were not welcomed by
police officers. The observation was made
in a case where a Solapur resident was kept
in a police lock-up.
The task of drafting affidavits is best left
to advocates, the court insisted. It wanted
that concerned policemen must get their
affidavits vetted by prosecutors.

Case of missing Air Force files


HE Allahabad High Court has ordered a
probe into the disappearance of documents pertaining to a 48-acre Air Force
land in two villages of Gautam Budh Nagar,
adjoining Delhi. It has directed the chairman of
the Board of Revenue in the state to complete
the investigation and submit its report in a
months time. The court said that the disappearance of documents from all government
officesfrom tehsil to collectors office
could be part of a bigger conspiracy.

The Division Bench of Justices Dhananjay


Chandrachud and Yashwant Varma said that if
the Board of Revenue fails to trace the documents within a month, the matter will be handed over to CBI.
Earlier, the court had given the probe to a
committee comprising the Gautam Budh
Nagar district magistrate, besides officers
from the Air Force and Army, but the committee had failed to trace the documents.
The next hearing is on August 27.
Compiled by Prabir Biswas
Illustrations: UdayShankar
INDIA LEGAL August 15, 2015

13

NATIONAL BRIEFS

BCCI to appeal
in high court
THE BOARD of Control for Cricket in
India (BCCI) has hinted it could appeal to
the high court against the recent decision
of a lower court in Delhi, exonerating
tainted cricketers. BCCI president Jagmohan Dalmiya, it is reliably learnt, has indicated that the cricket board could appeal to
the high court to challenge the lower
court's decision.
Dalmiya has told board secretary Anurag Thakur that the move was necessary
for the Boards image and also its ability to
manage corruption in the game. BCCI has
asked former Delhi Police Commissioner
Neeraj Kumar, now part of the Boards

anti-corruption unit, to keep up the pressure on the investigating team of Delhi


Police, and those from Chennai and
Mumbai Police and seek fresh leads that
would help the BCCI if it appeals in the
high court.
Besides the three mega cities, cops
from cities like Jaipur and Ahmedabad
who had probed charges of spot-fixing
against the cricketerscould also be contacted to get fresh evidence.
Efforts are on to pick up important
threads from the Mugdal Committee
report, more importantly, in the Annexure
papers, to prepare for the case in the high
court, a senior BCCI official said on conditions of anonymity.
There are over 30 files of Annexures in
the Mudgal Committee report.

Indira Jaising files PIL


on selection process
SEEKING THE termination of the arbitrary
style of designating senior lawyers in the
Supreme Court, senior advocate and former
additional solicitor-general, Indira Jaising, has
filed a PIL in the apex court. She has challenged
the lack of transparency in the selection procedure and demanded that lawyers be selected
across the entire practice, without any prejudices. Specialization areas like PILs, environment law and human rights are not given due
importance in the process so far. Jaising argued
for a transparent and performance-based selection process of senior lawyers. She claimed that
certain senior lawyers are designated from
states to which they dont belong to, nor have
they ever practiced there. The Supreme Court,
in its response accepted the suggestions, and
asked the counsels to express their opinion.

14

August 15, 2015

Poor get
punished, rich
escape

A RECENT study has corroborated the grim truth


that the legal system is skewed against the poor. Data
collected from interviews
with 373 death-row convicts found that around
three-fourths of them belonged to either the backward
classes or the religious
minorities. A major reason
for this is their inability to
hire competent lawyers to
fight for them. The study
was conducted by the students of National Law
University, Delhi, with the
support of the Law Commission. The study also revealed that around 42 percent
of those sentenced to death
by the trial courts belonged
to UP and Bihar.

THE HIGH COURT OF MEGHALAYA


AT SHILLONG
ADVERTISEMENT
Dated, Shillong, 30th June, 2015
Meanwhile, the cricket board has conveyed its inability to grant pacer S Sreesanth and others permission to play even
club-level cricket.
Sreesanth called a number of BCCI
officials but was told that the ban stays and
he will have to wait outside the ground. He
will not be able to play for private clubs, a
BCCI official has conveyed the highly emotive fast bowler who was banned for life.

One rank, one


pension for judges
ACKNOWLEDGING THE anomalies in the
pension scheme for judges, the union government has decided to introduce a one
rank, one pension scheme for them. In the
present scenario, the number of years served
as a judge is considered the main factor
while calculating pension. Since those who
come from the judicial services put in more
years of service as judge compared to those
who are selected from the bar, they get better
benefits. To remove this contradiction, the
government is set to bring a bill in the Monsoon Session of parliament to amend the
High Court Judges (Salaries and Conditions
of Service) Act, 1954. Last year, the Supreme
Court had mandated 10 years practice as an
advocate as the qualifying criteria for the
appointment of judges.

No. HCM.II/109/2015/1819 _ Applications in the prescribed format are hereby invited from citizen of India
as defined under Article 5 of the Constitution of India as prescribed under schedule F(C)(1)(a) of Meghalaya
Judicial Service (Amendment) Rules 2007 and Meghalaya Judicial Service (Amendment) Rules 2012, to fill 7
(Seven) vacant posts ( 3 posts reserved for Schedule Caste & Schedule Tribe & 4 posts for General Category)
in Grade II of Meghalaya Judicial Service in the scale of pay of Rs. 39,530-920-40450-1080-49090-1230-54010/pm. plus other allowances as admissible under the Rules from time to time. Applicant must be a graduate in
law having not less than 5 years of practice as an Advocate in the Courts of Civil and Criminal jurisdiction,
who are not less than 30 years and not more than 45 years of age in case of General category and 48
years in ase of candidates belonging to Schedule Caste and Schedule Tribes as on the last date of filing
the application. The applicant must have the knowledge of Khasi, Jaintia and Garo language.
The application complete in all respects should reach the office of the Registrar General, High Court
of Meghalaya on or before 27th August, 2015. Belated and incomplete applications will not be entertained.
Attested copies of certificate of proof of his/her educational qualification, Bar Councils registration, age
and practice certificate along with 2 (Two) copies of recent passport size photograph duly attested, accompanied with a Demand Draft of Rs. 500/-(Five Hundred) only for general candidates, Rs. 250 (Two Hundred
Fifty) only in the case of SC/ST candidates from a Scheduled Bank drawn in favour of Registrar General,
High Court of Meghalaya payable at Shillong should be submitted.
The written test/viva voce test and all other conditions for appointment shall be as per the Rules laid down
in Meghalaya Judicial Service Rules (As Amended). The candidates shall have to appear in the written test /
examination and interview at their own expenses as and when called for.
Application forms and syllabus may be downloaded from the official website of this High Court (meghalayahighcourt.nic.in).
General Information :
1. Please attached attested copies of certificates, two (2) recent passport size photograph along with a self
address stamped envelop.
2. The last date for submission of application will be on the 27th August 2015 during office hours at the
office of High Court of Meghalaya at Shillong. Applications received after the last date of submission due
to postal delay or any other reason will be summarily rejected.
3. The last date for submission of application, shall also be the date of determining the eligi bility criteria
of the Candidates for the posts.
4. No. TA/DA shall be paid to the application for attending the examination and personal interview.
5. Incomplete Application shall be rejected.
6. For further details, the Registry of the High Court of Meghalaya may be contacted during office hours.
Honble the Chief Justice reserves the right to relax any conditions mentioned in this Advertisement.
By Order,etc.
Sd/-

REGISTRAR

LEAD/ Yakub Memon Case

A
BREACH
OF
TRUST?

Getty Images

Yakubs death sentence has


raised questions about the way
probe agencies have made
fugitives surrender after giving
promises. With agencies having
washed their hands off him, will
new informants hesitate to
come forward?
By Ajith Pillai

16

August 15, 2015

HE death sentence awarded to Yakub


Memon raises a pertinent question. Should a deal brokered by the police or intelligence agencies that precedes the informal surrender by an accused be honored
following his or her arrest? And, in good
measure, though not directly related, it also puts a
question mark on the manner in which the system
allows witnesses to be coerced by vested interests to

QUESTION OF
FAIRNESS
B Raman, head of the
counter-terrorism division
of RAW, had revealed in
an article for Rediff.com
how Yakub had
surrendered

derail a case. In several such instances, the


state, the police and the prosecution are
guilty of hiding certain truths and backing
the side they favor to subvert justice. This is
the reason why several judicial experts,
including judges and lawyers, have been
strongly recommending the enactment of a
law that provides for comprehensive witness
protection. (See accompanying story.)
As for Yakub Menon, the prosecutions
charge, upheld by the TADA court in
Mumbai, was that he conspired, aided and
abetted in the planting of 13 bombs across
Mumbai in 1993, which killed 257 and
injured 713. He is said to have worked in tandem with his brother, Tiger Memon, one of
the principal accused in the 1993 Bombay
blasts case, who, along with Dawood
Ibrahim, another key conspirator, are still
absconding. The court sentenced Yakub to
death in 2007. He is the only accused in the
case to be handed the death penalty.
The date of his execution was slotted for
July 30 when he approached the Supreme
Court for one last time.
RAMANS REVELATIONS
Under normal circumstances, Yakubs case
would not have attracted the public attention
it has or courted controversy. But it did

because of the publication of a column written by the late B Raman, who headed the
counter-terrorism division of the Research
and Analysis Wing (RAW), Indias external
intelligence agency, when Yakub Memon had
been persuaded to surrender in 1994. Raman
had penned his revelations in 2007 and submitted it to news portal rediff.com after the
TADA court had pronounced Yakubs death
sentence. However, Raman requested the
website to withhold publishing his views
since others might escape as a result of this
article if the higher court holds that the
entire case has been vitiated as a result of the
prosecution concealing a material fact from
the sentencing court. On July 24, rediff.com
printed Ramans column posthumously and
it kicked up a storm.
What comes through from Ramans column was a rumor that did the rounds among
crime reporters in Mumbai when the police
dramatically announced that Yakub had been
arrested at Old Delhi Railway Station in
January 1994. It was then said that the police
had worked out a deal and that Yakub was
promised a lenient punishment if he cooperated with the investigations. Ramans revelations more or less confirm this.
According to him, Yakub, who had fled
with other members of the Memon family

There is no
infirmity in the
procedure
followed by
TADA court in
issuing the
death warrants
on April 30 and
scheduling the
execution for
July 30.
The issuance of
death warrants
cannot be
faulted.
Supreme Court,
upholding death
sentence for Yakub
Memon on July 29

INDIA LEGAL August 15, 2015

17

LEAD/ Yakub Memon Case

Getty Images

reputation, confirms that the entire operation was coordinated by me. According to
him, the then prime minister, Narasimha
Rao, was also kept in the loop.
Crucially, Raman goes on to say: The
cooperation of Yakub with the investigating
agencies after he was picked up informally in
Kathmandu and his role in persuading some
other members of the family to come out of
Pakistan and surrender constitute, in my
view, a strong mitigating circumstance to be
taken into consideration while considering
whether the death penalty should be implemented. In short, Ramans plea was that
Yakub should have been given a lesser penalty than what he was awarded.

LIMITING THE OPTIONS


Indian agencies are
struggling to bring back
those wanted by law,
notably Dawood Ibrahim
(top) and former BCCI
chief Lalit Modi

18

August 15, 2015

to Pakistan at the insistence of his brother,


Tiger, was informally picked up in
Kathmandu driven across Nepal to a town
in Indian territory, flown to Delhi by an aircraft of the Aviation Research Centre (RAWs
air support wing) and formally arrested in
Old Delhi by the investigating authorities
and taken into custody for interrogation.
The RAW officer, who enjoys an impeccable

Memons case. Several eminent lawyers,


politicians, former judges, actors, writers and
human rights activists have signed a mercy
petition and submitted it to President
Pranab Mukherjee, urging him to stay
Yakubs execution.
From within the intelligence community,
several former officials vouch for Ramans
credibility and say that what he has revealed
must be taken seriously. AS Dulat, former
RAW chief and National Security Advisor in
the Vajpayee government, says: It is brave of
B Raman to speak the truth, I admire his
courage...I totally believe what Raman says, I
have no reason not to believe him.
Dulat should know. In his book Kashmir:
The Vajpayee Years, he talks of how he had
opened back channel negotiations with separatists in Kashmir, befriended those who had
taken to the gun and persuaded them to give
up militancy and return to the mainstream.
They were given concessions, sops and were
even rehabilitated. All this was done informally and was based purely on trust. The big
question that Ramans column raises is,
whether there was a breach of trust in Yakub
Memons case.
INFORMAL ROUTE
This becomes pertinent when we factor in
several cases where intelligence agencies may
be employing the informal route to bring
back those wanted by the law like, for

instance, Lalit Modi. In fact, every now and


then, one hears demands being raised to
bring back Dawood Ibrahim and other criminals lodged in Pakistan. Since extradition
from that country is virtually impossible, the
only options are to capture them through a
commando operation and run the risk of
triggering a war with our neighbor or to work
the back channels and make them surrender.
But after Yakubs experience, any informal
assurances made by negotiatorsincluding
that of a fair trialmay lack credibility.
Why, even those brought back from PoK
under a formal arrangement approved by the
government, are arrested on trumped-up
charges after they have crossed the border.
Manisha Sethis book, KafkalandPrejudice,
Law and Counter Terrorism, cites the illustrative example of 45-year-old Sayed Liyaqat
Shah. His ordeal began in March 2013 when
he was arrested at the Indo-Nepalese

SEEING REASON
(L-R) Justice Markandey Katju
calls Memons death sentence
a travesty of justice;
Former RAW chief AS Dulat
says theres no reason not to
believe B Ramans claims on
Rediff.com

Was the informal understanding between


Yakub Memon and B Raman at the time
of his surrender never communicated to
the investigating agencies? Or was this
conveniently kept under wraps?
Anil Shakya

MORAL SUPPORT
Ever since the column became public, politicians, from BJPs Shatrughan Sinha to
Congress Mani Shankar Aiyar and CPMs
Sitaram Yechury, have pleaded for a re-look
at Yakubs sentence. Former Supreme Court
judge HS Bedi has suggested that the court
should take suo moto cognizance of Ramans
column, while another former justice of the
apex court, Markandey Katju, has said that
there was gross travesty of justice in Yakub
INDIA LEGAL August 15, 2015

19

LEAD/ Yakub Memon Case

There was undue haste


Yakub Memon was hanged despite last-ditch efforts of civil rights lawyer Anand Grover and a few others.
Why was undue haste shown in carrying out the execution, he asks
BY Ajith Pillai

communicated to the convict till the


he final curtain came down
final execution. The mercy petition
on the Yakub Memon saga
that was rejected by the president
at 6.43 am on June 30 when
on July 29 was the first one sent
he was hanged at the Nagpur
by Yakub, although there was an
Central Prison and buried later in
earlier petition sent by his brother
the day at Chandanwadi burial
in 2013.
grounds at Marine Lines, South
Mumbai. But Yakubs story did not
end without a late night twist.
WRONG PERCEPTION
At 2.30 am on June 30, a
Grover says the 14-day window
Supreme Court (SC) bench was
should have been opened in all fairhastily constituted by the chief jusness to the convicted person. But
tice of India. It heard a petition
here there was undoubtedly a
filed by civil rights lawyers Anand
sense of undue haste, he says.
Grover, Prashant Bhushan and
The opportunity should have been
Nitya Ramakrishnan, who pleaded
given to challenge the presidents
for a stay on the execution. The
decision. What was the hurry all
hearing continued till 4.16 am
about? As it turned out, the haste
when the apex court upheld the
shown created a wrong perception
death warrant. For many, it was
among people about the manner in
virtually a chronicle of an execution
which the system finally acted. This
foretold once President Pranab
is a view endorsed by several rights
Mukherjee had rejected Yakubs
activists.
mercy petition late on July 29.
When asked if the government
Grover says he expected the
had lost a key witness in Yakub,
court to give Memon a 14-day
who could have testified against
reprieve. He told India Legal: We
Dawood Ibrahim and Tiger
did not file a mercy petition as was
Memonthe main accused in the
wrongly reported. I was arguing for
Bombay Blasts caseGrover says
a 14-day stay so that the lawyers
the question doesnt arise.
could challenge the decision of the
I dont think the main accused
president when he rejected Yakub
will ever come back to India to be
Anand Grover
Memons mercy petition. This is a
tried here, he says.
matter of right given by the
The lawyer is critical of the role
Supreme Court in the well-known Shatrughan Chauhan
played by sections of the media. He says: The language
case. But Yakub was, unfortunately, denied this right.
used against those who defended Yakub was truly conGrover was referring to the January 2014 SC judgement
demnable. People like me were accused of protecting terrorby the then chief justice of India, P Sathasivam, in which he
ists or fighting the case just for the money. The lynch mob
had laid down guidelines for safeguarding the interests of
mentality was promoted by press reports and by the TV
death row convicts. The court had prescribed a 14-day
channels. One must hold the media responsible for fuelling
stayfrom the time the rejection of the mercy petition was
this mentality.

The media accused


people like me of
protecting terrorists or
fighting the case just for
the money. The lynch mob
mentality was promoted
by press reports and by
the TV channels.

