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India Legal 19 June 2017

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The document explores systemic issues of justice and accountability in India, particularly highlighting the societal oppression faced by women branded as witches due to property disputes. It contrasts the Indian political environment with the U.S. system, illustrating the challenges posed by political collusion and corruption, especially in law enforcement. The text draws parallels between historical events such as Watergate and contemporary issues under the Trump administration, emphasizing a crisis of governance and ethical standards.

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InvitationPrice `50 NDIA EGALL STORIES THAT COUNT June19, 2017 ` 100 I IT Sector: Future Shock? PEDKI DEVI, labelled a “witch” and publicly humiliated in 1999, is a subject matter in school books but still fighting for justice 18 years later, as the culprits roam free and continue to threaten her. The motive? Greed to grab her 12 acres of land Standing Counsels: Relative Values www.indialegallive.com Witches BrewBranding women as dayans across tribal belts in India is on the rise as greed for property, enmity and collusion by local officials overturns legal and ethical norms, aided by illiteracy and superstition
India Legal 19 June 2017
IVEN the nature of the Indian polit- ical system in which the doctrine of separation of powers—the corner- stone of accountable governance— lies supine at the altar of executive privilege, I doubt that we will ever see a tele- vised session of parliament in which a top law enforcement officer openly calls a prime minis- ter a liar and points the finger at him for trying to derail an investigation of collusion between his closest advisors and a hostile foreign power to influence the course of a general election. In India’s Westminster-style democracy, the legislature, for all intents and purposes, is a slavish extension of the executive (members of parliament are also ministers) and the execu- tive can hardly be expected to conduct an im- partial investigation into its own wrongdoings. The accountability process is further stymied by ministerial control of the bureaucracy, par- ticularly law enforcement. In these circumstances, obstruction of jus- tice, or targeted prosecution of political oppo- nents, is the everyday rule. Small wonder then that Indians were flab- bergasted by the spectacular real-time reality TV show in which a sacked FBI director surgi- cally rubbished the character and credibility of his former boss, the most powerful man in the world, no less than the President of Ame- rica himself. And that too in testimony be- fore the powerful 15-member US Senate Select Committee on Intelligence, comprising of Democrats and Republicans (the President’s own party). Public investigations by bipar- tisan Congressional committees are de rigueur in the American sys- tem. Senior administration officials are regularly hauled up on Capitol Hill to testi- fy under oath on the functioning of their departments and to answer charges of mis- feasance or malfeasance. Not all of them attract a great deal of press. But former FBI Director James Comey’s broadside against President Trump was singular in that it evoked memories of Nixon and Watergate in which the issue of obstruction of justice caused the late president to resign in disgrace. There is nothing remarkable about an FBI chief being fired by the president at whose pleasure he serves. President Bill Clinton also dismissed his FBI chief, William Sessions, in 1993 for proven misconduct. A president can dump the FBI boss with or without giving any reason. But there are sub- tleties in the American system. The FBI chief reports directly to the attorney general and not to the president. And FBI directors keep presi- dents at arm’s length, scrupulously guarding their autonomy as the top federal law enforce- ment and domestic counter-terrorism and counter-espionage officers. What is remarkable, however, is that Trump fired the man heading a criminal investigation into the president’s election campaign. “The FBI has gone after presidents before,” Tim Weiner, a Pulitzer Prize-winning journalist and historian told VOX, pointing to the Bureau’s probes of Richard Nixon during Watergate and Ronald Reagan during the Iran-Contra scan- dal. “But never has a president dismissed an FBI director when members of the president’s administration and members of the president’s campaign team were under investigation for colluding with a foreign power (Russia).” A mericans treat law enforcement as a religion. They also believe that public officials owe their loyalty to the consti- tution and not to their political bosses. And obstruction of justice, when proven at any level, receives zero tolerance, cutting across party lines. Did Comey accuse Trump of this? And did Trump obstruct justice? Did Trump demand personal loyalty over loyalty to the constitution? Those are the key questions being debated across America. In a lukewarm attempt to shield Trump from this charge, Senator James Risch, a Rep- ublican from Idaho, zeroed in on this point BINDING THE MINOTAUR Inderjit Badhwar Letter from the Editor | INDIA LEGAL | June 19, 2017 3 G
4 June 19, 2017 during the Senate hearings at which Comey testified. He wanted to know whether Trump had “ordered” or “directed” Comey to drop the probe of Michael Flynn, his national security adviser, whom he was forced to fire barely three weeks after being sworn in because he had not revealed his secret contacts with the Russians. This is how the exchange went: SENATOR RISCH: There’s 28 words (in your written statement) there that are in quotes, and it says, quote, “I hope”—this is the presi- dent speaking—“I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Now those are his (the president’s) exact words, is that correct? COMEY: Correct. RISCH: And you wrote them here, and you put them in quotes? COMEY: Correct. RISCH: Thank you for that. He did not direct you to let it go. COMEY: Not in his words, no. RISCH: He did not order you to let it go. COMEY: Again, those words are not an order. RISCH: He said, “I hope.” Now, like me, you probably did hundreds of cases, maybe thou- sands of cases charging people with criminal offenses. And, of course, you have knowledge of the thousands of cases out there that— where people have been charged. Do you know of any case where a person has been charged for obstruction of justice or, for that matter, any other criminal offense, where this — they said, or thought, they hoped for an outcome? COMEY: I don’t know well enough to answer. And the reason I keep saying “his words” is I took it as a direction. RISCH: Right. COMEY: I mean, this is the president of the United States, with me alone, saying, “I hope” this. I took it as, this is what he wants me to do. (CROSSTALK) COMEY: Now I — I didn’t obey that, but that’s the way I took it. RISCH: You—you may have taken it as a direc- tion, but that’s not what he said. (CROSSTALK) COMEY: Correct. I—that’s why... RISCH: He said—he said, “I hope.” COMEY: Those are exact words, correct. RISCH: OK, do you—you don’t know of any- one that’s ever been charged for hoping some- thing. Is that a fair statement? COMEY: I don’t, as I sit here. RISCH: Yeah. Thank you. R isch probably thought he had scored a point. Did he? Here’s the definition of Obstruction of Justice from the US Federal Legal Code: (a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United Sta- tes, or officer who may be serving at any examina- tion or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing mag- Letter from the Editor PLAIN TALK Former FBI director James Comey had the courage to take on his former boss Donald Trump in the US Senate Select Committee UNI