20

August 15, 2015

border and charged with plotting attacks on


targets in Delhi during the Holi festival.
Shah was accompanied by his wife and
daughter and was returning to India from
PoK under the Rehabilitation and Surrender
Policy of the J&K government, instituted
three years ago. Under it, Indian citizens who
had turned to militancy and had crossed the
LoC could return to Kashmir once they
declared their intent to lay down arms and
return home.
Those opting to surrender and return are
subjected to detailed checks by RAW, IB and
the J&K police before their names are
cleared. Shah was given the green signal after
several months of scrutiny. But despite that,
he was arrested by the Special Force of the
Delhi police at the Sannauli check post, an
entry point on the Indo-Nepal border. It was
alleged that he was on the way to Delhi to
pick up guns, ammunition, including hand
grenades, and maps (indicating his targets)
from a guest house in Old Delhi. The police
charge was that he was being directed by his
handler in Pakistan, who was coordinating
the entire operation.
After the National Investigating Agency
(NIA), which looks at terrorism-related
cases, took over the investigation, it concluded that the police charge had no substance
and had been cooked up. The guns and
ammunitions were planted in the guest
house by a police informer who was absconding. Shah was declared innocent in January
2015, almost two years after his arrest.
NOT COMMUNICATED?
To come back to the Yakub Memon case, there are several imponderables. Was the informal understanding arrived at between him
and Raman at the time of his surrender never
communicated to the investigating agencies
which took charge of him after he was
arrested in Delhi? Or was this conveniently
kept under wraps? Ramans column suggests
that the prosecution may have done so. To
quote: In their eagerness to obtain the death
penalty, the fact that there were mitigating
circumstances do not appear to have been
highlighted.
Justice PD Kode of the Mumbai TADA
court, who pronounced Yakubs death sen-

As the events unfolded


Yakub Memon is the third son of Abdul Razak and Hanifa. He is the
younger brother of Tiger Memon, the mastermind of the 1993 serial
blasts, which killed 257 people and injured more than 700 in Mumbai.
Heres a chronology of events leading to his hanging:
1994: August 5
Yakub arrested in
Kathmandu by Nepal
police
2006: September 12
Four members of the
Memon family held guilty
by TADA court. The
court acquits three,
sentences 12 to death
and gives life term to 20
2007: July 27
TADA court pronounces
death sentence for
Yakub
2011: November 1
SC starts hearing
appeals from convicts,
including Yakub, as well
as the government
2013: March 21
SC upholds death
sentence of Yakub and
commutes death
sentences of 10 convicts
to life imprisonment
2014: May 21
President rejects mercy
plea filed by Yakubs
brother

2015: April 9
SC nixes the review petition of Yakub
2015: April 29
Special court in Mumbai
fixes July 30 as execution day
2015: July 21
SC rejects Yakubs
curative petition. Yakub
sends his mercy appeal
to the governor
2015: July 23-29
Yakub moves SC seeking stay of execution.
Two-judge bench split,
refers it to CJI for consulting a larger bench,
which dismisses plea.
2015: July 29-30
Yakub files a fresh
mercy petition before
president and Maharashtra governor.
Governor rejects petition. President takes
close look at case,
seeks opinion of legal
and constitutional
experts. Finally, goes by
advice of home ministry
and rejects it

2015: July 30
Lawyers knock CJI HL
Dattus doors in the
middle of the night, convince him that the matter
needed one last hearing
2015: June 30
(3.16 am-4.16 am)
In one of the rare hearings in the apex courts
history, a three-judge SC
bench headed by
Justice Dipak Mishra
meets again in SC.
Yakubs lawyers plead
that he could not be
hanged at least
for 14 days after his
mercy plea was rejected
by the president, as
per SC guidelines. But
the bench stands by its
earlier judgment and
rejects the petition
2015: July 30
(6.43 am):
Memon hanged

tence, says that he was never informed of any


so-called surrender or any agreement
arrived at. This brings up the other question
why did the defense lawyers refrain from
bringing up this aspect in court? Some legal
experts point out that they may not have
because there was no evidence to prove that
anything was agreed upon.
Does Ramans posthumously published
column constitute any evidence? Perhaps it
doesnt, but it provides proof, in a manner of
speaking, of a certain factor that mysteriously didnt figure in the quantum of punishment that Yakub Memon was given. IL
INDIA LEGAL August 15, 2015

21

LEAD/ Witness Protection

In the Asaram Bapu case, nine witnesses have


been reportedly attacked by his men and three
key witnesses killed. He is the main accused in
a rape case and now lodged in Jodhpur jail.

UNI

Eliminating
Witnesses
MYSTERY DEATHS
(Clockwise from top) Anshul
Sachan, Pramod Sharma,
Akshay Singh and Namrata
Damor have lost their lives
in the Vyapam scam

22

August 15, 2015

HE multi-layered and shocking Vyapam scam in


MPin which over 40 witnesses have died so far
under mysterious circumstanceshas once again
brought into focus the vulnerability of those testifying before the law.
More often, extreme coercion (including
death threats) and financial persuasion are
used against witnesses to make them retract
or alter statements made to the police.
Worse, if seen as obdurate or expendable,
they are simply bumped off and spared the
trouble of appearing in court. The people
who come forward to testify are often targeted by the accused, who are economically and
politically powerful, and very few manage to
withstand the pressures put on them.
Unfortunately, providing adequate protection and ensuring the safety of those who
have to depose in court has never been given
the priority it deserves. In fact, many jurists
admit this is a serious blotch in our criminal
justice system.

Those who testify against the powerful need to be


protected. But can this be done in the absence of a
formal protection program backed by a law?
By Ajith Pillai

Several high-profile cases have had their


share of hostile witnesses. The Jessica Lal
murder, the Salman Khan hit-and-run case,
the acquittal of Varun Gandhi for his hate
speech in 2009 and the Nitish Katara murder trial are just a few examples. At another
level, you have self-styled godman Asaram
Bapu, who is the main accused in a rape case
and currently lodged in Jodhpur jail. Nine
witnesses have been reportedly attacked by
his men and three key witnesses killed.
Those who deal closely with the legal system say that the targeting of witnesses and
buying their silence is a problem
that needs to be addressed in an
urgent manner.
Indias legal bodies have
always been aware of the problem. Periodic law commission
reports since the 1950s have
emphasised the need to protect
witnesses. The National Police
Commission has underlined this
fact. And the 2003 report of the
committee headed by Justice VS
Malimath, which addressed
reforms in the criminal justice
system, concluded that when it
came to depositions in court, the
major problem is about the safety of witnesses and their family
members who face danger at different stages. They are often

threatened and the seriousness of the threat


depends upon the type of case and the background of the accused and his family. The
committee recommended that while many
countries in the world have enacted laws for
witnesses protection, there is no such law in
India. The time has come for a comprehensive law being enacted for protection of the
witness and members of his family.
Judges of the Supreme Court and high
courts have also pushed for better protection
of witnesses. Justice Arijit Pasayat, who was
part of the apex court bench that delivered
the judgement in the Zahira Shaikh vs State
of Gujarat case in April 2004, touches upon
the urgent need to have a witness protection
programme. One that attracted much attention pertains to the Best Bakery case in which
the establishment run by the Shaikh family
in Vadodra was torched by a mob during the
2002 Gujarat riots. Fourteen people died in
the carnage. However, those accused were
acquitted by a trial court after witnesses,
including Zahira, turned hostile. She later

CONCURRING VIEW
(L-R) Former Supreme
Court judge Justice Arijit
Pasayat and former chief
justice of India VN
Khare want a witness
protection program

INDIA LEGAL August 15, 2015

23

LEAD/ Witness Protection

Several high-profile cases, such as the Salman


Khan hit-and-run case, the Jessica Lall murder
and the Nitish Katara murder trial, have had their
share of hostile witnesses.
filed affidavits alleging that she was forced to
retract under coercion.

asayats observations in this case are


noteworthy: If the witness himself is
incapacitated from acting as eyes and
ears of justice, the trial gets putrefied and
paralysed, and it no longer can constitute a
fair trial. Time has become ripe to act on
account of numerous experiences faced by
Courts of witnesses turning hostile, either
due to threats, coercion, lures and monetary
considerations at the instance of those in
power, their henchmen and hirelings...The
State has a definite role to play in protecting
the witnesses, to start with at least in sensitive cases involving those in power, who have
political patronage and could wield muscle
and money power, to avert trials getting
tainted and derailed and truth becoming
a casualty.
Those were indeed strong words. But
lawyers point out that without a legal framework in place, providing protection to witnesses is the exception rather than the rule.

24

August 15, 2015

According to rights activist and


lawyer Vrinda Grover, as things
stand, witnesses are seen as people who can be manipulated to
gain easy acquittal for the
accused. She cites the 2013
Muzzafarnagar riots cases. The
open talk in the bar among
lawyers is about how cases will be
dropped once the witnesses are
persuaded or compromised to
withdraw their testimonies. It
almost seems as if the accused
and their lawyers are waiting for
witnesses to turn hostile.
According to her, even when a
request for protection is submitted, it is often rejected since no
proof can be put forward to substantiate the apprehensions of a witness. The
power differential, she says, between the
accused and the person deposing is a crucial
aspect which is never factored in. When a
powerful person is the accused, an ordinary
citizen who witnessed a crime becomes vulnerable to various pressures and threats.
How can one offer proof of coercion? It will
be one persons word.
True, a threat says another lawyer, is not
conveyed as a signed document admissible in
court as evidence.
That said, everyone is agreed that providing protection is vital, but does the police
have the infrastructure to ensure cover to
every vulnerable witness? AA Khan former
IG police, Maharashtra, who famously headed the Anti-Terrorist Squad of the state in the
1990s says the force simply doesnt have the
resources. Even if protection is provided, all
you get are two constables. There is no concept of looking after the witnesses and rehabilitating them as they do in the US in very
sensitive cases. A new law must not only be
enacted but there must be a dedicated force
under a marshal to handle witness security. It
must be a force that reports directly to the
judiciary and should not be under the police.
That is the only way out. He feels that only
the creation of such a judicial arm will be
credible and it should be independent
enough of the police, which more often than
not, is the prosecuting agency.

Under English law, influencing or threatening a witness before or after evidence is


given, amounts to contempt of court. The
legal system also protects those helping with
the investigation of a crime.
In the US, the law provides for relocation
and other protection of a witness or a potential witness deposing in a case involving a
serious offence or organized crime. The
attorney-general decides on whether a person testifying requires protection from bodily
injury and to assure his or her health, safety
and welfare. In a large number of cases, witnesses have been protected, relocated and
sometimes, even given new identities. The
program assists in providing housing, medical care, job training and assistance in
obtaining employment and subsistence funding until the witness becomes self-sufficient.

everal jurists in India have been recommending a similar witness safety


program in India. Former chief Justice
of India VN Khare has been calling for
reforming the criminal justice system and
protecting witnesses. He told India Legal: I
have been stressing the need for witness protection since 2004 but unfortunately nothing
has been donenothing whatsoever.
In a signed article in a leading newspaper
in 2006, he reiterated that like in the developed countries, in at least some sensitive
cases, witnesses should be provided protection. This is particularly desirable
in India because of long pending
trials in the courts. Under protection, the witness will not be fearful.
It will be difficult to lure him or her
by money and other allurements.
In 2013, the Delhi government
submitted a draft of the Delhi
Witness Protection Scheme to the
high court. This was in response to
a court order that such a scheme be
put in place following witnesses
turning hostile in the Jessica Lall
and Nitish Katara murder cases.
The draft has to be approved by the
state cabinet and the assembly. The
Kejriwal government has agreed in
principle to grant the necessary
approval, notify the scheme and get

the nod from the legislature.


Under the proposed scheme, witnesses
can give their testimony before a judge or an
investigating agency in camera without fear
of being coerced or influenced. The threat
perception analysis of the witness will be
conducted by an additional commissioner of
police and two senior officers. Their report
will determine the level of security to be provided. Personal security cover will be
arranged and their homes kept under 24x7
surveillance. A special cell of the police is to
be set up for protection of witnesses.
According to lawyers, one of the key reasons why witnesses are susceptible to being
influenced is the slow disposal of cases. The
time taken, from recording of the witnesses
statement to the eventual trial, could be

FAVOURING
THE GUILTY
(Above and below) The
star witness in the Best
Bakery case, Zahira
Sheikh, turned hostile
leading to acquital of
the accused

INDIA LEGAL August 15, 2015

25

LEAD/ Witness Protection

WAKE-UP CALL
(L-R) Nitish Katara and
Jessica Lall cases forced
the Delhi government to
pitch for a witness
protection scheme

The open talk


among lawyers
is how cases
will be dropped
once the
witnesses are
persuaded or
compromised
to withdraw
testimonies. It
seems as if the
accused and
their lawyers
are waiting for
witnesses to
turn hostile.
Vrinda Grover,
activist and lawyer

26

August 15, 2015

several years, making it easy for vested interests to persuade the witness to back off.
According to one lawyer, the entire business
of coming to court becomes long-drawn and
the witness becomes tired of this interfering
with his normal life.
Some police officials believe a system
must be evolved by which the statement of
the witness is secured and cross-examination is completed within reasonable time
after the statement is recorded.

he
Fourth
National
Police
Commission report touches upon the
trauma of a witness by quoting an
input sent to it by a senior district and sessions judge: A prisoner suffers from some
act or omission but a witness suffers for no
fault of his own. All his troubles arise because
he is unfortunate enough to be on the spot
when the crime is being committed and at
the same time foolish enough to remain
there till the arrival of the police.
Whats worse is that witnesses are not
even suitably compensated for the trouble
they take to obey court summons. Grover
says that the procedure for claiming even
travel allowance is cumbersome. The concept of paying for the travel of the witness
does not exist among prosecutors or the
police. It is presumed that those coming to
court will fend for themselves or will be
brought by the police or vested interests.
Former CBI director Joginder Singh told
India Legal that the treatment meted out to
witnesses is pathetic and a new law is

required to protect those who agree to testify.


If you ask me, many people would think that
it is foolish to become a witness. You are not
only treated shabbily and summoned to
court and asked to wait all day to be told that
the case will not be heard but you may also
have to face threats from the goons of the
person you are testifying against.
But senior lawyer RK Anand says a new
law to protect witnesses is not the answer.
More than a law, what is required is to bring
in modern investigation practices that are
not so reliant on witnesses. This would mean
better collection of material evidence by the
police from the crime scene. It would mean
employing the services of capable and reliable forensic experts. We have to modernise
the way we investigate cases.
Anand says this is the trend one finds in
the West and since evidence is gathered
meticulously, there is no need to examine
and cross-examine witnesses and cases are
thus disposed off in no time.
That suggestion would certainly lessen
the load on the courts. But the consensus is
that a totally witness-free scenario is unlikelyit has not even been achieved in the
West. Therefore, when witnesses are involved, it would be best to insulate them from
outside pressure that prompts them to turn
hostile. In sensitive cases like communal
riots or acts of terrorism, witness protection,
many feel, has to be formalized and not taken
up in an arbitrary case-by-case manner.
Today, it is often done to suit the convenience
of the police and their political masters. IL

FOCUS/ Defamation

Watch your

WORDS!
Politicians and journos have often
been at the receiving end of
defamation laws. A case in the
Supreme Court hopes to limit the
potential of this legal weapon, which can
be used to curb free speech
By Venkatasubramanian V

HE constitution guarantees freedom of speech and


expression to every citizen.
But seeking its full potential involves facing challenges of various kinds,
some within the constitution itself. Defamation is one of the grounds
which justifies restricting this freedom.
By making defamation an offense, the law
aimed to protect the right to reputation. But
whether or not particular words are defamatory is a question of fact, not law.
Experts suggest that a statement must be
read as a whole and in its particular context
to test its defamatory character. But trial
courts, most often, were swayed by the claims
of plaintiffs that their reputation suffered,
and invoked Section 499 of the IPC in order
to harass the defendants.
A case currently being heard by the Supreme Court seeks to limit the potential of

28

August 15, 2015

defamation. The lead petitioner in the case is


BJP leader and former union minister
Subramanian Swamy.
He has been waiting for this historic
opportunity so that he can test the constitutionality of legal provisions making defamation a criminal offence punishable with
imprisonmentas enshrined in Sections 499
and 500for more than two decades.
To Swamy, each such opportunity unfolded when those complaining of his allegedly
defamatory remarks dragged him to the
courts, invoking the punitive power of these
provisions. But they had always backed out
or made peace with him in order to avoid the
extreme possibility of the courts striking
down these draconian provisions.
All these changed, however, with Swamy
filing a petition in the Supreme Court last
year, challenging the constitutionality of
these provisions. It is to his credit that his
lead petition is now joined by 24 other petitioners of various political hues, including
Congress vice-president Rahul Gandhi, Delhi
CM Arvind Kejriwal and journalists.
The case is being heard by a two-member
bench of Justices Dipak Misra and Prafulla C
Pant. It is being assisted by two courtappointed amicus curiae, senior advocates K
Parasaran and T Andhyarujina.
Each petitioner in this case is prompted
to approach the court, praying relief from
either an existing or potential bully who has
used or is likely to rely on these legal provisions to curb free speech. That their tormentors are active in politics and public life
shows how fragile Indian democracy has
been reduced to because of these provisions.
The current spate of challenges to the
defamation provisions has been prompted by
complaints of defamation launched against
Swamy, Rahul Gandhi and Arvind Kejriwal.
They were filed by Tamil Nadu CM Jayalalithaa, an RSS worker and union minister
Nitin Gadkari, respectively.
However, the legal provisions do factor in
exceptions to avoid punishing those who may
not have actually intended to de-fame or distort facts. Section 499, for instance, targets
only those making or publishing any imputation with an intention to harm or with the
knowledge that such imputation will harm

Illustration: Anthony Lawrence

the reputation of the other person. Section


500 seeks to punish the defamer with a simple imprisonment for a term which may
extend to two years or with a fine or both.

rafted in 1860, Section 499 IPC carries 10 exceptions which, at least on


paper, mitigate its rigor. But the
exceptions are not apparent to the court
immediately; therefore, the defendant is
asked by it to claim exceptions during the
trial, leaving him with no option but to suffer
the process as a punishment.
So what are the exceptions?
The first one makes it clear that it is not
defamation to impute anything which is true
concerning any person if it be for the public
good, and that whether or not it is for the
public good is a question of fact.
The second exception says that it is not
defamation to express in good faith any opinion whatever respecting the conduct of a

public servant in the discharge of his public


functions, or respecting his character, so far
as his character appears in that conduct, and
no further.
The third exception protects expression in
good faith any opinion about the conduct of
any person touching any public question.
A journalist has no special status under
defamation laws in India. Although the press
enjoys freedom of speech and expression
under Article 19(1)(a) of the constitution,
defamation is a ground for a reasonable
restriction under Article 19(2).
In March this year, the Bombay High
Court dismissed Rahul Gandhis petition to
quash a criminal defamation case filed
against him in 2014 by Rajesh Kunte, an RSS
activist. Rahul Gandhi had made some
remarks in an election speech regarding the
involvement of RSS members in Mahatma
Gandhis assassination, in Bhiwandi, near
Thane, in March 2014. Kunte alleged that

The media
enjoys freedom
of speech and
expression
under the
constitution. But
a journalist has
no special
status under
defamation laws
in India.

INDIA LEGAL August 15, 2015

29

FOCUS/ Defamation

BJP leader
Subramanian
Swamy (right)
challenged the
constitutionality of
legal provisions
making defamation
a criminal offense.
He is now joined
by 24 others,
including Rahul
Gandhi and
Arvind Kejriwal.
NO RIGHT
TO CRITICIZE
Swamy contends that
critics are turned into
criminals under the
current defamation laws

Photos: UNI

his statement harmed the reputation of


the RSS.
Rahul Gandhis lawyers told the high
court that he did not intend to harm the reputation of the RSS. They argued that since
Gandhis assassination was in the public
domain, and if Rahul Gandhi made a statement on that question, it would be covered
by the third exception of Section 499 IPC.
The Supreme Court granted a stay on the
defamation proceedings against Gandhi.

he UN Human Rights Committee


(UNHRC), which administers the
International Covenant for Civil and
Political Rights (ICCPR), has stated that
defamation laws must be crafted with care to
ensure that they do not, in practice, stifle
freedom of expression.
It has suggested that even when defamation is handled as a civil matter, as it should
be, civil penalties must not block freedom of
expression and be designed to restore the
reputation harmed.
A consultation with experts organized by
the Law Commission of India last year revealed that the penalty of imprisonment up to
two years prescribed in Section 500 is clearly
disproportionate. Criminalizing criticism in
this disproportionate fashion has a chilling
effect on speech, the participants said.
In the ongoing case, the Supreme Court
has observed that political debates may not

30

August 15, 2015

come under the definition of criminal offence


of defamation.
In their submissions before the Bench,
both Swamy and Rahul Gandhi pointed out
that truth is not a complete defence in criminal defamation. This is at odds with the
national motto of Satyamev Jayate. Truth is
always for the public good, but the accused
who has spoken the truth is subjected to harassment. This includes summons, obtaining
bail or otherwise suffering arrest or detention, attending all hearings of the case,
engaging a lawyer involving considerable
expenditure and being made to wait for the
trial to proceed to the stage of defence evidence. In other words, even if the defendant
is innocent, the process itself will turn out to
be a punishment. And if acquitted after proof
of truth, there is no compensation. This is
wholly irrational, unjust, unfair and arbitrary, they told the Bench.
PP Rao, counsel for Rahul Gandhi, told
the Bench that Section 499 IPC, ex-facie
inhibits free speech and is a serious restriction on the fundamental right conferred by
Article 19(1)(a).
A restriction which excessively invades
the right or goes beyond the requirements of
public interest cannot be regarded as reasonable restriction and would be arbitrary, he
told the Bench.
Swamy, who argued the case himself, told
the Bench that by criminal prosecution, the

real danger is critics are turned into criminals and this will chill robust public debate
due to fear of arrest and the social odium
from criminal prosecution. If a law impacts
in this way for lack of access to adequate evidence that is fit for a court, then it erodes
Article 19(1)(a) unreasonably. Section 499,
by requiring good faith in criticism of public
officials, diluted Article 19(1)(a) unreasonably, he explained.

s India has ratified the ICCPR, it is


obligated to comply with Article 19
(of ICCPR) and Resolutions of the
UNHCR to abolish criminalization of defamation, and thus delete Sections 499 and
500 of the IPC, he further submitted.
Along with these sections, Section 199(2)
of the CrPC is also under challenge. It
empowers the Sessions Court to take cognizance of an offence of defamation against a
public servant.
Specifically, Swamy raised two contentions before the court.
One, Sections 499 and 500 IPC travel
beyond the restriction clause under Article
19(2) of the constitution, for that really constricts the freedom of speech beyond reasonable limit.
Second, the very purpose of Article 19(2),
as would be evident from the debate in the
provisional parliament in 1951, which inserted it in the constitution through the First

Amendment, was not meant


to put such restrictions.
Therefore, Swamy said
such an enormous restriction
cannot be thought of under Article 19(2) to
support the constitutionality of the provisions. Further, it will violate the concept of
the rule of law, he stated.
The central government, however,
defended the draconian provisions on the
ground of necessity. The government told the
court that Article 19(2) itself imposes the
restriction and, therefore, the submissions of
Swamy are unsustainable.
The government, thus, relied on the word
defamation being there in Article 19(2) and
it being there in Section 499 of the IPC,
which not only defines defamation but provides enormous safeguards by way of exceptions, to buttress its stand.
Andhyarujina told the court that in view
of the accent given under Article 19(1)(a) to
freedom of speech and expression and in
view of the development of free speech and
expression in the last few decades, the
debates in the provisional parliament may be
of some help.
The terms defamation or incitement
found in Article 19(2), he said, have to be
read disjunctively. Both are in separate compartments; incitement to an offence would
have criminal capability whereas defamation
as per Article 19(2), when properly understood and appreciated, would give rise to
civil liability.
K Parasaran, on the other hand, was of
the view that the first part of Article 19(2),

LEGAL BATTLE
(L-R) Both Rahul Gandhi
and Arvind Kejriwal are
fighting defamation
charges against them
in courts

INDIA LEGAL August 15, 2015

31

FOCUS/ Defamation

THE BATTLELINES
Jayalalithaa has gone
to court against
Subramanian Swamy
and Nitin Gadkari has
slapped a case against
Arvind Kejriwal

which says nothing in Article 19(1)(a) shall


affect the operation of any existing law,
would protect Sections 499 and 500 of IPC,
as they were part of the IPC when enacted in
1860. Article 19(2) was inserted in the constitution in 1951 through the First
Amendment.
Parasaran further submitted that freedom
of speech and expression possibly has to be
controlled so as not to include the concept of
defamation as defined under Section 499.
Reputation, that is, kirti, is the greatest
treasure of man and, therefore, no citizen has
a right to defame another; as the existing law
is protected, it is to be seen whether apart
from freedom of speech and expression,
other Articles in Part III of the constitution
are violated, he told the Bench.

espite Parasarans prima facie


defence of the draconian provisions,
the court may have to find an answer
to the question whether they satisfy the test
of reasonableness, and whether they restrict
speech only to the extent necessary to achieve
their stated objectives.
If the provisions are found to be broadly
and vaguely worded, then the court may conclude that they have a chilling effect, which
could encourage self-censorhip.
In the landmark case of R Rajagopal vs
State of Tamil Nadu, (1994) the Supreme
Court has held that in cases involving
defamation of public officials, it has to be
shown that the speaker either knew it to be
false, or acted with reckless disregard to its

32

August 15, 2015

truth or falsity.
But the Rajagopal case, according to
observers, has led to an imbalance between
criminal and civil defamation. Criminal
defamation, it is pointed out, is more draconian than civil defamation, which was held
inconsistent with free speech.
Under Section 499, the accused must not
simply prove that his statement is truehe
must also prove that it was made in public
interest. As the speaker could not decide this
issue beforehand, it would lead to self-censorship, and chill even legitimate speech,
which was the precise concern that led the
court in the Rajagopal case to modify the civil
law of defamation, according to Gautam
Bhatia, a Supreme Court lawyer assisting one
of the petitioners in the case.
In many countries, criminal defamation
has either been struck down as unconstitutional or diluted with sufficient safeguards to
neutralize the chilling effect.
Criminal prosecution for defamation has
been abolished in the US, Britain, Singapore,
Sri Lanka, Maldives and most of Africa. The
UK decriminalized defamation in 2010 and
enacted Defamation Act, 2013, to strengthen
civil remedies.
The defamation regime in India has certain unique characteristics, not present in
other jurisdictions.
Therefore, the outcome of the case in the
Supreme Court will show how much the
Indian judiciary is willing to borrow from
other countries in order to strengthen its free
speech jurisprudence. IL

PROFILE/ Rohini Salian

I will fight,
I am a fighter
It is rare to find someone as gutsy and irrepressible as Rohini Salian,
Maharashtra special public prosecutor, who claims the NIA asked her to
go soft in the 2006 Malegaon case
By Shantanu Guha Ray
UNHOLY NEXUS
A Malegaon blast site,
where hardliners carried
out the explosion in 2006

OHINI Salian knows


she is in the hot seat,
literally. The Maharashtra special public
prosecutor, who alleged that the National
Investigation Agency
(NIA) had asked her to go soft in the 2006
Malegaon blast case, says she will stand firm
and seek Supreme Courts help if the situation turns worse.
I have immense faith in the judiciary,
says Salian, adding she could look like the
last woman standing on the deck but she
did give her statement a lot of thought. I
know the NIA has denied my statement, but
it means nothing to me, said Salian in an
exclusive interview to India Legal telephonically. After all, she is a criminal lawyer who
wouldnt make allegations without evidence.
OUTRAGEOUS OFFER
Salian says it is not important for the country, or for that matter, the media to know as
to who came from the NIA to make that outrageous offer to go soft in the case. But what
worries her is that if the NIA could get into
something like this, what hope is there for
victims from the organization.
She says that last year when the NIA

investigator met her, she played ball with


him and told him nothing. Instead, she waited for more evidence to land in her lap and
eventually made the sensational announcement. If I had talked right after the meeting,
it would have been disastrous. I would not
have been able to collect the evidence. But I
have managed it now, it is (the evidence) safe
with me and I would walk the last mile to
ensure justice for those wrongly framed.
I will fight, I am a fighter. A fighter
always wins, Salian says. She says she borrowed the lines from an advertisement campaign done by scriptwriter Javed Akhtar
some years ago.
What does Salian want from the NIA?
She wants discharge of the nine Muslims
who were arrested and charge-sheeted by the
Maharashtra Anti Terrorist Squad (ATS) and
the Central Bureau of Investigation (CBI) for
the Malegaon blast.
STANDING FIRM
Rohini Salian, special
public prosecutor,
Maharashtra

EMBARRASSMENT TO NDA
Her accusations are very serious and have
caused embarrassment to the NDA government as they cast a shadow over other

Salian wants discharge of the nine Muslims


arrested and charge-sheeted for the
Malegaon blast. Her accusations have
deeply embarrassed the NDA government.
Hindu terror cases handled by the NIA.
Besides the 2006 Malegaon blasts case, these
include the Samjhauta case, the Mecca
Masjid blast case in Hyderabad and Ajmer
Sharif blast, all in 2007, and the Modasa
blast in 2008.
Salian knows she has stirred a hornets
nest, accusing the all-powerful NIA. But she
is not bothered.
Salian said in the 2006 Malegaon case,
she wanted discharge of the nine arrested
because of specific reasons. Let me make it
clear that the court asked me to justify if
there were two sets of accused, both distinct
and with no connection between them. I simply asked the NIA to allow me to exercise the
powers given to the prosecutor (under Section 321 of the CrPC) to try and convince the
court that some error had crept in on the

Image courtesy: goo.gl/EB46ka

34

August 15, 2015

INDIA LEGAL August 15, 2015

35

PROFILE/ Rohini Salian

PEACE DERAILED
The Samjhauta Express
blast caused a big
setback to India-Pakistan
diplomatic efforts

If I had talked
right after the
meeting, it
would have
been disastrous.
I would not have
been able to
collect the
evidence. But I
have managed
it now, it is safe
with me.
Rohini Salian

part of one of the investigating agencies that


must be rectified by the court.
This was not all. I had suggested that
they give it to me in writing that I be allowed
to make a discharge application. I had not
promised anything, but told them I would try
my best.
But the NIA got upset, extremely upset
with me. Some of the officers in NIAI was
surprisedaccepted my demand and I was
happy. But then, everything was put on the
backburner and there was no response to my
suggestion. They just filed a charge-sheet
against four new accused. After that, I said I
dont want to appear in the matter, she said.
The NIA has not made a single statement
except denying Salians charges and has not
responded to repeated letters written by her.
CASE CONTINUES
In private conversations, NIA sources have
claimed that the case was one needing further investigation and was not a re-investigation, and that the initial probe conducted
by Maharashtra ATS and the CBI should not
be wiped out. We simply cannot discard the
previous charge-sheet as they have been
placed before the court. It is for the court to
decide who to discharge, sources said.
Meanwhile, the special NIA court in
Mumbai has issued notices to the NIA,

36

August 15, 2015

Maharashtra ATS and the CBI to adduce evidence regarding their charge-sheets, before
taking a call on how to push the case further.
But the situation has also turned grim.
Witnesses have turned hostile in two other
blast cases15 in the Ajmer Dargah case and
three in the Samjhauta Express case. In a
third case, the 2008 Modasa explosion, a closure report has been filed.
Salian says it important for everyone to
dissect the case she is fighting. It was on
September 8, 2006, that four bomb explosions rocked Malegaon, killing 31 and injuring 312. Nine Muslim youth were arrested by
the Maharashtra ATS for their alleged
involvement in the blasts.
On December 21, 2006, the ATS filed a
charge-sheet in the special MCOCA court
against the nine accused and four others
on the run.
MANY PROBES
Muslim groups across India raised a hue and
cry, alleging high-handedness by the Maharashtra ATS. Eventually, the CBI took over
the case in July 2007. In its initial investigation, the CBI backed the ATS stand and filed
a charge-sheet against the same accused on
February 11, 2010. Eventually, the case was
handed to the NIA on April 6, 2011.
What is important, claims Salian, is this:

Before the case was handed


over to the NIA, Swami
Aseemanand was said to have
made a confession in the
Mecca Masjid blast case that
accused Sunil Joshi had told
him that the Malegaon blasts
were actually the handiwork
of his boys.
In his statement, Aseemanand said a meeting was
held at the residence of
Bharat Rateshwar in Valsad
in June 2006, during which
he (Aseemanand) suggested
that Malegaon, where 86 per
cent of the population is
Muslim, may be chosen first

for a bomb blast.


Note this. You must understand what I
am saying, and where I am coming from,
explains Salian. During the NIA probe, all
nine accused retracted their confessions,
alleging these were secured under duress.
This, in itself, is a serious charge and flies in
the face of investigations done by both the
ATS and the CBI.
BAIL GRANTED
Salian continues. On May 22, 2013, the NIA
filed a supplementary charge-sheet against
four accusedSunil Joshi, Ramchandra

Kalsangra, Ramesh Venkat Mahalkar and


Sandeep Dangebefore the NIA special
court in Mumbai. Subsequently, the nine
Muslims who were accused and chargesheeted by the ATS and the CBI, moved court
for bail. It was granted without opposition
from the NIA.
And then, Salian says, she started getting
feelers from the NIA to go soft on the cases.
Salian protested, went public and is now
waiting for NIAs next move.
What makes her charges serious is that,
she says, she started getting feelers only after
the BJP-led NDA came to power last year. It
seemed to me someone wanted me to turn
the case upside down. I felt I must expose
this rot, says Salian.
But ever since she raised the issue, Salian
has been flooded with calls
and messages. The list
HATEMONGERS
includes Congress leaders,
(Above) Swami
lawyers, doctors, Muslim
Aseemanand, the
leaders, intellectuals, jouralleged
nalists and activists. She
mastermind of
has not responded.
the Malegaon
blast
Salian only remembers
how, in the last stages of the
Malegaon probe by the
NIA, the officers presented
to the judge an opinion
sheet along with the
charge-sheet. The opinion
sheet said the first lot was
wrongly arrested.
Salian was shocked, she
went through the entire
charge-sheet. It was false.
She knew someone was pushing untruth
against truth. And it was then that someone
from the NIA came calling, urging her to go
soft so that the Hindu terrorists could be
released on bail. Salian argued back and
made the NIA offer public.
In private conversations, she tells her
family members about her nationalist colors.
She tells them why 1947, the year of her birth,
is important for her, and those who believe in
an independent, united India. Salian calls
them un-influenceable. She does not mind
even if there is no word like that in the
dictionary. IL

TERROR INC.
Cases handled by NIA
 2006: Malegaon blasts
 2007: Samjhauta
Express blast case, Mecca
Masjid (Hyderabad) and
Ajmer Sharif blast
 2008: Modasa blast
Status of various
cases
 15 witnesses turn
hostile in Ajmer blast case
 3 witnesses turn hostile
in Samjhauta Express
case
 In Modasa case,
closure report filed
Malegaon case
 Took place on:

September 8, 2006
 Number of bomb
explosions: 4
 Number of killed: 31
 Number of injured: 312
 Those held:: 9 Muslims
 The date when Maharashtra ATS file chargesheet in special MCOCA
court: December 21,
2006
 Case handed to CBI on:
July 2007
 CBI files charge-sheet
against same accused on:
February 11, 2010
 Case handed over to
NIA on: April 6, 2011
 NIA files supplementary
charge-sheet against four
accused on: May 22,
2013

INDIA LEGAL August 15, 2015

37

PROBE/ RK Pachauri

Climate
Changes
in

TERI

As a new D-G takes over,


RK Pachauri seems to have been
delivered a new set of troubles.
All eyes are now on how the case
pans out when the hearing starts
By Ramesh Menon

SHOWN THE DOOR


(Above) RK Pachauri, who
has been removed as
Director-General of TERI

38

August 15, 2015

INALLY, the governing


council of The Energy and
Resources Institute (TERI)
acted. It removed its 74year-old director-general,
Dr RK Pachauri, as pressure mounted from a section of vocal employees and questions were
raised in the media about the propriety of letting him continue after a sexual harassment
charge was made against him by a 29-yearold female colleague in March this year.
The high-profile council has luminaries
such as Naina Lal Kidwai, country head,
HSBC Holdings; Kiran Mazumdar Shaw,
CMD, Biocon Ltd; and Deepak Parekh,
chairman, HDFC. They replaced Pachauri

with Dr Ajay Mathur, who had earlier been


with TERI and was D-G of the Bureau of
Energy Efficiency.
Employees of TERI have heaved a sigh of
relief with Mathur taking over. He is wellrespected within the organization and is
credited with ushering in a lot of changes in
the energy sector. He has also been active in
global discussions on climate change and was
part of Indias negotiating team setting up
the Green Climate Fund in South Korea.
Pachauri, who had been with the organization ever since it started 34 years ago, went
on leave when the case was filed in March. So
TERI employees were surprised when he
filed a petition asking that he be allowed
to resume work, arguing that not working

affected him monetarily. The Delhi High


Court then allowed him to enter all offices of
TERI, except the headquarters in Delhi and
its Gurgaon branch, where the victim had
been transferred.
Four months earlier, the court had restrained him from entering any of TERIs
offices till completion of the investigation.
The Delhi Police had also sought cancellation
of the anticipatory bail which Pachauri had
secured soon after the complaint was filed.
The police had claimed that he was being
evasive and was not cooperating. They had
also alleged that he was influencing witnesses. Pachauri had denied the allegations.
The victim had also approached the court,
seeking cancellation of his bail, on the grounds that free and fair investigation could not
be carried out if he was allowed to visit the
TERI offices.

ne of the first things that Pachauri


did after he rejoined was to get a
shuttle service started between
TERI headquarters and the Defence Colony
office where he had joined, so that staffers
could move to and fro.
Prashant Mendiratta, the complainants
lawyer, told India Legal: We found that
many who had complaints of a similar
nature against Pachauri were not ready to
come forward publicly because of fear that
he would return. That is why we said that let
him first prove that this is a false case and
then join work. When he joined the Defence
Colony office, I am told that women wrote to
the governing council that they did not feel
safe with him in the office.
When he did visit the office after the court
order, there was resentment. Many younger
employees got together and decided to voice
their protest to the council. They sent out
mails asking others to join them in the protest as the sexual abuse had happened in
their backyard. One of the employees, who
insisted on anonymity, said that it had
become extremely difficult to defend the
organizations stance outside the office. Some
of them went on protest leave, while some in
the senior management said that it was of no
consequence as there were 700 employees
and some going on leave did not matter.