| INDIA LEGAL | June 19, 2017 5 istrate in his person or property on account of the performance of his official duties, or cor- ruptly or by threats or force, or by any threat- ening letter or communication, influences, obstructs, or impedes, or endeavors to influ- ence, obstruct, or impede, the due administra- tion of justice, shall be punished as provided in subsection (b). That definition does not require that there be a direct order that would quash or affect the investigation. “The key question here is wheth- er the president acted with corrupt intent,” Renato Mariotti, a former federal prosecutor, told CNN. O n a personal note, I covered the Water- gate scandal as a reporter in Washing- ton, and the present situation brings to mind a great American hero Senator Sam Ervin who chaired the Senate Select Commi- ttee on Watergate and brought down Nixon. I see analogies to the current Trump situation. Ervin was an uncomplicated, strict consti- tutionalist who believed the Social Contract and Rule of Law to be living entities. He came finally to the conclusion that Nixon and his top aides resorted to dirty tricks to weaken the Democratic Presidential campaign and incr- ease Nixon’s chances for winning in 1972. When information surfaced, Nixon and his cronies lied to investigators, resorted to cover- ups and got caught. Ervin opened his Commi- ttee’s hearings with these famous words still engraved in the minds of the reporters who covered that event: “If the many allegations made to date are true, then the burglars who broke into the Democratic National Committee at the Water- gate (apartment) were in fact breaking into the home of every American citizen…. And if these allegations prove true, what they were seeking to steal was not the jewels, money or other pre- cious property, but something much more valuable: the right to vote in a free election.” As Benjamin Wittes, editor-in-chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution, put it: “This is the Trump presidency. There is no evi- dence that any chains can bind this president: not lawyers, not norms, not procedures, not repeated screw-ups of the sort that educate other leaders, and certainly not the mere expectations of decent public servants. But the problem is that the United States is res- ponsible for his actions—and we are paying daily the price for them, particularly in our international relations but also in our domestic governance. It simply will not do any more for politicians to shield their eyes and say the equivalent of “even if Trump did act inappro- priately, and I’m not saying he did, it’s not my problem because he’s a beastly minotaur and no chains can bind him”. Today there is no Sam Ervin or anybody of his stature in the American Senate. Both hous- es are controlled by Republicans, some of whom blindly support Trump and some who maintain a studied silence. But exceptional cir- cumstances give birth to exceptional heroes. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com NO EXCEPTIONS (Left) The Senate Select Committee pinned Richard Nixon and his cronies for their unethical practices in the run-up to the 1972 elections (Below) The sacked FBI director surgically rubbished the character and credibility of the most powerful man in the world, US President Donald Trump UNI
Hunting for “Dayans” The reprehensible custom of branding single women and widows as witches and grabbing their property continues in various states. Are our laws strong enough to act as a deterrent? 14 LEAD FOCUS ContentsVOLUME. X ISSUE. 31 JUNE19,2017 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; 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, Ranchi-834002. 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. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Contributing Editor Ramesh Menon Associate Editors Meha Mathur, Sucheta Dasgupta Deputy Editor Prabir Biswas Staff Writer Usha Rani Das Senior Sub-Editor Shailaja Paramathma Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualizer Rajender Kumar Graphic Designer Ram Lagan Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Advertising Valerie Patton Mobile No: 9643106028, Landline No: 0120-612-7900 email: marketing@encommunication.org Circulation Manager RS Tiwari Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatSuperCassettesIndustiesLtd.,C-85-86&94,Sector4,Noida,Distt. GautamBudhNagar,UP-201301. Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Managing Editor (Web) Parsa Venkateshwar Rao Jr Editor (Content & Planning) Sujit Bhar Senior Content Writer Punit Mishra (Web) Technical Executive Anubhav Tyagi 6 June 19, 2017 All in the Family There is uneasiness about the appointment of standing coun- sels and advocates-general by various states since clout and lineage seem to be the decid- ing factors 20
STATES REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Ringside............................8 Delhi Durbar......................9 Courts.............................10 National Briefs................12 Media Watch ..................38 Satire ..............................50 Cover Design: ANTHONY LAWRENCE | INDIA LEGAL | June 19, 2017 7 Whose Tech Is It Anyway The ministry might be playing favourites in a row between Monsanto and Nuziveedu Seeds. But this isn’t the full picture 28 AGRICULTURE Tango with India As a new world order emerges, Modi will try to be the right man in the right place for Europe and the US. Will this give India an edge on the world stage? 46 DIPLOMACY “Govt Obliged to Share Information” CIC Dr MS Acharyulu, who recently asked a post office to disclose data on demoneti- sation, says policy decisions that impact the lives of people should be made public 36 INTERVIEW How Democratic Is My Country? Public institutions are increasingly found lacking in moral courage to stand up to the Executive. This is undermining the functioning of India’s system of governance 44 BOOKS Jaipur Palace Wars Though the Supreme Court has settled this protracted feud over five-star heritage hotels, secret machinations by rival royals may yet disinherit the true heirs 40 PROPERTY Faith and Probity The Kerala High Court has directed AIIMS to let Muslim women wear the hijab while writing the MBBS entrance 26 24Murder Most Foul The killing of a Congress lawmaker has again brought to light the practice of political vendetta in MP Survival of the Smartest With the IT industry going through another churning, the only way to sail through is to innovate and learn new skills or face the sack 32 TECH
8 June 19, 2017 “ RINGSIDE These fireworks have no effect on Iran. They will soon be eliminated .... They are too small to affect the will of the Iranian nation and its officials. —Iran's supreme leader Ayatollah Ali Khamenei, reacting to the bomb and gun attacks in Tehran on June 7, as quoted on Iran's state TV I am convinced the Paris Agreement and broad cli- mate action is unstoppable. President Trump’s decision has given us a new sense of urgency. It’s also created a leadership vacuum, but like all vacuums, it will be filled. —Executive Director of the United Nations Environment Programme Erik Solheim, in The Times of India In terms of my political writing, very often, I actually feel even more rage than I show through the work. When I write fiction, I’m in my body [as] a very different person. There’s a great peace in me when I write fiction. —Author Arundhati Roy, in an interview to www.slate.com I am looking at women coming in as jawans. I am going to start it soon. Firstly, we will start with women as military police jawans... We have already started the process and women will now have an opportunity to show their grit and strength in tak- ing up challenges in com- bat roles and shattering the glass ceiling. —Army chief General Bipin Rawat, to PTI NDTV isn’t an overnight phenomenon, even they know that. If you are so eager to finish us, then Sir, some day, let’s sit across each other. We’ll be there, you’ll be there and so will be a Live Camera. —NDTV journalist Ravish Kumar, on his Facebook page Alleged that Roys owe banks `48 crore. Adanis owe banks 72,000 crore. May we expect Gautam bhai to be raided next? —Historian Ramachandra Guha, on Twitter Triple talaq is an enormity; it is a legacy of a pre- Islamic Arabia…. This obnoxious practice must be put an end to, as has been done in almost every Muslim country. The Indian Muslim man is no special creature to continue to have this special right. —Former Union minister Arif Mohammad Khan, in The Indian Express Any change in an entrenched interest, who- ever it be, is discomfort- ing. But law of change goes on. It’s universal. —Puducherry governor Kiran Bedi, on Twitter
| INDIA LEGAL | June 19, 2017 9 The Congress Working Committee meeting last week gave a hint of where the party is headed. The long-awaited decision to elevate Rahul Gandhi as Congress party president this October was not as unexpected as Sonia’s message. She appar- ently took some select- ed leaders aside and informed them that her ill- health did not allow her to carry on as president and doctors have suggested she move to the hills where the air is cleaner. In fact, the CWC meet was held in her house, not the party headquarters, an indication of her restricted move- ments. It is a measure of their respect for her bind- ing force and political acu- men (or lack of it in the case of the son) that the leaders asked Sonia to continue to oversee party strategy and progress. She is likely to move to the house being built in Chharabra, near Shimla by daughter Priyanka, which is almost complete. Her favourite summer getaway is Kausani in the Uttarkhand hills where a close family friend has a house but for a lengthier stay in cooler climes, Shimla makes more sense. It has already been sur- veyed by the SPG. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Finance Minister Arun Jaitley, who also handles the defence portfolio, is finding his hands are too full. So, every now and then he skips functions which a rak- shamantri is expected to attend. Last fortnight, at the last minute, he pulled out from an Indian Navy-FICCI conference on Warship Building which is an annual event normally presided over by the defence minis- ter. Jaitley’s inability to make it to the meet not only underlined how busy he is, but also how important it is to have a dedicated person handling the defence portfolio. Perhaps the cabinet reshuffle, predicted to follow the Presidential polls may bring relief to Jaitley and several others with multiple ministries under their charge. An inside track on happenings in Lutyen’s Delhi Delhi Durbar FINALLY, THE CORONATION SINGH IS NOT KING It now appears that the controversial notification regarding curbs on the country’s cattle trade was because of a procedural goof-up and a premature death. The notification was issued five days after Environment Minister Anil Madhav Dave passed away unexpectedly. It was Dave’s brainchild and his successor, Dr Harsh Vard- han, was still finding his feet when, two days later, the notification, signed by Dave, was issued. Dave was a member of the RSS and the decision was in tune with his world view. However, in a proce- dural faux pas, the file was never shown to his suc- cessor with bureaucrats assuming it had the approval of higher-ups in the government. CATTLE CONFUSION DOUBLE SHIFT One of those present at the CWC meeting was in for some good-natured ribbing. Former Prime Minister Manmohan Singh is to be resurrected in that role, albeit in celluloid. The biopic on his tenure is already being shot and is loosely based on the book, The Accidental Prime Minister by Sanjaya Baru, his former media adviser. Dr Singh will not be pleased with the choice of the actor who will play him—Anupam Kher, who has been a staunch supporter of the Modi government. The Congress is not happy either; the film’s title is the same as the book which did not show Dr Singh in a good light, or Sonia, for that matter. Plus, it is due for release in December 2018, shortly before the next Lok Sabha elections.
The centre and Manipur submitted in the Supreme Court that allegations levelled against Manipur CM N Biren Singh by the parents of a youth shot dead by Singh’s son 2011 were false and made-up. They alleged that there was a clear attempt to sensationalise and extract publicity out of the case. Biren Singh’s son Ajay Meetai had in March 2011 shot Irom Roger for over- taking his car. Irom later died of bullet wounds. An Imphal court had held Ajay guilty of culpable homicide and senten- ced him to a five-year jail term. Later, Ajay had moved the Manipur High Court for bail but the petition was challenged by Roger’s mother. The Supreme Court is hearing the appeal of Irom’s mother Chitra Devi who said that Singh was using his official clout to threaten them and had even roped in terror organisations to browbeat them from pursuing the case. They had pleaded for protection in Manipur and claimed that they had to leave the state and come to Delhi. They also alleged that no lawyer was willing to take up their case in the state. The apex court had asked the centre to arrange for their security. The Manipur government assured the Court that security cover under Manipur rifles had been provided to the parents and the social activist who brought the case into the limelight. The centre told the court that the lawyer appearing for the parents, Utsav Singh Bains (a Supreme Court lawyer), would also be given security dur- ing his appearances in the high court. Bains had allegedly received threats from the People’s Liberation Army. However, the state government claimed that the allegations were found to false after scrutiny. According to it, the Manipur Bar Association also refuted Chitra Devi’s complaints that lawyers in Manipur were not fighting her case. The apex court will hear the matter again in July. Punish TN milk adulterators The Supreme Court refused to respond to the plea of advo- cate Mathews J Nedumpara, who wanted a stay on a jail term awarded by the apex court to his client, Justice CS Karnan of the Calcutta High Court. Karnan is yet to be arrested as per Supreme Court’s order on May 9 which had held him guilty of contempt and awarded him a six-month jail term. The vacation bench said it cou- ld not interfere in the order passed by a seven-judge bench and asked the counsel to seek relief from the same bench. Earlier this month, the Court had declined to list the matter and to look into Karnan’s plea for annulling the jail order on maintainability grounds. Karnan has remained untrace- able to police teams from West Bengal and Tamil Nadu till date. Courts 10 June 19, 2017 Centre, Manipur flay Irom’s mother Pointing towards reports about rampant adulter- ation of milk by private milk companies in the state, a petitioner pleaded in the Madras High Court that the punishment mandated in the IPC for adulteration be incr- eased to life imprisonment. Advocate AP Suryaprakasam wanted the High Court to ask the government to amend Section 272. Citing statements made by the dairy development minis- ter of the state—who had admitted that private milk suppliers were indeed adulter- ating milk—the petitioner blamed the state government for its laxity in taking strong action against adulterators and for not stopping the practice. The High Court took str- ict cognizance of the issue and instructed the state gov- ernment to update it on the action taken so far. The government was also asked to file its response within two weeks. The government, on its part, assured the Court that a panel would be formed to look into the matter. The case is listed for June 19. No relief for Karnan
The Ministry of External Affairs must inform all embassies, consulates or high commissions that people coming to India must be well versed with Indian laws, especially regarding possessing arms, so that they do not get into unnecessary trouble, the Delhi High Court observed. The Court was referring to “frequency of registration of such cases as at hand…” The Court’s observation came while hearing sub- missions for quashing FIRs against two foreigners (one from the UK and another from Kenya) under Section 25 of the Arms Act 1959. Although they had come to India under legal visas, bullets were found on them while they were leaving India. The Court was convinced that there was nothing to prove a “conscious possession” of bullets by the foreigners. It also noted that the bullets could not be used as the persons concerned were not carrying any firearms. The government’s lawyer too informed the Court that the petitioners did not know that they were carrying bullets. The FIRs were dismissed. Foreignersmustknow aboutIndianlaws Senior BJP leaders LK Advani, Murli Manohar Joshi and Union minister Uma Bharti were spared from attending the Special CBI Court in Lucknow daily for hearings in the Babri Masjid demolition case. The Court is hearing the case on a day-to-day