INFUSING NEW ENERGY


Dr Ajay Mathur, the new
DG of TERI

After resuming work, Pachauri removed


acting director, Dr Leena Srivastava, and
appointed her as a Distinguished Fellow.
He even wrote to employees that this years
Eid was special for him as he had come back.
The complainant told India Legal: The
press release issued by TERI does not have
the slightest mention of my complaint and
the ICC (Internal Complaints Committee)
indictment. It does not say if the development on the new D-G was an action based on
my complaint. There were at least 10 days for
the board members to implement the ICC
recommendations before the ex-parte order
was obtained.
While Pachauri resigned as the chief of
the Intergovernmental Panel on Climate
Change, a UN body, soon after the police
complaint, he chose not to resign from TERI.
Former solicitor-general Indira Jaising asks:
Why are there two standardsone for an
international body and another for an Indian
one? Obviously, it was because internationally, sexual abuse at the workplace is treated
and punished with great seriousness.
Activist lawyers like Vrinda Grover had
pointed out that there could be a fair trial
only if he quit.
The ICC too emphasized that repeated

We found that
many who had
complaints of a
similar nature
against Pachauri
were not ready to
come forward
publicly because
of fear that he
would return....I
am told that
women wrote to
the governing
council that they
did not feel safe
with him in
the office.
Prashant Mendiratta,
complainants lawyer

INDIA LEGAL August 15, 2015

39

PROBE/ RK Pachauri

POLITICS/ BJP Vs RSS

Who Calls the Shots?

Though PM Modi is seen courting global capital, hes handicapped by


the economic philosophy of the RSS, which wants government policies
to be in sync with Indian culture. What is the way out of this tug of war?
By Sampad Patnaik

HE Modi government is
sending out contradictory signals with respect to
globalization. The prime
minister seems to be in
perpetual courtship with
global capital. His government is clear that global capital and
industry have a role to play in creating the
millions of jobs promised during the 2014
election campaign. Yet, Nirmala Sitharaman,
commerce and industry minister, confirmed
that the governments opposition to foreign
direct investment (FDI) in the branded retail
sector has not wavered.
Jagdish Bhagwati, an eloquent exponent
of the Modi government, has said he expects
the government to reverse its opposition to
FDI in branded retail. Bhagwati has said the
government will change track as soon as it
consolidates adequate outside support to
overlook the concerns of the petty bourgeoisie, a loyal constituency of the BJP, which
is opposed to FDI in retail.

Anil Shakya

TOUGH CALL
(L-R) Members of the
governing council Kiran
Mazumdar Shaw of
Biocon, Naina Lal Kidwai
of HSBC Holdings and
Deepak Parekh of HDFC

40

August 15, 2015

attempts by Pachauri to foster personal relationships with employees amounted to violation of the prevention of sexual harassment
policy. In its 33-page report released in May,
it recommended that disciplinary action be
taken against him and that he should compensate the victim for the torture she had
gone through. It noted that her health had
seriously deteriorated because of the consequent stress and trauma and she even had to
resort to counseling. The committee had
examined 30 witnesses who deposed for
Pachauri, apart from 19 who deposed for the
complainant.
Pachauri then approached the Industrial
Labor Tribunal, praying that the recommendations of the ICC be stayed as he had been
denied the principles of natural justice. It
was stayed, but a judgment on it is yet to be
given. The next hearing is in September.
The committee said that it was under
pressure from certain individuals within the
organization.
Though the complainant was transferred
to Gurgaon in May, she did not join as
Pachauri continued as D-G and work given
to her was different and not suited to the

qualifications she had. She has been on


unpaid leave ever since she lodged her
complaint.

hough Pachauri has lost his TERI job,


he continues to be the chancellor of
TERI University. Asks Jaising: What
message is this sending to young students?
Are we telling them that it is okay to tolerate
sexual abuse in the workplace?
When will the trial start is a question
many are asking. P Ramana Reddy, a former
TERI official who says he knew of others who
were also sexually abused by Pachauri in the
office, says: It is a pity that Indian laws have
loopholes to allow well-connected accused to
easily escape the law. This is what is happening with the Pachauri case. Reddys online
petition asking for Pachauris removal from
TERI on change.org had attracted over 400
signatures.
The complainant, whose father recently
died of heart attack, says that she would not
have had the courage to fight back had it not
been for her father. He had told her: Go
ahead and report the abuse. Being silent in a
crime is like being part of the crime. IL

REALPOLITIK
Modi has no
option but to
woo the West
despite
ideological
compulsions
UNI

FDI IN RETAIL
However, the issue may be more complicated
than a problem of trading one support group
for another. The case of FDI in retail is one
example of a larger trend. The Hindu nationalism movements economic philosophy
sometimes clashes with the economic policies of the ruling BJP government.
Philosophy reflects the core thoughts of
an organization, while policy refers to day-today directives. Philosophy, like strategy, is
more stable, while policies, like tactics, can
vary as per the exigency of the moment.
INDIA LEGAL August 15, 2015

41

POLITICS/ BJP Vs RSS

ON THE WAY?
(Right) It is a
matter of time
before big
retailers like
Walmart do
business in India
(Below) Many
traders, the
BJPs support
base, are
opposed to FDI
in retail

age its investments, over global capital.


Thirdly, while cultural capitalism advocates
the pursuit of wealth, it also promotes moderation of consumption.
A household could save more if it consumed less, so families should spend on
necessities, such as food, housing, clothing,
education, and not on luxuries like cinemas, restaurants and brands. Whenever a
BJP government at the center violates these
principles, there are tensions between the
government, the party and other affiliates of
the Hindu nationalist movement.

When in power, the BJP has had to make


compromises with international capitalism.
The party has allowed the entry of foreign
consumer goods, which bring foreign values, like commodity fetishism. In doing so,
the BJP has had to steer away from the economic philosophy of the Hindu nationalist
movement, which seeks embedding economic practices in cultural habits, or what may be
called cultural capitalism.
Cultural capitalism is marked by three
principles. It supports indigenous industry,
small-and-medium enterprises that produce
handicrafts, native food and native textiles.
Secondly, it prefers domestic savings to man-

42

August 15, 2015

STRONG NATION-STATE
The tensions began in the term of the first
national BJP government, under PM Atal
Bihari Vajpayee, which sometimes acted
against the principles of cultural capitalism
and embraced globalization for political reasons. As the BJP broadened its electoral base
in the late nineties, it started strongly identifying a loyal voter in the middle class. Many
of BJPs new voters, while not identifying
with all aspects of Hindutva, agreed with
BJPs vision of a strong nation-state. These
voters expected that a strong state had to be
a wealth-creating one, which built the infrastructure necessary for economic growth.
The party realized the need to demonstrate
support for globalization and global capital
because domestic savings were inadequate

for long-term investments.


The second factor that forced the BJPs
hand was the flight of its core upper-caste
voters into the private sector from the public sector. The BJP realized that there was
considerable upper-caste disenchantment,
after job reservations for backward castes in
the public sector were implemented by the
VP Singh government. Many among these
upper castes felt the private sector protected
their merit-based performance. Promoting private industry could, therefore, pay
high dividends among the partys natural
voters. But private industry demanded
access to global capital and the BJP felt
itself pushed towards globalization.
Thirdly, the upper-caste and middleclass migration to Western countries, especially the US, compelled BJP to accommodate globalization. These emigrants had not
only achieved economic success, but developed greater affinity for their Indian roots in
culturally-alien Western lands. The BJP
realized that a rejection of foreign-based,
multinational corporations (MNCs) in
which these Indians work, would make it
difficult to sustain the support of a wealthy
and well-connected diaspora.
Finally, the BJP also realized that it
could find much more acceptance within
the international community, which saw it
as partisan and divisive, if its government
was not hostile to MNCs based in the West.
However, the BJPs departure from the
canons of cultural capitalism led to tensions
with other Hindu nationalist affiliates. The
RSS understood that any BJP government
had to seem friendly to global businesses, in
order to be accepted by foreign governments. It did not object to, say, large-scale
arms acquisition to keep Western governments happy and strengthen the motherland. But the RSS is especially hostile to
lifestyle businesses, food chains and clothing retailers, as it feels Western goods are
likely to overwhelm Indian youth with
Western culture. This is one reason why the
BJP, while not averse to FDI, opposed it for
the branded retail sector.
In the current political landscape, Modi
has a majority in the Lok Sabha and a
demoralized opposition. Nevertheless, he

CONTRADICTORY
SIGNALS?
(Left) Commerce and
Industry Minister
Nirmala Sitharaman
confirms that the
center is still averse
to FDI
Photos:UNI

The RSS didnt mind large-scale arms


acquisition from Western countries, but it is
especially hostile to lifestyle businesses,
food chains and clothing retailers.
has to abide by the oversight mechanisms of
his ideological brethren. A pro-growth and
pro-jobs agenda implies greater dependence
on international capitalism. It is not easy to
court the US India Business Council while
snubbing one of its most powerful members,
Walmart.
The larger narrative in this paradox seems
to be a philosophical tension, between ideology and realpolitik, which has placed
guardians of Indian culture also in charge
of Indian capitalism. IL
The writer is an Oxford scholar
INDIA LEGAL August 15, 2015

43

ECONOMY/ Agriculture/Farmers Protest/Goa

NO
TEEING
OFF
HERE

Fact File
Total land area of Tiracol village:
13,84,000 sq m
Area occupied by the village/
residences: 3,15,000 sq m
Land purchased/acquired by
Leading Hotels: 12,18,000 sq m
Total project area of golf course
resort: 9.90,000 sq m
Estimated purchase price: `

44

August 15, 2015

The key bottlenecks are on the


banks of the Zuari river

33 cr

Planned golf green area:


5,62,536 sq m
188 standard and premium villas in:

FACING THE
HEAT

Mandrem
constituency

CM Laxmikant
Parsikar had
supported the
project earlier

3,31, 854 sq m
Permissible floor area ratio:
40,000 sq m

PANJIM
FIGHTING BACK

Villagers have put up


signboards of protest
at Tiracol

A `500-cr golf course resort in Goa has sparked a storm of protests.


Serious charges of fraud, malafides and illegal transfer of tenanted
agricultural land have plagued the project
By Pamela DMello in Panjim
T'S been a summer of discontent
in Goa as three investment projects have run into rough weather.
While two are for Marinas, the
third is for Tiracol's `500-cr golf
course resort, sought to be developed by Shiv Kumar Jatia Groups
Leading Hotels.
As a minister, some local BJP legislators
and village panchayats joined dissenting
voices of fishermen and clam harvesters in
the bay areas of the two proposed Marinas (a
specially designed harbour with moorings for
pleasure yachts and small boats) in Sancoale
and Nauxim villages, both on the banks of

CRISIS POINTS

the Zuari river, Chief Minister Laxmikant


Parsekar was forced to speedily pull back the
sails on the projects in June. Both were in the
preliminary stages of investment and had
received an okay from the newly set-up State
Investment Promotion Board. Both would
have required a long list of permits, including
the mandatory Environmental Impact
Assessment (EIA), environment clearances
from coastal management authorities, biodiversity boards and Coastal Regulation Zone
(CRZ), from the Ministry of Environment
and Forests (MoEF) and Climate Change.
However, Leading Hotels golf course
resort project is another matter altogether.

Zuari river

Nauxim villages

Sancoale

GOA

The company had been pursuing land purchase from 2006-2011, and had received as
many as 18 permits from various government
bodies, including the CRZ clearance in
December 2014, when a series of major legal
challenges filed by villagers and tenants hit
the project.
SERIOUS CHARGES
Two cases are before the Bombay High
Courts Goa Bench and one is being argued
before the National Green Tribunal. Two of
the cases make serious charges of fraud and
malafides in the manner in which the government and administrative bodies issued
permissions to the company.
More seriously, the petition before the
Bombay High Court wants the sale deed
quashed as it resulted in the transfer and
conversion of allegedly tenanted agricultural
land. This is against the provisions of the Goa
Daman and Diu Agricultural Tenancy Act,
1964; the Goa Land Use Act, 1991, and the

Fifth Amendment Act (Land to the Tiller


Act), 1976. The legislations prevent the alienation of agricultural land if it is tenanted.
Where tenants do not wish to cultivate, the
lands are supposed to be reverted back to the
government, but in reality it is never so,
mainly because of the large vote share these
communities command. The High Court
matter is being argued currently for admission before the court. The court has asked
INDIA LEGAL August 15, 2015

45

ECONOMY/ Agriculture/Farmers Protest/Goa

media that his hands were tied as the government had already accepted money to have
the land converted.
Incidentally, this project is located in
Parsekars Mandrem constituency. He had
openly supported the project and welcomed
the employment it would bring to the region.
He went on to say that five other major hotel
projects would come up in his northern
Pernem taluk, site for a contentious `3,000
crore greenfield second airport at Mopa. As
land values escalate in the area, landowners,
in particular feudal families that were given
thousands of acres in perpetual lease by erstwhile Portuguese colonialists, have reason to
celebrate. They see in it an opportunity to
monetize lands locked in tenancy claims.
Tiracol is one such instance. Almost the
entire village was granted in perpetual lease
in 1869 to Naguesh Shet Khalap after the
Portuguese got the scenic promontory from
the Raja of Sawantwadi. On one strategic
outcrop sits the historic Tiracol Fort (converted to a hotel by Goa Tourism). The
remainder supports cashew and paddy cultivation, both somewhat diminished, as the 50
Christian families there set up restaurants,
bars and rooms for tourists.
COMMERICIAL
INTERESTS
The historical
Tiracol Fort has
been converted to
a hotel by Goa
Tourism

Goa Foundation to implead the village panchayat and the original landlords in the case.
Matters came to a head in May 2015,
when Leading Hotels commenced work on
the land and brought in 50 bouncers, triggering a face-off that inflamed passions. Goa is
uber sensitive to the speedy loss of agricultural, forest and other land to moneyed people from major metros.
Under media focus, Tiracols golf course
project has now become a metaphor for
everything that has gone wrong with Goas
failed statehood. Like: loss of land, eviction
of local inhabitants, mega projects, including
an international luxury hotel chain and corralling of village residences into down-market and gated spaces.
HANDS TIED
These protests have spiraled out of control.
On June 2, hundreds of people drove to Goas
northernmost border village in solidarity
with the 50 tenant families residing there. It
put Parsekar on the back foot. But he told

46

August 15, 2015

FRAUDULENT SALES?
Trouble began when the landowner (successors of Naguesh Shet Khalap) sold a large
portion of land to Magus Estates and Hotels
in 2006, followed by more sales in 2007,
2008 and 2010. A green NGO, Goa
Foundation, and the Tiracol St Anthonys
Mundkar and Tenants Association swung
into action. In their petition, they elaborated
on the modus operandi used to alienate tenanted land. This involved tenants declaring
their claims as erroneous (negative declarations), facilitating a sale from the original
landowner to the third party buyer.
Arguing that since further permits were
based on this alleged fraud, Goa Foundation
sought quashing of the permissions which
the company had acquired, including okays
to convert the land from agricultural use to
eco tourism. It also sought a CBI inquiry into
the transfer of all Tiracol land after 2006 and
into all transactions involving alienation/sale
of tenanted, agricultural land in the state in

QUESTIONABLE LAND
TRANSFER
Goa Foundation has
sought a CBI inquiry into
the transfer of Tiracol land

the past five years.


Leading Hotels has denied malafides and
accused tenant organizations of instigating
the legal battle. The company says it is in possession of all its lands, that they are non-tenanted, that agricultural activity had long
ceased in the area and that tenancy claims
are a matter of dispute before lower courts.
We believe that the Tenancy/Other rights
claims are not substantiated with appropriate evidence and the same is being disputed
at the respective courts/tribunals, company
spokesman Gerson Rebelo told India Legal.
One tenant had personally claimed tenancy in the other rights category for an area
close to 1,00,000 sq mts, all or most of
which is barren lateritic rock abutting the
sea, he said. The company argues that tenancy claims are personal claims and a public litigation is unfounded, filed to influence the
adjudication of their private claims.
Goa Foundation asserts that public interest lies in the large-scale diversion of agricultural tenanted land in the state. If this

process is not arrested, then all tenanted


agricultural land in Goa will meet a similar
fate. That is why we have asked for a CBI
inquiry into all such transactions, says foundation secretary Claude Alvares.
As the agitation gathered steam, with
support from the church-backed Centre for
Responsible Tourism, Parsekar blamed the
tenants for selling their rights in the first
place. He suggested that differences in the
settlement payouts had soured the deal, leading to opposition from some tenants.
Tenants like Elvis Pereira of the Tiracol
Rakhon Manch (Save Tiracol Forum) admit
the villagers were divided. Some, who had
migrated to cities, signed the affidavit, memorandum of understanding and an irrevocable power of attorney and took the money
proffered without understanding the consequences of their action, he says. A dozen families still living in the village refused to sign
away their rights. I will never give up. My
mother did not sign away her rights and neither will I, says Pereira, who is fighting a

If this process
(of large-scale
diversion of
agricultural
tenanted land) is
not arrested, then
all tenanted
agricultural land in
Goa will meet a
similar fate.
Claude Alvares,
secretary,
Goa Foundation

INDIA LEGAL August 15, 2015

47

ECONOMY/ Agriculture/Farmers Protest/Goa

ECONOMY/ Agriculture/ Farmers Protest/ Gujarat

A third petition by the Foundation questions the environmental soundness of a ` 77crore long span bridge being built by a government agency in the no-development
zone of a highly protected CRZ beach.
The National Green Tribunal has stayed pier
work on both sides of the river until an expert
committee examines the ecological
issues raised.
The Congress and the BJP are locked in a
war of words over the project. Accused by the
BJP of taking money to facilitate clearances
while it was in power before the 2012 assembly electionsthe Congress is now demanding the BJP scrap all permissions.