basis. However, they would have to appear whenever the court asks them. All the three had pleaded against daily appear- ances. While Advani and Joshi cited old age, Bharti submitted that she had to travel extensively due to her ministerial duties. The Supreme Court had earlier revived conspiracy charges against all three and ins- tructed the Court to complete hearings and give the ruling within two years. Later, the special CBI Court had framed charges against all three and nine others. Empathising with prosecutors dealing with cases under the Prevention of Children from Sexual Offences (POCSO) Act because of the pathetic conditions they work in, the Delhi High Court sought a report from the AAP government in July on work environment and appointments. The Court was at pains to high- light the fact that these prosecu- tors were not even provided a private space to enable them to do “seri- ous lawyering”. They need to draft applications, replies, submis- sions, refer to vari- ous legal docu- ments, talk to clients, prepare cases, get in touch with probing officers and scrutinise records. For this, privacy is essential, the Court pointed out. It lamented that prosecutors could not be allowed to function from open spaces in court premises. How could prosecutors take on top lawyers from the other side during hearings without proper home- work, the Court asked. Aclutch of petitions plea- ding for a stay on the centre’s recent notification banning the sale of cattle for slaughter in livestock markets were struck down by the Kerala High Court recently. The matter will now be taken up by the High Court on June 28 for quick disposal. Responding to a PIL from You- th Congress State Secretary TS Saji, the High Court observed that the new rules were only related to trading of cattle for slaughter and there was no restrictions on slau- ghtering cattle or eating beef. The Court had earlier asked the centre to file its response on ques- tions raised on the after-effects of the new rule, but the centre did not get back at the time of hearing. The Court said it would wait for the centre’s reaction before taking up the petitions. It asked the centre to respond before the next hearing. The Supreme Court too will hear objections to the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 (Rules) on June 15. A man from Hyderabad, Moha- mmed Abdul Faheem Qureshi, had approached the apex court and claimed that the rule was uncon- stitutional. The Madras High Court had earlier slapped a stay on the cen- tre’s notification for four weeks. | INDIA LEGAL | June 19, 2017 11 — Compiled by Prabir Biswas Advani,Joshi,Bhartigetrelief Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Batting for POCSO prosecutors No stay on centre’s cattle slaughter order
12 June 19, 2017 Briefs Following Attorney General Mukul Rohatgi’s temporary extension, the ten- ure of five other senior law officers has also been exten- ded. The extension is expec- ted to be for two years, but the interim order says it was extended “till further orders”. The terms of Solicitor Gen- eral Ranjit Kumar and Add- itional Solicitor Generals Maninder Singh, Tushar Mehta, PS Narasimha, PS Patwalia and Pinky Anand have been extended. Only ASG Neeraj Kishan Kaul’s term was not extended, keep- ing in mind his letter to the government which said he wanted to be relieved from the assignment. As per the new order of Uttar Pradesh DGP Sulkhan Singh (below) any individual or group suspected of killing or transporting cattle for slaughter, will make it nec- essary to invoke National Security Act (NSA). The Act allows detention of any per- son for three months or more. The order was issued to all police officials present in a meeting in Lucknow on June 5. Singh said that the NSA, 1980, or Gangsters Act must be invoked against criminals indulging in cow slaughter or transporting cows for the same. The DGP has ordered the officials to make sure that the criminals do not get bail. NSA against cow slaughter in UP The government will appoint 44 judges to different high courts across the country. The names had earlier been returned by the govern- ment to the collegium for reconsideration. However, the collegium has been able to coax the government in taking them back. The appoin- tees include 29 judges to the Allahabad High Court, two to the Karn- ataka High Court, seven to the Calcutta High Court and six to the Ma- dras High Court. This was the second time the list was resubmitted to the government by the collegiums headed by Chief Justice JS Khehar (left). So far 17 judges have been appointed to the Bombay and the Jammu and Kashmir High Courts. Lawofficersgetextension The NGT has barred nine state pollution control board heads for failing to submit compli- ance reports of appoint- ments of chairpersons and member secretaries in the boards. The vacation bench, headed by Justice RS Rathore ordered board chiefs of Himachal Prad- esh, Haryana, Uttara- khand, Rajasthan, Kera- la, Sikkim, Tamil Nadu, Telangana and Maha- rashtra to stop function- ing, effective immediately. The judge said: “The judgement was delivered in August last year and you had to file compli- ance report in three mon- ths...We had given you ample time for complying with our directions.” A three-month grace period was granted to Delhi and two months to Punjab and UP. The mat- ter is listed for July 4. Govt to appoint 44 HC judges Punjab judge objects to “your ladyship” NGT bars 9 state pollution heads The practice of doing away with the use of “Your Lord- ship” while addressing judges has been a subject of discus- sion; it is seen as a relic of col- onial rule. An interesting ex- change between Justice Daya Chaudhary (below) and Advo- cate General Atul Nanda in the Punjab and Haryana High Court brought up the issue to the fore again. Nanda addre- ssed Justice Chaudhary as “Your Ladyship”. Justice Chaudhary objected to this, saying that it is “Delhi culture” and it won’t work in the Punjab and Haryana High Court. She also said that judges and advocates have no gender and they are not to be addre- ssed as lady judges or lady advocates. Solicitor General Ranjit Kumar
| INDIA LEGAL | June 19, 2017 13 —Compiled by Lilly Paul Twitter: @indialegalmedia/ Website: www.indialegallive.com Contact: editor@indialegallive.com Recently, the Madras High Court issued notice to the Tamil Nadu animal husbandry department over a petition filed by M Ravikumar, a part-time sweeper at the Vellodu sub-centre for the past 17 years. Ravikumar is working in the sub- centre since July 20, 2000, on a meagre salary of `2 per day without his services been regularised. The department had issued notification for vacancies to the post of assistants without considering his case. The Court, in its notice, mentioned that it was “inhuman” on the part of the government to keep poor employees like him unregularised for decades. Sweeper moves Madras HC The Supreme Court on June 9 directed that the government can- not force anybody to link his Aadhaar to his PAN for the purpose of filing his or her Income Tax Return. This also means that PAN remains valid even without Aadhaar. Despite this being an interim order—with the larger con- stitution bench to take it up later—it is a big defeat for the government which introduced this rule through the back door, in the form of Section 139AA, inserted into the Income Tax Act by the Finance Act, 2017. The Court also requested the legis- lature to “tone down” the provisions of the section. It also rejected argume- nts by petitioner Binoy Visman that this is violative of one’s Fundamental Rights. The Court did not touch all arguments associated with Article 21 as they are still pending with the lar- ger bench. No need to attach Aadhaar to PAN: SC Justice Ajay Kumar Mittal of the Punjab and Haryana High Court is set to be the next Chief Justice of the Delhi High Court. The post is current- ly handled by Acting Chief Justice Gita Mittal. However, this decision of the Supreme Court collegium, as reported in the media, cannot be put in practice before September. The sitting judge of the Delhi High Court, Justice SS Saron, is senior to Justice Ajay Kumar Mittal and technically the person due for the post. However, Justice Saron is retiring on September 3, which is why the new incumbent will take over after that. Justice Mittal to be Delhi HC Chief Justice Former chief ministers of Bihar, Lalu Prasad Yadav and Jagannath Mishra, appeared before a special CBI court in Patna in the fodder scam case. The case is related to the fraudulent withdrawal of `47 lakh from Bhagalpur treasury during the financial years 1993-94 and 1994-95. The CBI had regis- tered a case and filed a PIL against Lalu and Mishra, along with 42 others. The Supreme Court ruled last month that Lalu will have to stand trial in all the four fodder scam cases. Ahead of introducing an amendment bill in the parliament, the government is working towards fixing flaws of the Lokpal and Lokayuktas Act, including capping of the jurist member’s tenure. Currently, the tenure of the jurist member, who would be appointed by the prime minister-led selec- tion committee, is not certain. The ministe- rial panel is reportedly considering fixing the tenure to three years. The panel has noticed that the law has not specified basic details, such as the location of the Lokpal office and secretariat. Govt to fix flaws of Lokpal Act Ex-Bihar CMs appear before CBI
Lead/ Witch-hunting 14 June 19, 2017 Y name is Pedki Devi. I live in a village in Jharkhand. When I was 15, I was married off. My eldest daughter was born three years later and subsequently, I gave birth to three more children. When I was 35, life came to a standstill when my husband died after an illness. Following that, my husband’s brothers tried to seize our land. They beat me up brutally and labelled me a witch. I filed a case against them. At the age of 40, I saw a police station for the first time. I learnt how to read and write at the age of 45. Now I am 50 years old.” This testimony is not recorded in a police report but is part of a math text- M“ Singlewomenandwidows areoftenbrandedaswitches tohumiliateandostracise themandseizetheirproperty. Whydoesthisreprehensible practicecontinueunchecked andareourlawsstringent enoughtoproviderelief? By Shankar Sinha and Meha Mathur 18-YEAR-OLD STRUGGLE Pedki Devi (right) labelled as a “witch”; (below right) a textbook chapter on maths in Jharkhand sketches her tragedy Diabolic Persecution
licly humiliated. Neighbours are either unwilling to talk about the incident or are petrified to express their support. One aged woman who saw Pedki Devi distraught on the ground, covered with excreta over her face and had offered her water, now categorically denies she saw any crime being committed. She says she had merely offered water to a woman in distress. And one of the accused, Srikant Mahato, denies being present in the vil- lage on that fateful day in 1999. He also denies that he or his family members were after Pedki Devi’s property. But the truth lies elsewhere and it came into the public domain because Pedki Devi filed a case and decided book, Ganit ka Jaadu (The Magic of Maths), of the Jharkhand Education Project for Class III students. And the unfortunate story is followed by an exer- cise in which students have to mark, next to an illustration of a woman, the milestones of Pedki Devi’s life. The cruelty of it is that it is not fic- tional. The real life Pedki Devi is still running from pillar to post to get justice against the atrocity perpetrated against her in 1999. Like so many other cases of crimes against women being relegated to mere statistics, this case too has been reduced to an exercise in a textbook for school students. But the humiliation and cruelty that Pedki Devi of Kherabera village endured in March 1999 has not been captured in the bland account in the textbook. She can, however, still recall the day when her husband’s brothers pounced on her as she was returning from the fields. They dragged her and stripped her, forced her to ingest excreta and urine and beat her mercilessly. They conve- niently branded her a witch—the evil force that killed her husband. When her daughters saw their moth- er being assaulted, they rushed to her rescue, but they too were beaten up. One of them, Purni, suffered a miscar- riage as a result. Pedki Devi spoke to India Legal’s sister channel APN, about the pain and humiliation meted out to her some 18 years ago. And as she faced the camera in front of her ramshackle mud home, one could see the 12 acres of land which had become the bone of contention. Pedki Devi vividly remembers the spot where she was pub- | INDIA LEGAL | June 19, 2017 15 Brandingwomenaswitchesismoreofatoolusedbylandgrabbersto deprivefamiliesoftheirproperty.Itisalsousedasaweaponof revengeagainstwomenwhorefusetoyieldtosexualadvances.
she would not take the humiliation lying down. In 2004, a trial court sentenced the culprits to one to four years in prison. But they went in appeal to the Jharkhand High Court which granted them bail. CASE DITHERS Unfortunately, Pedki’s lawyer dithered, for reasons best known to him, in pursu- ing the matter in court. He did not inform his client about the hearings and as a result, she failed to turn up in court twice on appointed dates. The case soon lost direction. Meanwhile, the embold- ened in-laws began to openly threaten Pedki and her family with dire conse- quences. There are allegations that they may have had a hand in ensuring that the case languished in the courts. It is clear that seizing property was what motivated the in-laws to label Pedki Devi a witch. While rural soci- eties, where superstition reigns supreme, do resort to occult practices to “neutralise” evil forces or for healing purposes, the branding of old and wid- owed women as witches is a matter of convenience. Often, the real motive is to throw them out of their property or to abandon them if they are becoming a financial burden for the family. Arun Kumar Naik of Jeet, an NGO that is working in Jharkhand, explains the modus operandi: a scare is deliber- ately created around a person, usually an old destitute woman. At times, young women are also targeted as witches, and in such cases, the motive is more often than not sexual exploitation. Once branded, the woman becomes an outcast in her own village 16 June 19, 2017 T here are several laws that deal specifically with witchcraft and “witch” related offences. The first was the Prevention of Witch (Dayan) Practices Act 1999 enacted by Bihar. Later, when Chhattisgarh and Jharkhand were created in 2001, they too enacted laws to address the witches issue. Both adapted the 1999 Act. Jharkhand introduced the Prevention of Witch-hunting (Dayan Pratha Act) in 2001 and Chhattisgarh passed the Tonahi Pratadna Nivaran Act in 2005. Later, some other states followed suit. It was a high court directive to Odisha that led to the enactment of the Odisha Prevention of Witch-hunting Act 2013. The Odisha initiative was followed two years later by Rajasthan passing the Rajasthan Prevention of Witch-hunting Act 2015. In the same year, the Assam Witch-hunting (Prohibition, Prevention and Protection) Bill was passed and awaits enactment since it was sent back to the state by the Union home ministry for review. Two bills—the Maharashtra Prevention and Eradication of Human Sacrifice and Other inhuman, Evil and Aghori Practices and Black Magic Bill and the Karnataka Prevention of Superstitious Practices Bill—have been passed but not yet enacted. Both address the problem of witch-hunting. So far so good. But the big question is how effective are the enacted laws on the ground? Partners in Law, a Delhi- based legal resource group working in the fields of social justice and women’s rights, conducted an 18-month study in Jharkhand, Bihar and Chhattisgarh. Their 2015 report—Contemporary Practices in Witch-Hunting: Social Trends and Interface with Law—spells out the prob- lem areas in laws dealing specifically with witch-hunting. The study reveals what is wrong with the criminal justice system. For example, in one-third of cases, the victims never approached the police or were prevented from doing so by vested interest or rela- tives. Many of the cases registered were closed because of shoddy investigation, lack of evidence and witnesses or a compromise being worked out between the victims and the perpetrators. It is only when publicly orchestrated violence occurred that the police took it seriously. To quote