ECO CONCERNS
A long span
bridge is being
constructed over a
no-development zone

case to have his name included as having tenancy rights through succession. Though
some of his relatives signed the papers, under
succession laws, deals cannot go through
unless all heirs are signatories to the same.
CLOSE TIES
Our ancestors have lived here for 200 years.
I have grown up here. Some of us have purchase certificates, buying the land in the mid
90s. The landlord has challenged these after
17 years, (on grounds they were ex-parte
orders) says local panchayat representative
Francis Rodrigues. He says the companys
first plan was a development plan over 35
years, which pushed the residential area to
one side. The second amended master plan
gives around one lakh sq m for the village to
reside ina move the company says was
offered to maintain goodwill.
With documents obtained through RTI,
Tiracol residents and Goa Foundation challenged the golf courses various permissions,
and raised several environmental issues.
These included harm to the biodiversity of
the ocean-facing plateau, leading to loss of
habitat in the river. Other contested issues
included applications to fell 1,966 trees, no
hearing prior to granting permits, manipulation of consents and disputes over private
forests areas within the project area.

48

August 15, 2015

NEW AMENDMENTS
Independent legislator Vijai Sardessai accuses the BJP government of passing amendments in 2014 to the Goa Agricultural
Tenancy Act to help golf course proponents
skirt around thorny tenancy issues. The BJP
government had passed amendments introducing a clause to file tenancy applications
before civil court jurisdiction from the more
tenant-friendly mamlatdars (officer in executive charge of a taluka) courts.
Meanwhile, the company says it is continuing work in areas its permits allow, since it
has all permissions and no contrary order to
the same as yet. Its plans include a standard
golf course and luxury villas, besides CSR
plans to beautify village residences as a typical Goan village. Pernems opposition politician and former union minister Ramakant
Khalap describes locating of the village
within a gated complex similar to displaying a live village as in a zoo. This is the sad
state we are reducing Goa to, he laments.
Still, the company successfully bid for
central government grants to set up the golf
course after the Goa Tourism department
floated expressions of interest in 2011 for the
eco-tourism project. The tourism industry
has always been keen on a world class golf
course to attract tourists and keep up with its
South East Asian competitors. Tourism
stakeholders, though, refused to comment on
the legal issues surrounding the project.
Though the government is facilitating the
project, ultimately, these issues will determine if the project tees off. IL

LAND GREED
Essar Power requires
the land to build a
corridor to move coal
stocks

Farmers Breathe Easy

Farmers of Devbhoomi Dwarka district get interim relief after moving a


writ of mandamus against Essar Power and the state government
By Kaushik Joshi

EARING arm-twisting by the


state machinery, including the
police, some farmers of Devbhoomi Dwarka district in
Gujarat recently moved Gujarat
High Court for issuing a writ of mandamus,
restraining Essar Power Gujarat Ltd and the
state government from evicting them from
agricultural land.
A writ of mandamus is a writ which
orders a public agency or governmental body
to perform an act required by law which it
has neglected or refused to do so.
Incidentally, Essar Power is among Indias
largest power generation companies and has
an installed capacity of 3,940 MW. It
requires the land to build a corridor for
transporting coal stocks.
The petitioners submitted before the
court that the matter was urgent as the
respondents were intent on dispossessing
them from the land in question. Taking this
into consideration, the matter was placed at
the residence of Acting Chief Justice VM
Sahai, who, along with Justice RP Dholaria,
heard the matter.
The petitioners said that their land was
not acquired and that the respondents were
threatening to take possession of it in view of
the award given by the collector for the same,
dated September 30, 2014. However, the
petitioners said their lands were not covered

by the award. After the hearing, the court


ordered that the petitioners were entitled to
interim relief. It restrained Essar Power Ltd
and the state government from taking possession of the agricultural land till the next
date of listing. It further directed that the
respondent shall not interfere in peaceful
enjoyment of the petitioners land.

his issue has taken political overtones,


with Congress spokesperson and
Abdasa MLA Shaktisinh Gohil accusing the BJP government of hobnobbing with
Essar Power and favoring it by giving away
gauchar (grazing) land, throwing norms of
the Land Acquisition Act to the winds.
He has also accused Essar Power of forcibly acquiring farmland in the district in
collusion with the BJP government in the
state. Further, he accused it of raiding three
villages on June 30 this year with the help of
the state machinery and starting to take possession of the land. He also contended that
the farmers were offered a lower price for the
land acquired.
Essar and the BJP government have,
however, rubbished these allegations. Essar
Power stated that there was no forceful possession and that compensation was paid for
the lands acquired.
For the poor farmers, however, the interim relief comes as a fresh lease of life. IL

The court
restrained Essar
Power Ltd and
the state
government
from taking
possession of the
agricultural land
till the next date
of listing. It said
the respondent
shall not interfere
in peaceful
enjoyment of the
petitioners land.

INDIA LEGAL August 15, 2015

49

RESPONSE FEATURE

NEW STRIDES IN
DEVELOPMENT

An all-encompassing approach to betterment of the people of Uttar


Pradesh under the leadership of Akhilesh Yadav

HE state of Uttar Pradesh,


despite all the challenges of
diversity, has made great
strides in overall development under the Samajwadi
Party in the last few years. From big
infrastructure projects to schemes
benefitting people, the government
has proactively pursued the development agenda.

50

August 15, 2015

If, on the one hand, the


Samajwadi Pension Scheme has
given new hope to the poor, the
1090 helpline has made women feel
more secure. The partys schemes
like Hausla and Samajik Suraksha
Abhiyan Yojana are also helping the
poor rise above their misery.
If the current pace continues, the
day is not far when the state will be

known for its development and


when it will contribute to national
prosperity.
INFRASTRUCTURE GROWTH
Especially remarkable is the progress
in infrastructure. The state government has put great emphasis on road
construction. It believes that the
benefits of development cant reach

the last mile in the absence of


connectivity, nor can farmers take
their produce to the market.
Chief Minister Akhilesh Yadav has
listed construction of the expressway
among his top priorities. There are
plans to construct a six-lane
Expressway between Agra and
Lucknow, covering 300 km at a cost
of `3,000 crore. This will facilitate
travel between the two cities in five
hours and will provide better connectivity to Firozabad, Shikohabad,
Mainpuri, Etawah, Kannauj and the
mango- growing town of Malihabad.
Among the important projects that
the government is pursuing are the
Delhi-Saharanpur-Yamnotri highway,
Bareilly-Almora state highway, the
Varanasi-Shaktinagar state highway,
and the Meerut-Karnal state highway.
Shahjahanpur-Hardoi-Lucknow

The chief minister


has inaugurated 200
sub-stations. This
will enable rural
areas to have 16
hours of
electricity and urban
areas, 20 to 24 hours
of electricity.
road, Gorakhpur-Maharajganj Road,
Balrampur-Gonda-Jarwal Road, ItaShikohabad Road and MuzaffarnagarSaharanpur-Deoband Road will be
made four-lane using the PPP mode.

Besides this, there are plans to


connect all the district headquarters
with four-lane roads.
ENERGY AND POWER SECTOR
To ensure 24-hour electricity supply,
the chief minister has inaugurated
(dedicated to public) 200 sub-stations. This will enable rural areas to
have 16 hours of electricity and
urban areas, 20 to 24 hours of
supply.
The development of IT City will
also boost employment. The setting
up of an in the state will help
youngsters get world-class technical
knowledge. The state government is
planning that IT professionals get
accommodation within the complex
where their workplace is located,
thus cutting down on transport cost
and time. IL
INDIA LEGAL August 15, 2015

51

STATES/ Governance / Kashmir Floods

Where are the T


Cherry Blossoms?
The September floods have left Kashmiris grappling with soggy soil,
damp buildings and an economy so wrecked that it will be years before
the environmental damage can be stemmed
By Aasha Khosa

WITHERING AWAY
Pink flowers of the
cherry tree

52

August 15, 2015

HE luscious red and


maroon
cherry
from
Kashmir was absent from
Indian markets this summer. And the beautiful
pink blooms of the cherry
tree, which grows in abundance in north Kashmir, withered in the frequent and untimely rains that have been
lashing Kashmir Valley since the devastating
September floods.
On any given day, an overcast sky, a
swollen Jhelum and drizzle are enough to
make any Kashmiri restless. Even the sight of
an odd cloud sends shivers down the spine,
for the freak weather conditions this summer
have prolonged the trauma of the people.
Parts of Srinagar resemble a ghost city,
says Javed, a Srinagar-based photographer,
who is trying to capture the aftermath of the
September devastation through his camera.
The mud and slush on the roads are lesser
than in winter, but parts of the city once considered posh, look like ghost townships.,
he adds.
Many affluent people from Rajbagh, Wazir
Bagh and Jawahar Nagar, which were totally
submerged in the flood waters, have quietly
shifted out of the Valley. Javed, who had a list
of assignments to photograph lavish
weddings in Srinagar before the floods, lost
all of them.
People have generally put off the weddings
or have shifted the venues outside Kashmir,
he says.

RISING PRICES
The ordinary Kashmiri continues to bear the
brunt of the floods even today and is struggling to cope with exorbitant prices of essential commodities and vegetables. Ever since
the flood waters receded, haakh, a leafy vegetable, belonging to the mustard family and a
staple dish in Kashmir, has become highly
prized at `80 a kilo.
Haakh is just not a vegetable, but a symbol of frugality and simplicity of life in
Kashmir, akin to coconuts for Malayalees
and lentils for North Indians. No meal is considered complete without it.
I wonder why I should buy haakh at such
an exorbitant price when I can get 250 gm of

mutton for a little more, wonders Sajida, a


Srinagar home-maker. She says that haakh
prices have never touched above `15-20
a kilo before.
Green beans, at `100 a kilo, and nadru
(lotus stems) grown in Dal Lake and marshes
around it, have also become unaffordable.
Tomato, mostly procured from Punjab, is
also priced exorbitantly.
INFERTILE SOIL
The September rains turned the soil soggy
and nearly infertile. Ashiq Ahmad, who used
to cultivate lotus stems in around 10 kanals
of marsh land and assorted veggies on six
kanals, has lost his business. Each year, he
would invest about `30,000 in his farms and
earn `3 lakh from them.
My fields resemble marsh land and the
floating gardens are drowned in lake waters,
Ahmed says. The soil is taking a lot of time
to drain out the flood water. Meanwhile, he
rows a shikara in Dal Lake to earn a living by
ferrying tourists and locals.
Kashmir, perhaps, is the only place in
India where vegetables are cultivated in
water. The floating gardens of Dal Lake are
famous for a Kashmiri farmers ingenuity, although the phenomenon is spelling a deathknell for the lake as it has shrunk to onethirds its original size in the last 100 years.
On an average, these floating gardens would
produce nearly 30 tons of vegetables

MAN-MADE DISASTER
The September floods
have impacted normal life
in Kashmir

The drainage
system is
clogged and
natural sponges
for absorbing
heavy rains are
dead. Kashmir
will continue
to face
water-logging
for a very
long time.
Dr MRD
Kundanghar, a
scientist who headed
the Dal lake
restoration project

INDIA LEGAL August 15, 2015

53

STATES/ Governance / Kashmir Floods

has been choked by encroachments on the banks of the


Jhelum that runs through
Srinagar; construction boom has
swallowed up wetlands and
paddy fields.
The drainage system is
clogged and natural sponges for
absorbing heavy rains non-existent. Kashmir will continue to
face water-logging for a very long
time, warns Dr MRD Kundanghar, a scientist who headed the
Dal lake restoration project.
He says that besides the high
prices of vegetables, locally
grown rice varieties too are
proving costly.
Saleem Beg, member, National Monuments Commission of India, warns that
scarcity of food could worsen if this years rice
production does not come up to the mark.
Kashmirs agro-economy has suffered hugely due to the floods, he says.

WAITING FOR END


TO CRISIS
(Top) Floating
gardens of the Dal
lake
(Above) Aerial view of
Srinagar city
sumerged
in water

daily, making the Valley self-sufficient. It was


only for a brief period of harsh winter that
the Valley would depend on vegetables from
outside. However, now the production may
have fallen to one-fourth after the flood,
says Ahmed.
The condition in the villages affected is
none too good either. Traditionally, each family cultivates its own vegetables. Rarely do
they come from Srinagar or outside the state.
But life has changed post-floods.
MAN-MADE CALAMITY
Environmentalists have termed the September floods as a man-made disaster. Over the
decades, the Valleys flood drainage system

54

August 15, 2015

CHILDREN AFFECTED
With July being monsoon time, schoolchildren too face hardship. After a prolonged
vacation, children have gone back to floodaffected, damp school buildings. One wonders how much it would affect their health,
says Jameel Andrabi, a former politician.
For businessmen, the loss has been
irreparable. Ashok Bhat, who used to supply
carpets to retailers in the Valley, says he lost a
huge sum of money that retailers owed him.
Business runs on trustwe supply the stuff
and they make the payment afterwards.
I lost nearly `one crore in the floods as
almost every creditor claimed he had lost
carpets in the floods.he said. Knowing well
that no insurance or relief would cover his
losses, Bhat has shut down the Kashmir part
of his business.
Photographer Javed, who lives uptown,
says: Going to Lal Chowk (the business centre) is depressing and on top of it, there is the
traffic mess. While he avoids going there, he
wonders how long he can do it.
In the meantime, people look up at the
sky for traces of ominous clouds. For that
would spell doom. IL

PROPERTY/ Sree Padmanabhaswamy Temple

Where the
Gods Rained
Gold
With the Modi government pushing its gold
monetization scheme for temples, and with
the Supreme Court ordering an audit of the
richest temple in the world, where does that
leave the Travancore royal family?
By Jacob George in
Thiruvananthapuram

ILL the gold monetization


scheme of the Modi government target the rich
and famous Sree Padmanabhaswamy Temple in
Thiruvananthapuram, Kerala? If the government can effectively implement the
scheme with regard to the huge stock of
gold and other valuable metals in this temple, it will be a great achievement for the
cash-strapped government, but it is not a
practical proposal.
Touching the treasures of this famous
temple is a very sensitive issue. Legally too,
the arguments are divided and complicated.
Sree Padmanabhawamy Temple is the family shrine of the Travancore royals and

56

August 15, 2015

hogged the limelight in 2011 when a courtordered inventory confirmed that its underground vaults contained huge treasures.
Gold ornaments, vessels and other valuables in five of the six vaults opened by a
committee set up by the Supreme Court are
estimated to be worth more than `one lakh
crore. The sixth vault, which is yet to be
opened, is said to have more than what has
already been discovered.
ASSETS MISMANAGEMENT
It was in 2007 that TP Sundararajan and
Padmanabhan filed a case before Kerala
High Court alleging mismanagement and
misappropriation of the temples assets. On
January 31, 2011, the high court ordered

that control of the temple be passed on to the


state government. The royal family appealed
to the Supreme Court, which, on June 18,
2011, appointed a seven-member expert
committee to open the vaults and take an
inventory of the temples assets. The committee included representatives of the Archaeological Survey of India, RBI, retired judges of
the Kerala High Court, the Maharaja and
K Jaya Kumar, then additional chief secretary of the state.
The committee found dazzling ornaments
and objects inside Vault A, including a golden bow and arrow, umbrellas with gold rods,
a golden throne for the deity embedded with
hundreds of precious gems and stones, heaps
of gold coins and hundreds of big gold

chains. News of the treasure hunt spread


across the world and suddenly, Sree Padmanabhaswamy Temple was catapulted to
the position of the worlds richest temple.
Lord Padmanabhan knows the truth. Some
are pointing accusing fingers at us. Because
of the court case, we cannot say anything,
said Princess Gouri Parvathi Bayi of the
Travancore royal family to India Legal.
But the truth is that the Padmanabhaswamy Temple, a true symbol of the past
glory of the kingdom of Travancore, no more
belongs to the royal family. An interim order
of the Supreme Court in the case has severed
the centuries-old bond between the royal
family and the temple. A five-member administrative committee headed by

GOLDEN HUE
(Above and facing page)
The riches of Sree
Padmanabhaswamy
Temple accrue from
centuries of royal
patronage and faith of
the devotees

INDIA LEGAL August 15, 2015

57

PROPERTY/ Sree Padmanabhaswamy Temple

care not to hurt the royal family. The CPM feels the treasure
belongs to the people. The
rationalists too have taken the
same stand.

TRADITIONAL PATH
The temple adheres to its
rituals steadfastly

Gold
ornaments,
vessels and
other valuables
in five of the
six vaults
opened by a
committee set
up by the
Supreme
Court are
estimated to
be worth more
than `1
lakh crore.
58

August 15, 2015

additional district judge KP Indira has taken


over the administration of the temple, with
district collector Biju Prabhakar and chartered accountant S Vijayakumar as members.
Former district collector KN Satheesh is the
executive officer.
The temple doesnt belong to us, but we
belong to the temple, asserts a humble Gauri
Parvathi Bayi. Known for their simplicity and
ordinary way of life, the members of the royal
family are revered by the people of Thiruvananthapuram.
Lawyers point out that the wealth of temple came by way of offerings made by devotees over a long period of time. Idols of gods
are legally considered perpetual minors and
are that way permitted to be in the custody
of authorized trustees. Prime Minister
Narendra Modi will not be able to touch the
treasures in the vaults of Sree Padmanabhaswamy Temple through any legal procedure or executive order. He may be able to do
it through a concensus, but that is very difficult to achieve, says advocate Shivan
Madhathil of the Kerala High Court.
Of course, consensus is rarely achieved
among politicians and political parties in
Kerala. The state leadership of the BJP is of
the opinion that the temple and its treasures
belong to the devotees. The Congress-led
UDF too is of the same opinion, but it takes

ROYAL DECREE
Going back in time, Anizham
Thirunal Marthanda Varma,
the first of the Travancore
maharajas, established his rule
in 1729. He declared that only
the government could buy and
sell pepper and other spices.
This fetched him huge revenue,
all in the form of gold coins.
Varma made underground
vaults in the Padmanabhaswamy Temple to keep
them safely. Towards the end of
his reign (1729-1758), he conquered Ambalappuzha, a little kingdom, in
the famous Battle for Ambalappuzha, and
took over all its valuables. He moved them to
vaults in the Padmanabhaswamy Temple. He
then dedicated the Travancore kingdom to
the Sree Padmanabhan deity in 1750 and
declared himself a servant of the deity. He
deposited gold and other valuables that he
had gained in the secret vaults of the temple.
The royal family has served the deity ever
since, with the maharaja heading the temple management. Subsequent rulers ruled
the kingdom for and on behalf of Sree Padmanabhan. After the integration of the
princely state in 1947, the royal rule came to
an end and most major temples in
Travancore, which comprised a large part of
southern Kerala and adjoining parts of Tamil
Nadu, were brought under a Devaswom
Board. But as a special case, control over the
Padmanabhaswamy Temple was not taken
away from the royal family.