the report: “Based on our data, we can infer that the law inter- acts with victims only when physical vio- lence involving public humiliation is involved, but such cases do not proceed to the appellate courts unless they per- tain to or result in murder.” In short, the state does not normally appeal against acquittal in cases of witch-hunting. According to the report, the special laws on witch-hunting on paper focus on preventive action and addressing harassment where the motive is clearly linked to “witch” accusation. These laws criminalise the acts of “identifying” and “exhibiting” any person as a witch along with the mental and physical torture which accompanies it. All the offences under the special laws are cognisable and non-bailable. They seek to prevent escalation of victimisation through early intervention by the police. H owever, very few reported cases are registered under the new laws. The study examined 85 FIRs and found that only six were registered solely on the basis of special laws. Notes the report: “The data categorically shows that the mischief that the special law was enacted to correct remains unaddressed, with no action or prosecution against preliminary forms of harassment. In fact, the data establishes that special laws are rarely, if ever, used alone, and almost never at the preliminary stages to pre- vent escalation of violence. Our data from police records show that almost all cases are registered under provisions of the Indian Penal Code (IPC), with one or more provisions of the special law, to establish if it (witch-hunting) were the motive of the crime. The majority of the provisions of the IPC invoked in the records are related to beating, hurt, tres- pass, theft, murder, conspiracy, etc—with more bailable rather than non-bailable offences being invoked.” According to police officials, the IPC is invoked since the special laws are not comprehensive enough to deal with LawsandLimitations Lead/ Witch-hunting
| INDIA LEGAL | June 19, 2017 17 defamation, trespass, intimidation, van- dalism, destruction of property or mur- der. So, even when the new laws are invoked, it is in conjunction with the IPC. The police find it easier to frame their cases under the existing laws. S ashiprava Bindhani, Odisha’s infor- mation commissioner, who filed a PIL in the High Court which led to the enactment of the special law in the state in 2013, speaks of how women who break from conventions are usually the targets of witch-hunts. “Having grown up in the Mayurbhanj district of Odisha, I observed the exploitation per- petrated through witch-hunting against women who threatened social struc- tures.” She is of the view that since the legislation has come there is some change--cases are being registered and people are sympathetic to the victims. However, legal experts do not see any dramatic change. So, have the special laws helped? Madhu Mehra, executive director of Partners in Law, and Anuja Agarwal, associate professor, department of soci- ology at Delhi University in a joint paper published in The Economic and Political Weekly have this pertinent observation to make: “The parading of women, ton- suring the hair and blackening the face are forms of violation that involve more than physical injury, as they intend and result in humiliating the victim, destroying her social standing and dignity in the community. These need to be part of the penal code, given their social reso- nance—although largely associated with caste atrocities perpetrated against Dalits, there is increasing evidence that such victimisation is also used to punish social and sexual transgressions, which may or may not take the form of witch-hunting.” Thus, the new laws may have filled a legal vacuum but do not look at the socio-economic situation that encour- ages witch-hunting. It is known that it thrives in areas where there is lack of education, economic depravity, health facilities and access to justice. But the criminal justice system continues to see the malaise as one rooted in irrational, barbaric practices and superstition. This is even reinforced in several judgments, one of which calls it a tribal custom of the “Middle Ages” which is perpetuated till today. Any law or amendments made to an existing Act has to factor the socio-eco- nomic context rather than see witch- hunting as merely an irrational act guided by superstitious beliefs. Also, the motives for witch-hunting have changed over the years. Laws have to take into account the present- day reality. Illustration: Anthony Lawrence
and is ostracised. The problem is not endemic to Jharkhand alone. One hears similar stories from across the country—of women being branded as witches and blamed for the death of a family mem- ber, the failure of a crop or any other untoward incident. SOME EXAMPLES Here are a few illustrative instances: Badar village, Balrampur district, Chhattisgarh, 2016: A 35-year-old woman is beaten to death by her broth- er-in-law and his son on suspicion that she is responsible for a child’s death Mayangi village, Odisha, 2015: A 35- year-old woman is accused of being a witch and forced to eat excreta Anglong district, Assam, 2014: A gold medalist in javelin who represented the state in several national meets, is tied up in a fishing net and brutally beaten up by villagers on suspicion that she indulged in witchcraft Smit village, Shillong, Meghalaya, 2013: Twelve persons arrested for the lynching of three in a case of witch hunting. The accused were reportedly related to the victims The statistics from various states on witchcraft-related murders is, to say the least, shocking (see box). However, the situation in Jharkhand is the worst. Social activist Ajay Kumar Jaiswal, who has been working at the grassroots level in the state for the last 26 years says that his team surveyed 332 villages last year and found 300 cases of women being harassed as witches. He says: “Jharkhand has 32,000 villages and every village has such cases. So, thou- sands of women are suffering. We need a very big awareness campaign to eradi- cate this problem.” Dr Louis Marandi, Jharkhand’s min- ister for social welfare, women and child development and minority affairs says the government is doing its bit through campaigns using street theatre and workshops. But, she admits it will be a long haul: “We can’t eradicate the prob- lem completely. We can’t be watching over people 24 hours a day,” she says adding that she has no knowledge of the Pedki Devi case. “If you give us all the papers and her story, we will try to pro- vide her protection through the local administration.” Jharkhand is among the few states to have enacted a specific law—the Prevention of Witch Practices Act, 2001. Other states also have laws in place to counter the malaise (Accompanying story). But these have not had the desired impact. This is perhaps why activists like Jaiswal point out that the new law is not an effective deterrent in Jharkhand. “One year of punishment and `2,000 as 18 June 19, 2017 Lead/ Witch-hunting Tribalsocietiesalwaysbelievedin goodandevilspirits.Thegood spiritsauguredwellnessandheal people.Theevilforcescould wreakhavocandcausedisasters. “Medicalfacilitieshavenotreached manypartsofthecountry.Andin Jharkhandthereisadeep-seatedbelief thatsomepeoplehavethesupernatural powerofhealingaswellasdestroying things.So,ifsomethinggoeswrong youendupblamingthatperson.” —SubhashMendupurkar,directorof theSocietyforUpliftmentthrough RuralAction “Wecan’teradicatetheproblem completely.Wecan’tbewatching overpeople24hoursaday...Ifyou giveusallthepapersandPedkiDevi’s story,wewilltrytoprovideherprotec- tionthroughthelocaladministration.” —DrLouisMarandi,Jharkhand’s ministerforsocialwelfare,women andchilddevelopmentand minorityaffairs “Jharkhandhas32,000villages andeveryvillagehassuchcases. So,thousandsofwomenare suffering.Weneedaverybig awarenesscampaigntoeradicate thisproblem.” —AjayKumarJaiswal,socialactivist whohasbeenworkingatthegrass- rootslevelinthestateforthelast 26years
fine is hardly a punishment.” According to him, a more stringent punishment is required like the Rajasthan Prevention of Witch-Hunting Act, 2015 which pro- vides for seven years rigorous imprison- ment extending up to a life term, and/or `1 lakh fine. This, he said, is more in keeping with the nature of the crime. THE ORIGINS Tribal societies always believed in the tradition of good and evil spirits. The good spirits, it was believed, could bring about wellness in the community and heal people. The evil forces, on the other hand, could wreak havoc and cause nat- ural disasters like floods, famine, disease or drive away the rain. In tribal commu- nities, it was a woman who was endowed with the power of healing. However, the line between good and evil was always a thin one. Traditionally, it was the all-knowing “Mahan” or seer of the village who identified the woman with the evil force residing inside her. She would be branded as a witch, parad- ed naked and killed and her family members ostracised. Anthropologists like KS Singh, former director of the Anthropological Society of India, have been quoted as saying that the concept of black magic and white magic got fur- ther underlined after India became colonised by the European powers. Subhash Mendupurkar, director of the Society for Upliftment through Rural Action (SUTRA), has worked extensively in Jharkhand. He traces the problem to lack of medical care. “Medical facilities have not reached many parts of the country. And in Jharkhand there is a deep-seated belief that some people have the supernatural power of healing as well as destroying things. So, if something goes wrong you end up blaming that person. Once mod- ern medical facilities are made accessi- ble such beliefs will fade away,” he says. But today, branding women as witch- es is more of a tool used by land grab- bers to deprive families of their proper- ty. It is also used as a weapon of revenge against women who refuse to yield to sexual exploitation. Also, the campaign of a political party is sometimes derailed, particularly within tribal areas, by branding one of its activists as a witch. Such exploitative behaviour is sought to be explained as part of local customs and therefore, acceptable. While stringent laws will help, changing societal attitudes and mindsets is the real challenge. Forget a tribal state like Jharkhand, we have a situation where even in a cosmopolitan city like Mumbai, a leading Bollywood actor was recently accused of practicing witchcraft by her embittered ex-boyfriend. Superstition, as they say, runs deep. And there are enough people waiting to exploit the vulnerable. —With inputs from Rafi Sami and Irfan Amayur | INDIA LEGAL | June 19, 2017 19 2015 NCRB figures on registered witchcraft-related murder cases: States No. of Cases Jharkhand 32 Odisha 26 Madhya Pradesh 20 Telangana 14 Gujarat 13 Chhattisgarh 13 Maharashtra 5 Karnataka 5 UP 3 Bihar 2 Tripura 1 Andhra Pradesh 1 TOTAL 135 ListofShame WASHING HIS HANDS OFF One of the accused in the Pedki Devi case, Srikant Mahato, has denied his involvement Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
20 June 19, 2017 F you are a VIP’s son or daughter, chances are that largesse will be showered on you by the state even without you seeking it. Ask Raktim Gogoi, Supreme Court judge Ran- jan Gogoi’s son, who was chosen as one of the lawyers to represent the Punjab government in the apex court and other courts outside Chandigarh. The selection came as surprise for him. However, after the lawyers list was released in March 2017, he wrote to the Punjab government to withdraw his name as it was included without his consent. Similar was the experience of Saket Sikri, son of Justice AK Sikri of the Supreme Court. He wrote a letter to the Punjab government requesting that his name be removed from the list. Sikri told India Legal: “I wrote to have my name withdrawn as my consent was Cloutand Lineage Theappointmentofgovernmentlawyersandadvocate generalshasoftenbeenquestionedbecausetheyaremostly connectedtoministersandjudges.Thisleavesethical lawyersfeelingshortchanged By Usha Rani Das I APPOINTMENT LETTER Illustration: Anthony Lawrence Focus/ Standing Counsels
| INDIA LEGAL | June 19, 2017 21 not taken. I did not even apply for the post.” But he refused to comment on why his name was included in the list in the first place. Were these cases of misdirected favouritism? There is no way of conclu- sively determining that. But one can say that some lawyers are favoured over oth- ers and the reason may not always be professional competence. Remember, there was a controversy over an appointment in Madhya Pra- desh in November 2014 when Aditya Shankar, son of Union Minister of Law and Justice and Information Technology Ravi Shankar Prasad, was appointed as the standing counsel of the state govern- ment in the apex court. Immediately after the appointment, BS Banthia, who was the standing counsel of Madhya Pradesh for 12 years, raised objections, alleging it to be a case of “favouritism”. He said that Shankar was appointed to represent the state in the apex court though he had not passed the man- datory Advocate-On-Record (AOR) examination. Banthia was quoted by a newspaper as saying that “his only qualification is that he is Ravi Shankar Prasad’s son”. The Congress party had also raised objections, with its then leader of the Opposition in the Madhya Pradesh ass- embly, the late Satyadev Katare, point- ing out that the post should have gone to someone from the state, and not an outsider like Shankar. When Aditya Shankar was contacted, he told India Legal he had suspected he was being favoured and had hence rej- ected the MP government’s offer twice. He said: “I knew I was being appointed because I was Ravi Shankar Prasad’s son. It had nothing to do with my cre- dentials…. But when they offered me the position a third time, I took it as a chal- lenge and accepted it. As soon as the allegations came in February 2015, I quit the office the following month and joined Kaden Boriss (a law firm). It is also true that I did not pass the exami- nation but we all know that the Advo- cate-On-Record examination is just a formality.” LINEAGE COUNTS Instances of such appointments are apl- enty in the Supreme Court and High Courts of different states. While Aditya Shankar resigned and Gogoi and Sikri refused the offer, there are many gov- ernment lawyers who, though they were appointed thanks to their political affiliations, enjoy the benefits with im- punity. Legal experts note that over the years, the post of state counsels and advocate generals have become political appointments. The list of advocate generals selected by the Madhya Pradesh government over the years is telling. Pushpendra Kaurav, who became the additional ad- vocate general for Madhya Pradesh gov- ernment on June 6, 2017, is alleged to have got the post thanks to his affilia- tions with the RSS. He was earlier asso- ciated with the ABVP, the student wing of the RSS, during his student years. He started his career as a lawyer in 2001 un-der the tutelage of his maternal uncle and BJP leader Virendra Singh Choudhary. Kaurav had barely complet- ed seven years as a lawyer when the Shivraj Singh Chouhan government appointed him deputy advocate general. He was later promoted as additional advocate general. Kaurav succeeded Ravish Chandra Agrawal, who landed the post allegedly on the recommendation of former advo- cate general and senior BJP leader, Ravi Nandan Singh. Before Agrawal, senior lawyer from Gwalior and BJP leader RD Jain was the Madhya Pradesh advocate general. He had succeeded another BJP leader Ravi Nandan Singh, the first advocate general, after the BJP came to power in the state in 2003. In the Congress government prior to that, then chief minister Digvijaya Singh had appointed Vivek Tankha as advo- cate general. Tankha, who is now a Congress Rajya Sabha MP and senior Supreme Court lawyer, was just 43 then. His father-in-law late Colonel Jay Narayan Mushran was the finance "IknewIwasbeing appointedbecauseIwas RaviShankarPrasad’s son.Ithadnothingtodo withmycredentials.…As soonastheallegations came,Iquittheoffice.” —AdityaShankar,sonof UnionMinisterRavi ShankarPrasad “Iwrotetohavemy namewithdrawnas myconsentwasnot taken.Ididnoteven applyforthepost (ofgovernment counsel).” —SaketSikri,sonof JusticeAKSikriof theSupremeCourt A2012CAGreportforHaryana foundthatthesystemofappoint- mentoflawofficersfollowedin thestatedoesnotevenassess themanpowerrequirement.