PARTIAL MONETIZATION
Meanwhile, the Kerala government is determined to extend all security to protect the
temple, says chief minister Oommen Chandy.
Rahul Eswar, secretary of the Hindu
Parliament (a platform of 108 Hindu organizations brought together with a view to an

Lord Padmanabhan knows the truth. Some


are pointing accusing fingers at us. Because
of the court case, we cannot say anything.
Princess Gouri Parvathi Bayi (left)
of the Travancore royal family

inclusive and secular approach to Hindu


unity) gives a pertinent suggestion. He says
there are three categories of valuables in the
temple: those used for daily and periodical
temple rituals and festivals as well as ornaments of the deity; centuries-old ornaments
and gold coins of immense antique value and
ordinary gold ornaments which have only
commercial value. The valuables which have
only commercial value, which are also
immense in value, can be monetized. Those
which are used for rituals should be kept for
that purpose and those with antique value
can be exhibited for the public to see, for
which a fee can be collected, he suggests. But
he admits that a consensus on some sensitive
issues is hard to reach because different sections of the Hindu community have different
views. Even with regard to treasure in the
Padmanabhaswamy Temple, a consensus is
too remote.
Prof MG Sasibhooshan, eminent historian and an expert on the temple, supports this
argument. A huge amount of money is being
spent by the state government for providing
security to the temple. Ultimately, the temple
will have to have its own resources to meet
these challenges, he says.
Prominent journalist and historian
Malayinkil Gopalakrishnan says that the gold
of commercial value can be pledged to the

Reserve Bank of India (RBI). If it is pledged


to RBI, it will fetch a large amount as revenue, which can be used for developmental
activities of the bank, he reasons.
Though the apex court has permitted the
royal family to be in charge of traditional rituals and ceremonies, it is being kept away
from the day-to-day administration of the
temple. The apex court, while agreeing with a
500-page report of Supreme Court-appointed amicus curiae Gopal Subramaniam, has
ordered the creation of a five-member
administrative set-up under the district
judge, which will not have any direct representation of the royal family.
DAMNING REPORT
The order also signaled a critical turn in the
long-drawn litigation for transparency in
administration and proper audit of the huge
treasure in the temple. There are serious
lapses in the management of Sree Padmanabhaswamy Temple and the invaluable wealth
its underground vaults contain, said the
report submitted in the Supreme Court by
Subramaniam. When India Legal contacted
him, he said the entire report was available
on the internet and that he was not permitted to talk to the media.
The report also wanted the court to
restrain the head of the Travancore royal
family from interfering in the day-to-day
affairs of the temple as its trustee. It urged
the court to order audit of the treasures by a
competent team, preferably led by former
Comptroller and Auditor General, Vinod Rai,
who camped in Thiruvananthapuram and
took stock of the treasures and accounts of
the temple.
With one more vault remaining to be
opened and examined, the treasures of this
temple remain an enigma. Will it go the
Modi way or remain forever in the dark
underground vaults? IL
INDIA LEGAL August 15, 2015

59

PROPERTY/ Mysore Maharaja

A Million
Dollar
Headache
Boston-educated Yaduveer
Gopalraj Urs, the new
Maharaja of Mysore, has not
only inherited massive
properties but also a
barrage of litigation
By Imran Qureshi

T has all the ingredients of a social


drama that would make a good
movie. After all, nothing sells like
royalty in India. So, when a 23year-old undergraduate from Boston went through an elaborate ceremony in May this year to be
anointed head of the 600-year-old Wodeyar
dynasty, everyone went gaga over it and
Mysore hit international headlines.
But many did not like Yaduveer Gopalraj
Urs to be given the exalted title of Maharaja

CROWN OF THORNS?
Yaduveer Gopalraj Urs with Pramodadevi
Wodeyar at his coronation

60

August 15, 2015

Muhindro Khundrakpam

of Mysore almost 41 years after the last


maharaja, Sri Jayachamarajendra Wodeyar,
passed away. Jayachamarajendra Wodeyars
son, Srikantadatta Narasimharaja Wodeyar,
who passed away in 2013, was the last recognized Prince of Mysore. Yaduveer is the grand
nephew of Srikantadatta. So, why would a
young man studying abroad want to be
crowned the new Maharaja?
IMMENSE WEALTH
Sceptics have described the anointment in
unfavorable terms. Some have called it him a
King without a Kingdom. Others have
described royalty as the biggest landlord,
given the large properties that will be inherited. Still others consider it the best real estate
deal going for anyone born in the family.
Thats natural considering the huge number of
properties that the maharaja had declared in
1950, when the state joined the Indian union.
These properties include the majestic
Mysore Palace, the Windsor Castle-like Bangalore Palace, Lalit Mahal Palace, Jagan
Mohan Palace, Rajendra Vilas Palace on
Chamundi Hills and Fern Hill Palace in Ooty.
Theres also land in various parts of the state.
But large portions of the properties were lost
because the last maharaja did not think of registering them. So, when Indira Gandhi abolished privy purses in 1971, the reality of

democracy hit the royalty rather harshly.


The unregistered lands were either usurped or encroached upon and legalized on the
basis of so-called agreements with the last official maharaja, say long-time observers. In
many cases, it was simply because there were
no caretakers for the property. The Urban
Land Ceiling Act too hurt the family. Large
portions of the remaining properties are under
litigation, from the lowest court in Mysore to
the Supreme Court.

UNEXPECTED
WINDFALL
Yaduveer has inherited
the Mysore Palace,
besides other
palatial properties

PROBLEMS GALORE
So, why would Yaduveer agree to be adopted
by Pramodadevi Wodeyar, wife of late Srikantadatta Wodeyar, to head a dynasty with so
many problems? Or, for that matter, why
would Chaduranga Kanthraj Urs (son of late
Princess Gayatri Devi, sister of Srikantadatta
Wodeyar) file a partition suit in the court of
the City Civil Judge, Bengaluru, when the
properties have shrunk dramatically over the
years with not much hope of a solution soon?
Kanthraj Urs was chosen to conduct the

Kanthraj Urs, royal prince Srikantadattas


sisters son, claims that Pramodadevi had
first proposed his name as the successor.
Yaduveer was the fourth choice.
INDIA LEGAL August 15, 2015

61

PROPERTY/ Mysore Maharaja

LEGAL EYE/ Online Will

old sons name. When I and my wife felt traumatic about it, she suggested the name
of Aditya Gurudev, son of Indrakshidevi
(another sister of Srikantadatta). He declined.
Yaduveer became the fourth choice, Urs told
India Legal.
His main grouse is that Pramodadevi
became abruptly hostile when the issue of just
partition among all the co-heirs was raised by
him. Urs point is that the 1984 family deed of
settlement was iniquitous, unfair and unconscionable and is also not binding on the plaintiff as he was a minor at the time. He also
wanted a permanent injunction restraining
Pramodadevi from alienating, encumbering or
otherwise creating a third-party interest in the
properties.

ROYAL GAMES
(Clockwise from top left)
Kanthraj Urs; Pramodadevi
Wodeyar; her deceased
husband Srikantadatta; the last
maharaja Jayachamarajendra

62

August 15, 2015

funeral rites of Srikantadatta Wodeyar (who


was issueless like several predecessors who sat
on the Mysore throne, allegedly because of a
curse). Urs submission before the court said:
The plaintiff eventually became close to him
(Srikantadatta Wodeyar) and it was generally
believed that he was being groomed as his successor in matters of state and privileges.
Urs angst is against Pramodadevi. No,
I wasnt expecting to be named as successor.
I didnt go begging for it. It was she who proposed that first on January 26, 2014. Within
a few hours, she propped up my seven-year-

LINEAL PRIMOGENITURE
Pramodadevi declined to speak on any of the
issues raised by Urs because she felt it was
subjudice. But her objections in the court
point out that 1984 settlement cannot be
assailed by a grandson through a daughter of
the Mysore Maharaja on the plea that the
terms of the settlement are inequitable. The
estate of Jayachamarajendra Wodeyar is an
impartible estate governed by the rule of lineal primogeniture.
Her basic point is that Jayachamarajendra
Wodeyar had created trusts with substantial
properties in the names of his daughters.
These were still being enjoyed by the children
of the sisters. In addition, Srikantadatta
Wodeyar had also given maintenance to all the
sisters as per the 1984 settlement.
The tussle, therefore, boils down to control
of the existing properties for possible exploitation of resources in future. It is fundamentally
a problem of real estate, says Prof Nanjaraj
Urs, a historian of the Wodeyar dynasty. Hes
right, given the fact that even conservative
estimates put the value of the properties of the
Wodeyar family at hundreds, if not thousands, of crores.
So, Yaduveer has inherited property disputes, whose settlement seems a long way off
as the court is yet to frame the issues in this
civil suit. To a commoner, this would appear
like a game of Russian Roulette, where theres
no harm taking a chance since the stakes
are so high. IL

Amitava Sen

Rest in Peace T
An online will is a new way to secure
your assets and leave your loved ones
trouble-free. Besides being an authentic
document, it is cheaper than paying lawyers
By Ramesh Menon

ECHNOLOGY has changed


the way we live. And now it
has even changed the way
we die. Many are now writing their wills online without the help of a lawyer as it
is a simple and uncomplicated process. The phenomenon is relatively
new in India and just a handful of firms are
doing it.
HDFC Securities has launched an e-will
service and specialized websites too are offering the same service. The fee is as low as
`4,000. This is much lower than what
INDIA LEGAL August 15, 2015

63

LEGAL EYE/ Online Will

service which made minor changes and finalized it. He then walked into the registrars
office in Mumbai to discover that registration
of the will would cost just `440.
I was amazed to discover that there are
government departments that are so efficient
and courteous. I did not pay any bribe. It was
all done in just 90 minutes. I am so glad I
opted to make a will online, he said.

Writing a will is one of


the most unselfish
things you could do
for your loved ones to
help them in a critical
juncture of their lives.
Gokul Das, MD and CEO,
Warmond Trustees and
Executors Pvt Ltd

Writing a will is
a wise decision
that will be
perceived as
wisdom by the
next generation.
Gagan Rai, MD and
CEO, National Securities
Depository Limited

lawyers charge; some of them charge around


`1 lakh to draft a will.
Mumbai-based Sharad Samant, 74, a former senior project executive with the State
Bank of India, wanted to write a will. He spoke
to solicitors. They said that it would cost
`25,000 to draft the will and another `25,000
for registration. Samant did some research
and stumbled on the concept of an online will
system. He found that it costs just `5,000. He
wrote the draft and sent it to an online will

Secure assets
What assets can be covered under the will?
All movable as well as immovable assets, including real estate, fixed
deposits, bank accounts securities, bonds, proceedings of insurance
policies, retirement benefits, art, precious metals like gold and silver,
photographs, sketches, blogs, websites and other digital assets and
Intellectual Property Rights. In short, any asset that the author of the will
has in his ownership at the time of his death can be included.

64

August 15, 2015

URGENCY OF WILL
Writing a will has become more relevant today
as many families have fractured relationships.
Even corporate families are increasingly
breaking up, unlike the old times when they
bonded together for the sake of business.
Mumbai-based Gokul Das, Managing Director and CEO, Warmond Trustees and Executors Pvt Ltd, says: Writing a will is one of
the most unselfish things you could do for your
loved ones to help them in a critical juncture
of their lives.
Out of many reasons why people dont
make their will in India is lack of awareness.
Others avoid doing it fearing the expense.
Many also delay doing so thinking it is too
early to write one. And, then, death deals a
sudden blow. Many families suffer financially
when the person they depend on suddenly
passes away without making a will. Determining who gets what becomes complicated
and there are invariable fights.
Gagan Rai, Managing Director and CEO of
National Securities Depository Limited, which
is the depository for the equity market in
India, says: Writing a will is a wise decision
that will be perceived as wisdom by the next
generation.
And it has become so much easier to do so.
The online explosion has dramatically
changed our lifestyles, the way we shop, conduct our financial transactions, pay our taxes,
fix our insurance policies and communicate
with each other. Writing an online will is
another new trend punctuating this sphere.
EASY PROCESS
An online will is drafted by registering oneself
on the portal of the company that deals with
online wills. To begin with, you fill in details of
your assets and heirs in a standard format. You
then upload it on the portal. The will is then

drafted by legal experts and sent back to you


for a review. Once you confirm it, the will is
finalized and is either emailed or sent by post,
depending on how you want it. Now, carefully
review the data to check for errors. You make
the payment online too. After incorporating
the changes, if any, the will is emailed or sent
by courier. Rest in peace now.
Make sure the will is signed in the presence
of two witnesses. Otherwise, it will not be
valid. You might want to have a doctor certifying that you are of sound mind. This will avoid
legal complications that could arise if some
relative challenges the will saying that you didnt know what you were writing. The e-will can
be updated or changed later if you want. It is
not carved in stone.
In the West, writing a will is almost a given,
with over 70 percent of people opting for it.
However, in India, it is yet to reach the double
digit mark. But succession planning will pick
up here too with more wealth being created.
Rajesh Narain Gupta, managing partner, SNG
Partners, Mumbai, told India Legal: The
online will platform is a great boon, not only to
wealth management players, but also to all
those who cannot afford the expensive fees of
a lawyer. Succession planning is an integral
part of wealth management. Will writing is
bound to gain momentum with growing
wealth and the online platform will provide
easy access. It has created a good ecosystem
around the wealth management space.
LOWER COSTS
The cost of a normal will can vary, based on
location, asset size, estate planning requirements and the experience of the lawyer.
Normally, a lawyer would charge more than
`10,000 for drafting a will. Lawyers charge
much more if the wealth of the individual is
huge. Compared to that, an e-will is easier to
make. It saves time and is cheaper.
Online will writing services started last
year. They were joint ventures of NSDL
e-Governance Infrastructure with Mumbaibased Warmond Trustees and Executors and
HDFC Securities with Legal Jini.
While NSDL offers the service via a new
website, www.ezeewill.com, HDFC Securitiess
e-will service is an addition to the bouquet of
online services that the firm offers. NSDL e-

The online will


platform is a
great boon, not
only to wealth
management
players, but also
to those who can't
afford the
expensive fees
of a lawyer
Rajesh Narain Gupta,
managing partner, SNG
Partners, Mumbai

Get cracking
Why is it important to write a will?
 A will ensures that your interests are taken care of and your dear ones
have a seamless and trouble-free transfer of assets.
 It is an authentic document.
 If you have not left a will, your wealth will be distributed as per the law. It
may not match with your wishes.

Gov and Warmond Trustees and Executors


tied up with the largest and the oldest private
sector bank in Kerala, Federal Bank. This
exclusive tie-up will offer the EzeeWill facility
through the Federal Bank website.
Radhakrishnan Palakkot, 59, who runs a
factory of construction components in Pallakad in Kerala, opted to make an online will as
he found that it has a privacy of its own.
Besides, it was so comfortable and easy to do.
There must be awareness created about this
modern service, he said.
Many worry that if they opt for the friendly
online will process, their personal details will
be out in public space. That should not be a
cause of worry. Service providers offer security
of information, as this is a highly sensitive
financial matter.
Portals assure confidentiality and safety of
the personal data submitted. In fact, they
remove all the details from their records once
the online will is finalized.
So rest easy. IL
INDIA LEGAL August 15, 2015

65

ENVIRONMENT/ Construction and Demolition Waste /New Bylaws

Photos: Anil Shakya

The Waste Land

Indias construction boom generates huge amounts of waste, which in


2013 was pegged at 50 million tons. New draft rules have now been
introduced to tackle this growing menace
By Papia Samajdar

OFFICIAL
APATHY
(L-R) Nobody
cares about
recycling or
reusing
C&D waste
in India

66

August 15, 2015

N April this year, the Ministry of


Environment and Forests (MoEF)
and Climate Change introduced a
set of draft rulesSolid Waste
Management Rules 2015for
public comments. One of the significant provisions of these draft
rules is a comprehensive and separate mention of construction and demolition (C&D) of
waste and its reduction, reuse and recycling.
C&D waste has been one of the most neglected
categories of waste in Indiaboth in terms of
official laws or policies as well as efforts

towards recycling or reusing it. And, it is a


category that is a cause for concern. One
look at the statistics explains why.
India is on the brink of a construction
boom, and its real estate sector has been
growing at 10 percent per annum over the
last decade, as against the world average
of 5.5 percent. Approximately 70 percent
of the building stock in India is yet to
come up, and the built-up area is expected
to swell almost five times by 2030, from
the base year of 2005.
This will involve generation of huge

quantities of C&D waste. While no single


authority has been tracking its generation,
unofficial estimates in 2013 by the Centre for
Science and Environment (CSE) says India
generated 530 million tons. The environmental impact of this could swamp and choke our
urban centers unless we wake up.

efore we go any further, lets understand what constitutes C&D waste.


This consists of debris generated during the construction, renovation, and demolition of buildings, roads, bridges and other
infrastructure. It often contains bulky, heavy
materials, such as concrete, wood, metals,
glass and salvaged building components.
Estimates by the Ministry of Urban
Development (MoUD) and municipal bodies
of generation of C&D waste have a large variance. The Manual on Solid Waste
Management, 2000, issued by the Central
Public Health & Environmental Engineering
Organization (CPHEEO), says 300 million
people living in urban India produce 38 million tons (MT) of municipal solid waste
(MSW) per year; the percentage of total C&D
waste generated is 10-12 percent of the total
MSW generated.

CSE has calculated its estimations taking


into account construction of 5.76 billion
square meter (sqm) of floor space from 20052013. If the Technology Information Forecasting and Assessment Councils (TIFACs)
thumb rule is appliedwhich states new construction generates 60-50 kg of C&D waste
per sqmthen in 2013, India generated 50
million tons. As anyone can see, the difference
in the two figures is very stark, with CSEs estimate almost 44 times the amount quoted by
the MoUD.
According to the working sub-group on
C&D waste set up by the Delhi government,
under the chairmanship of M Shankarnarayanan of CPHEEO in 2006, one-third of
municipal waste generated in Delhi consists of
C&D waste. He says that 2,500 tons per day
(TPD) of C&D waste is generated by the
Municipal Corporation of Delhi (MCD) area
alonewith the total MSW waste generated
being pegged at 6,000 TPD.
According to a 2010 note by MCD, as per
the Census of India, there are about 2.45 million properties in Delhi, of which roughly 0.9
million are assessed ones. Even by a conservative estimate, using TIFAC averages, Delhi
should be producing 4,600 tons of C&D

THE FLIP SIDE


The construction
boom will generate
huge quantities of
C&D waste

Unofficial
estimates in
2013 by the
Centre for
Science and
Environment
says India
generated 530
million tons of
Construction
and Demolition
waste.
INDIA LEGAL August 15, 2015

67

ENVIRONMENT/ Construction and Demolition Waste /New Bylaws

While there are fixed areas where C&D


waste is dumped, illegal dumping takes
place in landfills, empty plots, catchment
areas, low-lying places and river beds.
waste. However, the MCDs records point to
about 1,000-1,200 tons only.

HOPE DAWNS
The C&D waste
processing plants
can recycle the
waste generated

68

August 15, 2015

isposing C&D waste remains a problem. While there are some identified
areas where this waste is dumped,
large-scale illegal dumping happens in landfills, empty plots, catchment areas, low-lying
or marshy places. The waste also finds its way
to river beds, with serious consequences.
There are other environmental concerns
about C&D waste and its disposal. India has
no more land now for creating new landfills.
Moreover, the production processes of some
building materialsuch as Portland Cementcan lead to greenhouse gas emissions.
The mining of minerals is not a sustainable
business and will not be able to support the
construction boom.
So what is the solution? Reuse and recycle
C&D waste and turn it into an asset. But that
is easier said than done. C&D waste finds a
brief mention in the Municipal Solid Waste
Rules notified by the Ministry of Environment
and Forests in 2000. The rules lay the respon-

sibility for collection, segregation, storage,


transportation, processing and disposal of
municipal waste on municipal authorities, and
give the Department of Urban Development
of the concerned state and/or union territory
the responsibility of enforcement.
Schedule 2(1)(vi) mentions that C&D waste
should be collected and disposed of separately
from the rest of the municipal waste and follow proper normsthese norms are to be
decided by each state. But due to fogginess
over accountabilitythe responsibility for
enforcement lies with a different ministry or
department and there is weak implementation
of rules. The MoEF, which drafts the rules, is
dependent on another ministry for their
implementation at the state level. Finally, who
is accountable?

here have been a few serious efforts


towards recycling this waste. One of the
recommendations of the sub-committee instituted in Delhi focused on setting up a
C&D waste processing and recycling plant to
recycle 500TPD of waste. In 2010, IL&FS
Waste Management & Urban Services Limited
(now IL&FS Environmental Infrastructure &
Services Limited) was granted permission to
set up Indias only C&D waste processing plant
under the Air & Water Acts by the Delhi
Pollution Control Board. Land was given in
Burari by the MCD.
The plant is operational. It has brick and

bat processing units, a concrete


block processing unit, an RMC
(Ready Mix Concrete) plant, a
tile-making plant and a pavement block-making plant. The
plant says it is processing 1,200
TPD currently. It has helped
reduce the load on landfills, uses
treated effluents supplied by
Delhi Jal Board and has reportedly saved the Yamuna from
being clogged by 15.4 lakh tons
of debris.
A committee set up to look
into BIS regulations is likely to
include C&D aggregates in its
policy soon. Once the aggregate
is allowed, the end-products will
be used by government departments and larger builders.
The Delhi-based Central
Roads Research Institute (CRRI) has tried
using C&D waste for road construction.
Extending this laboratory work, test road construction has been undertaken in Delhi. CRRI
will now develop guidelines for C&D waste
reuse in roads.

eanwhile, the draft rules have


stressed on reduction, reuse and
recycling of C&D waste. Chapter 1
of the rules clearly mentions rules for all solid
waste, barring C&D waste: this has been done
to give this category its due importance. This is
a welcome move. Chapter 2 is dedicated to
C&D waste, where the waste generator must
give an undertaking for collection, segregation
and disposal. Large generators are required
for this and appropriate approvals for solid
waste disposal are needed before construction
can be started.
Urban bodies have been asked to provide a
detailed plan for proper management of the
waste generated. These bodies also have the
liberty to provide incentives to a generator
who provides a plan for reuse or recycling.
Urban bodies are also mandated to maintain a
yearly database of the construction waste generated within their jurisdiction. There is a provision for expert committees to provide inputs
on recycling the waste.
Apart from these provisions, which should

be able to create space for the market to be


interested in recycling and reusing this
waste, the rules now include provisions for
public awareness through the ministrys
websites, workshops and other dissemination programs.
The demand for pushing policy to create
market mechanisms, where demand would
be generated for the use of recycled waste
products has been accommodated in the
draft rules. Inclusion of incentives for recycling and use of recycled material may
enable the rules to ease the pressure on naturally sourced resources such as sand. Even
with its unabated illegal mining, the demand
is unsustainable.
The implementation of the rules, when
notified, however would remain a challenge,
especially in the case of older construction.
The rules do not mention anything about
repair work, and that would remain a challenge too.
The good thing is that the rules are quite
progressive. They need to be implemented
strictly by the urban bodies and monitored
vigorously by the CPCB. IL

ENVIRONMENTAL
DISASTER
Rivers like this are
dying a slow death due
to dumping of waste

The writer is a senior communications


officer with the Centre for Policy Research.
She has also worked with the Centre for
Science and Environment.
INDIA LEGAL August 15, 2015

69

HUMAN RIGHTS/ Jail Reforms

Jailhouse Rock

In a new initiative, danseuse Alokananda Roy has introduced


dance-drama to prisoners in Alipore Womens Correctional Home,
infusing the inmates with hope, self-esteem and a brighter future
By Sujit Bhar

Madhuparna Banerjee

Sujit Bhar

Take up one idea. Make that one idea your lifethink of it, dream of
it, live on that idea. Let the brain, muscles, nerves, every part of your
body, be full of that idea, and just leave every other idea alone. This is
the way to success, that is the way great spiritual giants are produced.
Swami Vivekananda

IN STEP WITH TIMES


(Left) Children of jail inmates
perform on the opening day
of school;
(Right) Alokananda Roy with
an undertrial

70

August 15, 2015

FTER two hours of fun and play, it was time for threeyear-old Sumi to leave school and head for home.
Ebare bari jete hobe (Now you have to go home),
Alokananda Roy, well-known danseuse and social
reformer, gently told her in her mother tongue, Bengali.
Bari? (Home?) was the little girls surprised query. For her, home is
jail with its high, forbidding walls. She was born there to a mother who
was jailed. How would she know what home is? Not that she knew

what school was either, till she came to


Roys pioneering effortHeartprinta
school within Alipore Womens Correctional Home in Kolkata.
POSITIVE POSTURES
This is probably the first time that such an
effort has been made. Roy had earlier designed culture therapy for jail inmates. Her
brilliant plays with them, many of whom
were hardened criminals, have astounded jail
officials and common people alike. She has
given hope to those who had none and nurtured talent where there seemed to be none.
Roy says: You may have made a mistake
once in your life, but theres always a way out
of that misery.
From then on, teaching innocent kids was
a natural transition. Its no fault of theirs
that they are in jail. They are as innocent as
any other child and proudly independent,
explains Roy. Take Sumi, for example. She
prefers to be called by her proper name,
Aparajita (undefeated). Her only outing,
when she dresses up in bright clothes, is
when she accompanies her mother for court
hearings. Is that a life of a child?
Roy became associated with these children, thanks to the efforts of BD Sharma,
additional DGP, West Bengal. He was responsible for correctional homes around the
state and helped Roy put together stage plays
involving jail inmates. When he told her that
something needed to be done for the kids,
Roy went around the jail talking to the inmates. I bonded with them and became
their ma, their mother, somebody they could
look up to and trust, she says. Imagine being
ma to many hardened criminals; such was
her demeanour and aura.
It was also about trust. Whenever she
speaks, she has the attention of her audience
and slowly, their trust. Thats a great gift for
me, their trust, she says. And thats why
these criminals have travelled with her
(along with an escort) to several venues in
the city and beyond and nobody even thought of escaping.
So how does her culture therapy work?
Roy explains that the carefully selected
dance-dramas allow hardened criminals and
undertrials to realize their true potential,

Can you ask my father to come?


A peek into the sorrow and loneliness of children whose parents
are undertrials or facing a jail sentence
HERES a story, as told by Alokananda Roy, of a child whose father
was in jail, while she and her mother
lived in their village, ostracized.
It was late night one day when I
got a call on my cell phone, she
says. There was a little girl on the
other side, the daughter of a jail
inmate who was involved in one of my
drama projects. Dida (grandma), ma
is not well, she said, sobbing. Can
you come and take her to the doctor,
dida, or can you get my father to
come? I cant do it, I am too small.
I was shocked. What could be
done at that hour? I quietly asked her
why she couldnt ask her aunt next
door to take her mom to the doctor.
Her answer shocked me even more.
Nobody talks to us in this village, she

said. Even over the phone, I could


feel the fear and desperation in her
voice. She pleaded: Cant you ask
my father to come and take my mom
to the doctor, dida?
What could I tell the child that
night? Tell her that her father was a
convicted felon and that he wont be
out of jail for a long, long time? Of
what good was the immense trust
that she had posed in me?
The responsibilities that come with
such delicate issues are immense.
Reformers such as Roy have to walk
on eggshells all the way. One wrong
step can tear the delicate bonding
that binds such reformers to jail
inmates and their families.
Meanwhile, Roy finds it worth
investing time and energy in them.

Madhuparna Banerjee

raising their self-esteem and strengthening


their desire to reintegrate with the world outside. Its a matter of loving oneself.
Heartprint was inaugurated in May by
Haider Aziz Safwi, minister-in-charge, correctional administration, and has 48 kids.
Dressed in checked uniforms, the kids,
between 2 to 10 years, marched proudly to
school with their school bags and were

RIGHT
BEGINNING
Minister-incharge Haider
Aziz Safwi
inaugurates
the school

INDIA LEGAL August 15, 2015

71

VIEWS ON NEWS

HUMAN RIGHTS/ Jail Reforms

PROPER ACT
Jail inmates get ready
for the play, Valmiki
Pratibha, in Kolkata

EVERY FORTNIGHT VIEWS ON NEWS WILL BRING YOU TELL-ALL NEWS, ANALYSES AND
OPINION FROM THE SHARPEST INVESTIGATIVE REPORTERS AND MOST INCISIVE MINDS
IN THE NATION
Views On News (VON) is Indias premier fortnightly magazine that covers the wide spectrum
of modern communication loosely known as the media. Its racy, news and analysis oriented
story-telling encompasses current global and Indian developments, trends, future projections
encompassing policy and business drifts, the latest from inside the print and electronic
newsrooms, the exciting developments in ever-expanding digital space, trending matters in
the social media, advertising, entertainment and books.

LOCK & STOCK


 There are 1,391 pris-

ons in India. They


accommodate 4,11,992
prisoners against the
authorized capacity of
3,47,859, amounting to
a 118.4 percent occupancy rate.
 Jails have 67.6 per-

cent undertrials, 31.5


percent convicted persons and 0.9 percent
civil prisoners and
detainees.
 Rate of imprisonment

is 32 prisoners per one


lakh population, one of
the lowest in the world.
 There are 19 jails for

women. Of the total


authorized capacity of
3,47,859 inmates, there
is provision for only
4,827 women (1.4
percent). But in reality,
there are 18,188
women inmates.
 342 women convicts

with 407 children and


1,252 women undertrials with 1,518 children
are lodged in various
jails in India
Sujit Bhar

72

August 15, 2015

Sectio

S
W
E
N
N
O
VIEWS
nance

Gover

ENT
ENVIROBUNM
ZZ

HYGIENE

TO
PPENED
WHAT HA PROMISE?
TOILET
52
NAMOS

com

newsonline.

son
www.view

GLOBAL
ES
OVER BE

48

07,
AUGUST

Sujit Bhar

struck by the toys, small tables and books


there. Roy also managed to get a television
set for the green school on the west side
of the jail compound. It is approximately
18x30 sq feet and has started recruiting
teachers. The school needs more material
books, toys, Montessori-type teaching elementseven as Roys NGO, Touch World,
accepts donations.
Roy says: Touch World is our jail project.
I prefer to call it a movement now. She now
wants this unique project to be replicated in
other jails in West Bengal, various states and
abroad too.
ON A COMMON PLATFORM
As for adult inmates, her plans have grown
beyond her expectations. They have travelled
extensively, giving public performances even
in Raj Bhawan, Kolkata, and Shantiniketan.
They have also been to Mumbai, Delhi, Pune,
Bangalore and Bhubaneswar on the invitation of social organizations.
Roy explains: This has brought about a
bond of a different naturenot of jailor and
jailedbut talent coming together on equal
terms. It is essential that they get accepted

and recognized as artists as the applause can


change them from inside. But more than
that, what the inmates have gained is what
they had lostself-esteem, dignity and
respect. And these, says Roy, have become
precious for them.
The children of the women inmates were
natural corollaries to this effort. She says:
These children are devoid of the notion of
family, care and social values. Many were
born in jails and do not know the concept of
home. Roy also plans to impart basic learning and life skills. Although the kids technically walk from one room to another to
attend school, they enter a different world, a
world beyond their dreams.
Roy has been busy tying up with other
like-minded organizations, including the
corporate world, to develop her venture.
Touch World is in dialogue with Metro Cash
and Carry to open a store in the correctional
home. The store will be operated by inmates
after Metro provides training and awards
certificates, which will help them to be rehabilitated after release.
Talk about giving the inmates a future to
bank on. IL

2015

`50

ns:
Bihar Electio

An ENC Publication
If the media is leaving you behind, stay ahead of it by
picking up yesterdays Views On News!
VIEWS ON NEWS
Dont miss a single issue of this stimulating, unbiased,
entertaining new fortnightly magazine and get special
discounts for yourself and your friends

E. N. COMMUNICATION PVT. LTD.


A -9, Sector-68, Gautam Buddh Nagar,
NOIDA (U.P.) Pin : 201309.
Phone: + 9101202471400432 / Fax: + 9101202471411
editor@viewsonnewsonline.com / sales@viewsonnewsonline.com
www.viewsonnewsonline.com / www.encnetwork.in

UNLECAESDHEINNGTED
UNPRE PR
BLITZKRIEG
get
State to g
b d by
mbe
om
c rpet-b ti-crore
ca
ul
m
a
arred
b
-b
no-holds Who ar
ae
n.
n
c mpaig le be
ca
hind
b
op
the pe mega
the
e ?
s rategies
st
12

-VISITED: re.
furo
MURDER RE
AARUSHI ok creates national 18
bo
s
role
n
Avirook Se llai analyzes medias
ISING:
ADVERT Scent
Ajith Pi
NEWS ON
:
THE GO gers
Your fin
do the 30
walking

FILMS: h Menon
Rames s
review li

Bahuba
36

of sex

28

SOCIETY/ Muslims/Ghettoization

TRUST FACTOR
The well-to-do Muslims
looking for an upscale
accommodation are
turned away on
flimsy pretexts

NO CHOICE
In Delhi, Muslims are
forced to stay in places
like Batla House, in
Jamia Nagar

Minority
Malaise
The story of traditional Muslims
facing housing problems is an old
one. But now, even educated and
well-travelled Muslims are finding
the door shut in their face.
When will this polarization end?
By Sabiha Farhat

74

August 15, 2015

Anil Shakya

When you wipe your eyes see it clearly,


Theres no need for you to fear me,
If you take your time and hear me,
Maybe you can learn to cheer me,
Ghetto Gospel, a 2005 pop hit

ABASSUM, a 28-yearold vibrant, independent


woman, has just bought
herself a fully automatic
Volkswagen, her dream
car, without a loan. Ask
her how she managed to
shell out such a big amount and she looks
serious. She says she did so by continuing to
stay in a small, congested DDA colony even
when she could afford a better home.
She recounts the travails of looking for a
bigger, rented home. Her family consists of a

Anil Shakya

younger brother and a retired mother. As her


brother was also earning, they decided to
move to a bigger, better-located house from
the 2-BHK house they owned in an old DDA
colony in West Delhi.
They searched for six months for a 3-BHK
house in an upmarket society with the help of
property dealers but nothing materialized.
Finally, one landlord agreed to rent them the
house as his wife was the brothers ex-principal. They came to an agreement, but when
they went to pay the advance, the landlord
and his wife seated them and went to great
lengths to appreciate us Muslims. But she
refused to accept the advance.
The landlord explained that they had consulted their children abroad and they were
not in favor of renting out the house to
Muslims, says Tabassum.
She finally stopped the search as the
rejection was too strong, too much and too
humiliating. They continue to live in the
congested DDA colony.
Such stories show the increasing ghettoization in Indian society.

HOUSING ISSUES
A study done by TwoCircles.net, a non-profit
voice for marginalized sections, looked at
membership records of all housing societies
registered in New Delhi from December
2012 to October 2013 to find the percentage
of Muslims in them. There were 1,345 housing societies which had no Muslims, while
544 housing societies had less than 10 percent members as Muslims (See graphic). As
for Muslim dominated societies, there were
31 of them, where Muslims owned 90-100
percent of the houses. So essentially, there
were 1,889 (1,345+544) Hindu-dominated
societies versus 31 Muslim-dominated ones,
showing clearly that society was polarized.
This is a disturbing trend for the future of
plural India, says Kashif-ul-Huda, the founder member of TwoCircles.net.
While poor and economically deprived
Muslims were always at the lower end of the
social ladder and victimized, what is shocking today is that even upwardly mobile, welleducated Muslims like Tabassum are facing
the brunt of this blatant communalism.

While poor and


economically
deprived
Muslims were
always at the
lower end of
the social
ladder and
victimized,
today even
upwardly
mobile and
well-educated
Muslims are
facing blatant
communalism.
INDIA LEGAL August 15, 2015

75

SOCIETY/ Muslims/Ghettoization

Ghettoization has become a fashionable word


Increasing polarization in society has led to various ghettos. What is needed, says
Naseem Ahmad, chairman, National Commission for Minorities, is a social
movement to remove these schisms. Excerpts from an interview with Sabiha Farhat:

Why is it becoming increasingly


difficult for Muslims to find
houses in Delhi and Mumbai?
This malaise exists and even my own
family has faced it. And it is not confined to metros like Mumbai or Delhi. It
is prevalent everywhere. And the
excuses (given by landlords) are trivial,
including we want people who are
vegetarians. There are deeply ingrained

prejudices against Muslims. But what


should be done about it?

Is the Minorities Commission


involved in such cases and do
people come to you with
housing issues?
We are simply a watchdog, not a judicial
body. We dont prosecute people. We
highlight discriminatory actions of state

What does the law say?


Section 153B of the IPC is not enough
to take care of this kind of discrimination. There should be anti-discrimination laws with special bodies to take
cognizance of such matters. We need
to create space for equal opportunities.

Aiman, 30, the chief technology officer of


a Bangalore start-upwith degrees from
Delhi College of Engineering and University
of Chicagolearnt it the hard way. In 2012,
when he got married, he wanted to live near
his parents in Dwarka, Delhi. Soon he realized that his degrees, job and global lifestyle
could not help him find a house. He was
never directly denied a house. But after many
refusals, the only landlord who agreed to rent
him a house was a Muslim.

SECOND CLASS
CITIZENS?
Children playing in
the forecourt of
Jama Masjid after
offering namaz
on Eid-ul-Fitr

Perception fallout

UNI

Muslim members in housing societies


registered in New Delhi from
December 2012 to October 2013

No of housing
societies
1345
544
15
5
1
4
3
4
2
6
31

Percentage of
Muslim members
0
0-10
10-20
20-30
30-40
40-50
50-60
60-70
70-80
80-90
90-100
Source: TwoCircles.net

76

August 15, 2015

Ghettoization has become a fashionable


word. But it is not limited to just renting
houses. It includes schools and work
places too. So more than a judicial body,
what is needed is for civil society
to rise to the occasion. We need a
social movement.

PLATFORM FOR MUSLIMS


The unnerving fact that Muslims were turned away from renting houses despite their
buying capacity pushed Junaid and Hassan
Ali, two engineers from Aligarh Muslim University and IIT Bombay respectively, to create a housing portal.
Called Aligproperties.com, it is an attempt to help the Muslim community move
out of the ghettos. The website, launched on
January 1, 2014, already has over a lakh visitors. Junaid says: There are Muslims with
money struggling to find a good location with
modern facilities, such as sports arenas, gymnasiums, pools, parking space, greenery and
sanitation. They dont want to live in areas
like Okhla, Batla House or Daryaganj. We
offer them a platform to search for places
outside of Muslim areas.
Anees Saab is 75 years and lives with his
wife in up-scale Gurgaon. He says that every
time he puts up an advertisement to rent out
his second floor, a large number of Muslims
call him. Most have migrated to Gurgaon for
jobs. He says: Millennium city is, in reality,

bodies or non-state actors and recommend measures. That is our role. We are
neither implementing any welfare
scheme nor doing any financial intervention; that is done by the ministry. We had
a case in 2013 where a portal called 99
acres put out an advertisement for a
house that had a No Muslims tag. A
petition was filed and a notice issued to
the owners and proprietors of this portal.
They were asked to make some interventions so that the portal was free of such
objectionable and malicious content.
What happens in cases where it is

an orthodox society. It may deliver on the


promise of better jobs, but it certainly disappoints as a truly cosmopolitan city.
Then, there is Sehba whose story goes
back to 1999, when she tried to shift her
retired parents from Aligarh to Gurgaon. She
could not even get to meet the owners as her
surname was Imam. Fortunately for her,
her husband, Murli Gopal, took upon himself
the task of meeting the owners. Delhiites
like to give their houses to South Indians,
she says with a laugh. So, Murli convinced
one of the landlords to at least meet his inlaws. When they all met, the landlords
admitted that their perception was wrong.
In fact, they complimented us on being so
different, says Sehba. Of course, the irony of
how the faithful from one community was
willing to accept non-conformist Muslims
was not lost on her. While instances of such
segregation are only now being reported, the
trend started in the 90s. This was one of the
reasons why Murli and I bought our own
house within five years of marriage. It was a
humiliating experience.
CONTINOUS STIGMA
Ghettos, by definition, are places where stigmatized minorities live together, often in
poor housing conditions. Though those living
outside it are able to skip the poor housing
conditions, the stigma follows them everywhere. And with political dispensations saffronising society, the rift is wide. Sameena, a
student, says: When I was looking for a
maid, one of them started questioning me
about my eating habits. She actually asked

difficult to prove the bias?


I will advocate for a distinct anti-discrimination law, not only for Muslims but for
everyone. That is the need of the hour. It
will take care of all minorities. There
should also be a diversity index system,
which tests the strength of organizations
on the basis of the people they employ
from weaker sections or minorities. This
can be made mandatory, like CSR initiatives for companies. Civil society also
has to help. We need foras for inter-faith
dialogue and common celebration of
festivals. The atmosphere is too vitiated
now and something has to be done.

UNI

me if I ate beef? And this was 2-3 years ago,


much before the beef ban controversy. I got
so angry that I asked her if she was a
Brahmin? But I realized that she was a
mere tool in the hands of those doing this
polarization. Anju, a lawyer, corroborates:
I called up a maid bureau in Gurgaon and
was told that there were two maids available, a young girl and a middle-aged lady.
When I told him that I preferred a middleaged woman, the owner immediately told
me that she was a Muslim and that I should
let him know if I had any objections to that.
It was obvious that he had clients with religious preferences.
It is these narrow-minded practises that
will pull India down and make it a laughing
stock among world powers. IL

THE PRICE OF BIAS


Muslims in India pay dearly for
the deeply ingrained prejudices
against them

INDIA LEGAL August 15, 2015

77

INTERNATIONAL BRIEFS

Greece passes crucial bailout reforms


WITH THE passage of a radical set of
reforms by its parliament, Greece has
reached one step closer to reap the
benefits of bailout funds. The reforms
were preconditioned by European
Union for a 86bn bailout. Though there
were speculations of a rebellion by
the ruling party MPs, Prime Minister
Alexis Tsipras was able to gather sup-

Uber approaches
Europes apex court
AFTER A series of bans across Europe,
California-based online ride service provider,
Uber Technologies, has approached the
European Court of Justice (ECJ) to clarify
whether national transportation laws across
the region can be applied to online services.
Earlier, the company requested a Barcelonabased court to refer a similar case to Europes
top court. Uber claimed that outdated rules are
being used to favor already established taxi
companies.The ECJ is to decide whether Uber
is a transportation company or an online infor-

UAE criminalizes
religious intolerance

THE EMERGENCE of more and more


extremist groups and religious intolerance is
leading many countries to introduce strong
legislation to curb the menace.
The United Arab Emirates has formulated
a law to combat religious hatred and intolerance. Discrimination based on religion or ethnicity will be considered an offense. Labelling
the followers of other religions too has been
made a criminal offense. Encouraging hatred
through hate speech in all forms of media has
been proscribed in the new law. Provisions of
Imprisonment, from six months to ten years,
along with a penalty up to $ 5.5 lakh have
been included.

78

August 15, 2015

mation service. According to Uber, the latter


would strengthen its position. Under current
laws, European countries have full control over
transportation, though online services do not
come under these rules.

Surveillance law
annulled in the UK
THE UK High Court has ruled against the
emergency surveillance legislation passed
by the government last year, as judges found
it inconsistent with EU law. The litigation was
filed by Labour MP Tom Watson on the
ground that it lacked privacy safeguards. The
act was framed to regulate methods to be
used by investigative agencies to gain
access to communication data provided by
phone and internet companies.
Judges found two errors in the lawit did
not stress on the establishment of an authority which would ensure that only necessary
information is being examined. Two, there
was no definition as to what would qualify as
a serious offense in need of examination.

port to win the motion with 230 votes in


favor and 63 against it.
The reforms include higher taxation,
changes to banking rules and an
overhaul of the judicial system.
Representatives of the European institutions which would provide the bailout
have to soon begin the negotiations on
the terms of the deal in Athens.

NO
HOLDS
BARRED

es the
DILIP BOBB profil
who
intrepid reporter
76
exposed FIFA scam

JAYALALITHAA:
Surprising legal
challenge

28

SINGLE
MOTHERS
Supreme Court to the rescue

But
ORDINANCE RAJ:
why was SC/ST ? 66
.com
allowed to lapsewww.indialegalonline

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

10

WHO IS AFRAID

Former law mini

LK Adv

OF THE EMERGE

NCY?

ster HR Bhardwajanis fears spark off a nationa


, Seshadri Chari,
l debate
Justice Mukul Mud
gal, Rajeev

E
L EGAL
INDIAL EGAL
IDNanDgeIrAouLs EGAL INNDIA
THE NAME
DULAT
S
B
L
OMBER
UNPLUGGED
MEA
`100

June 30, 2015

www.indialegalonline.com
`100

July 31, 2015

July 15, 2015

Dhawan speak out


www.indialega

Atal Bihari Vajpayee

have
companieseno
and
Food product
ers long ugh
slew of
misled consum
continue their
can no moretion
20
.
misinforma

Farooq Abdullah

ucchh
muc
mu
ut m
ut
uueeess bbut
inues
in
ttin
tinu
ntin
nti
nt
oont
nt 2222
eent
ennt
men
me
m
riiaa ccon
pme
oria
lo
loppm
hhor
ho
eleelop
pho
pph
vve
velo
velelo
uuph
eve
eev
eup
eu
up eup
nd ddev
-up
-uup
aannd
d-u
ped
ppeeddwttthh and
wth
w
mpe
mp
m
oowt
ump
uum
row
rrum
ru
grow
hhee ttrum
The
Th
ooostt ggr
bboo
VYAPAM
onnee ttoo bo
one
on
be ddon
to be
:
ns to
ins
aains
maai
mai
m
eem
HORROR
rem
rreema
JUSTICE
SHIP:
CENSOR
up
Thumbs
rfor Ambedkay
Periyar Stud
Group 36

:
DHINGRA
Man
behind
Vadra land
probe 46

It is evident
Delhi does not
solid case that
have a
inst Modi, who
shaken up agapoli
certainly
tical blishas
forcing everthe
hme
yone to ducesta
k for cover 22nt,

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

Omar Farooq

SPECIAL:
Kashmirs

teleterroris
32 dead
and still
counting 50

m 44

AS Dulat

VYAPAM
HORROR:
More troubles
in Chouhans
kitbag 30

IIMs AND FTII:NJAC:


Mounting
Festerin
rebellion 48 controv g
ersy
10

BIKRAM
VOHRA:
Jungle law
in India 42

ONE RAN
K
ONE
PENSION:
Soldier
writes to
the
chief just
ice
of India
48

INDIRA JAIS
unplugged: ING
40

BANK
LIQUIDITY:
Wheres
the money
honey?
44

Lalit Modi

NEW TAR
GET
Successful S:
Dalits
57

Landmark Japanese
bill on defense
THE LOWER house of the Japanese
parliament passed two controversial
bills. The changes would allow
Japanese troops to fight overseas for
the first time since World War II. With
two-thirds majority in the upper
house, the government will be able to
pass the amendments successfully,
say experts. The amendments will
change the military doctrine called
collective self-defense to expand
the role of the military beyond the
political boundary of the country.
However, neighboring powers like
South Korea and China have
expressed concern over this shift, as
it may escalate tension in the region.
Moreover, even after the changes in
the law, Japans army would be able
to mobilize overseas only when
Japan is attacked and there is a
threat to its survival or when a close
ally is attacked.

Dont miss a single issue of this independent, scintillating new fortnightly


magazine and get special discounts for yourself and your friends
For advertising & subscription queries
sales@indialegalonline.com

SUBSCRIBE TO INDIA LEGAL


GET FABULOUS DISCOUNTS
HTb8f^d[S[XZTc^bdQbRaXQTc^8=380;460;\PVPiX]TU^acWT^UUTaX]SXRPcTSQT[^f
Tick one

Term (Years)

No. of Issues

Cover Price (`)

You pay (`)

You save (`)

% Saving

1 Year

24 Issues

2,400/-

1,200/-

1,200/-

50%

2 Years

48 Issues

4,800/-

1,920/-

2,880/-

60%

=P\T)0VT)BTg)
0SSaTbb)


2Xch)BcPcT)?X])
?W^]TATb)>UUXRT)T\PX[)
4]R[^bTS332WT`dT=^)3PcTS)3aPf])U^a`)
2PaS=^)BXV]PcdaT)
5^a^dcbcPcX^]RWT`dT_[TPbTPSS`$
332WT`dTc^QTSaPf]X]UPe^da^U4=2^\\d]XRPcX^]b?ec;cS
C^QTbT]cc^)4=2^\\d]XRPcX^]b?ec;cS0(BTRc^a%'6PdcP\1dSSW=PVPa=>830D?! "(
CTa\bR^]SXcX^]bP__[h?[TPbT_a^eXSTdb#fTTZbc^bcPach^dabdQbRaX_cX^]

28

lonline.com

`100

IS THAT LEGAL?

Nowadays, many Indian companies in the


electronics sector, market Chinese products
in India. If an accident occurs due to a defect
in the product, the consumer will drag the
Indian company to a court in India. But can
the Indian company marketing the product
take the Chinese manufacturer to any court
in India, China, or in any international court?
If the place of doing business is in India
or the office of the Chinese company is in
India, certainly the affected consumer in India
can file a case against the Chinese company

for compensation, as well as make the Indian


company liable for it.
At the same time, the Indian company
marketing the product may also sue the
Chinese producer in an Indian court under the
Indian Contract Act, 1982, for not meeting the
desired level of quality. Legal remedy may
also be sought under Sales of Goods Act,
1930 for damages, if any. In case the matter
comes up for arbitration before a neutral
party, the judgment or award is equally applicable for any foreign company.

the offense would still remain valid for


conviction.
As far as showing compromise in
films is concerned, a petition can be
filed in courts for injunction against such
films on the grounds of violating public
order and breaching morality.
However, criminal action may not be
initiated against filmmakers, as they can
easily claim their intention was to send
across the right message to the society.
After all, nobody can stop a rapist and
the victim from deciding to marry if they
wish to, and there is no harm if the
rapist accepts her with dignity. But the
offense remains liable for legal action.

3. Whos a blackleg?
A: Mine worker
B: Fraudster
C: One who works
during strike
D: Thief
4. She said: ATB.
A: All The Best
B: All The Boys
C: Away To Bank
D: Ask The Boss

Illustrations: UdayShankar

Action against civic bodies


It is not uncommon to find waterlogged drains during monsoons in
Delhi, resulting in a traffic mess. Every
year, civic authorities claim that they
have desilted major drains, but the city
is again submerged. Can they be
dragged to court?
Section 42 of the Delhi Municipal
Corporation Act mandates that it is the
duty of the municipal corporation to
clear drains and remove any obstruc-

80

August 15, 2015

1. Unwanted third
person.
A: Red herring
B: Gooseberry
C: Queer fish
D: Black sheep
2. Compulsion to steal.
A: Robomania
B: Automania
C: Hidomania
D. Kleptomania

Rape mediation in films


Recently, the Madras High Court judges
verdict suggesting mediation in a rape
case was criticized by legal experts.
Even the apex court has ruled there is
no scope for compromise. But we see
rapists marrying victims in several
movies. Can legal action be taken
against filmmakers for suggesting
compromise?
The legal standpoint on rape is that
the offense is non-compoundable. In
other words, the victim cannot enter into
a compromise with the accused and
agree to have the charges dropped
against him. Therefore, even if a rapist
realizes his mistake and agrees to marry,

tion. In case it doesnt happen, the


commissioner and the concerned officials may even be booked for criminal
action under the Act. Action can also
be taken against them for making
wrong claims.
If anybody suffers a loss due to
water-logging, the municipal corporation, under civil law, is bound to compensate him or her, in case a claim is
made and the negligence proved.

5. Shaggy-dog story.
A: Childrens story
B: Boring novel
C: Long joke with silly
end
D: Cartoon show
6. Ladys slipper.
A: Orchid
B: Skate
C: Necklace
D: Hatred
7. To lie doggo.
A: To brag
B: To relax

Have fun with English.


Get the right answers.
Play better scrabble.
By Mahesh Trivedi

C: To hide
D: To surrender
8. One pair is wrong.
A: Meat and eat
B: Fife and drum
C: Chalk and cheese
D: Cheap and nasty
9. Willy-nilly, pell-mell
but fiddle- .
A: middle
B: faddle
C: twiddle
D: riddle
10. Fear of the dark.
A: Photophobia
B: Necrophobia
C: Xenophobia
D: Nyctophobia
11. Just my luck!
A: I am lucky!
B: I am unlucky!
C: I trust my luck!
D: Only I am lucky!
12. Shooting the breeze.
A: Talking idly
B: Talking to corpse
C: Break wind
D: Taking a walk
13. Dead from the
neck up.
A: Sleeping
B: Stupid
C: Dead
D: Deaf
14. Correct spelling?

A: Millenium
B: Millennium
C: Milennium
D: Millenniam
15. A foxy lady is .
A: cantankerous
B: rich
C: unintelligent
D: sexually attractive
16. A curates egg.
A: Good in parts
B: Excellent
C: Rotten
D: Unbreakable
17. Profanum vulgus.
A: Foul language
B: Slum-dwellers
C: Petty thieves
D: Common herd
18. Necessity knows
no .
A. manners
B. law
C. time
D. status
19. Thrift is a great .
A: revenue
B: virtue
C: habit
D: art
20. Dull in the eye.
A: Partially blind
B: Eve-teaser
C: Drunk
D: Old man

ANSWERS

1. Gooseberry
2. Kleptomania
3. One who works during
strike
4. All The Best
5. Long joke with silly end
6. Orchid
7. To hide
8. Meat and eat
9. faddle
10. Nyctophobia
11. I am unlucky!
12. Talking idly
13. Stupid
14. Millennium
15. sexually attractive
16. Good in parts
17. Common herd
18. law
19. revenue
20. Drunk

Defective Chinese products

Y
L
D
R
O
W ISE

SCORES

0 to 7 correctYou
need to do this more
often.
8 to 12 correctGood,
get the scrabble
board out.
Above 12Bravo!
Keep it up!
textdoctor2@gmail.com

INDIA LEGAL August 15, 2015

81

PEOPLE / Age Of Innocence

BLISSFUL ABANDON
Children laugh as they swim with floats at a seashore
covered by algae, in Qingdao, Shandong province, China

HAND-IN-HAND
A boy sits next to a
Shin-chan model
during an exhibition
in Joy City, Beijing
HANGING OUT
Children at a park in Dharavi, Asia's
largest slum, in Mumbai

COWBOY ON WHEELS
A woman walks with her dog and child in
front of police vehicles, following a visit by
US President Barack Obama and German
Chancellor Angela Merkel in Kruen, South
Germany

82

August 15, 2015

CUDDLY MERMAID
A baby and her mother take part in the Mermaid
Parade on the streets of Coney Island in Brooklyn,
New York

DIVINE EMBRACE
Pope Francis holds a baby during
his weekly general audience at
Vatican City
Compiled by Kh Manglembi Devi
Photos: UNI

RNI No. UPENG/2007/25763

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


3ULQWHGRQ HYHU\PRQWK 3RVWHGDW6XE3RVW2IFH6HFWRU1RLGD