22 June 19, 2017 minister in the Digvijaya Singh cabinet. Political appointments of law officers are rampant in Haryana and Punjab too. An RTI query by advocate Pradeep Kumar Raparia reveals that none of the applications received for the post of ad- vocate general of the Punjab and Harya- na government were invited or received from those appointed. His RTI even found that resumes of the applicants were asked after they were appointed by the state government. He alleges that a majority of those appointed as standing counsels and advocate generals were kith and kin of ministers, political lead- ers, senior bureaucrats, high court judges, police officers and MLAs of the ruling parties in the two states. COURT OBSERVATIONS Such appointments take place despite the 2016 Supreme Court ruling in State of Punjab & Anr vs Brijeshwar Singh Chahal & Anr. The apex court had ruled then that “appointment of Government Counsel must, like the discharge of any other function by the Government and public bodies, be only in public interest unaffected by any political or other extraneous considerations. The govern- ment and public bodies are under an obligation to engage the most compe- tent of the lawyers to represent them in the Courts for it is only when those appointed are professionally competent that public interest can be protected in the Courts”. The bench headed by then CJI, TS Thakur, had regretted that “the states continue to harp on the theory that in the matter of engagement of state coun- sels, they are not accountable and that engagement is only professional and/or contractual, hence, unquestionable. It is too late in the day for any public func- tionary or the government to advance such a contention, leave alone expect this court to accept the same”. Punjab, Haryana and Madhya Prade- sh are not the only states that are exp- loiting the system. Tamil Nadu too is filling the post of standing counsels in the High Court with lawyers who enjoy a cordial relationship with the party in power. The minute there is a change of government, the standing counsels will either be immediately replaced or will themselves relinquish their posts. This is an age-old practice prevailing in the state for the past 50 years. The appointment of kith and kin that have attracted notice could well be just the tip of the iceberg. India Legal found in its investigation that since the AOR exam is not mandatory to be appointed as a standing counsel, this is being wide- ly exploited. According to a former stan- ding counsel, the irony is that those who have not passed the exam have to hire an AOR lawyer to file a case in Supreme Court, which in turn increases the exp- enses the state has to bear—which is an unfair practice since it comes from the public exchequer. “For a standing coun- sel to be an AOR lawyer is in public interest,” he says. According to a source, there are even instances where an individual is the standing counsel of three states. For example, advocate CD Singh is the standing counsel of Madhya Pradesh, Uttar Pradesh and Chhattisgarh. Though there is no rule that prohibits this, it is quite impossible for an individ- ual to handle the responsibilities of three states, said the source. If we look at the history of standing counsels, he added, it is ripe with examples of rela- tives of VIPs getting the post though they may be “unfit” for the job. ARBITRARY APPOINTMENTS A 2012 Comptroller and Auditor General (CAG) report for Haryana fou- nd that the system of appointment of law officers followed in the state does not assess the manpower requirement, leave alone any worthwhile process of selection. The result is that more than half of those appointed were without any work, resulting in payment of idle salaries. The report stated: “The engage- ment of excess Law Officers without assessing the quantum of work and without resorting to fair and transpar- ent selection method, resulted in allow- “Acertaindegreeofcom- petencewasrequired.... Havesomemercyonthe courtstoo.Mereconnec- tionwithpoliticians shouldneverbethecrite- riatoappointanadvocate asgovernmentlawyer.” —SupremeCourt benchheadedbyCJI JSKhehar “Thestatescontinueto harponthetheorythatin thematterofengagement ofstatecounsels,theyare notaccountable….Itis toolateinthedayforany publicfunctionaryorthe governmenttoadvance suchacontention.” —SCbenchheadedby formerCJITSThakur Thestatesclaimthattheyare undernoobligationtofollowany definitemethodwhileappointing lawofficersasit’saprofessional engagement. Focus/ Standing Counsels
| INDIA LEGAL | June 19, 2017 23 ABOVE APPEASEMENT: The Supreme Court has on numerous instances emphasised probity in legal posts ing more than 50 percent Law Officers without work and payment of idle salary of `2.22 crore.” In fact, in State of Punjab & Anr vs Brijeshwar Singh Chahal & Anr in the Supreme Court it was argued that with- out a proper system, the appointments may be made not because they are required but because “they come handy for political aggrandisement, appease- ment or personal benevolence of those in power towards those appointed”. Not just that. Dismissing a plea by the Bihar government to grant it a free hand in appointing government lawyers, the Supreme Court had observed in March, 2017, that a government lawyer should be appointed on the basis of an advocate’s performance in courts and not his political connections. The bench headed by Chief Justice JS Khehar, Justices DY Chandrachud and Sanjay Kishan Kaul stated: “The cases involv- ing the governments were crucial in many aspects touching key areas of gov- ernance. A certain degree of competence was required from the advocates to rep- resent the government and render mea- ningful assistance to the courts. Have some mercy on the courts too. Mere connection with politicians should never be the criteria to appoint an advocate as government lawyer.” In yet another petition that broke the cycle of political appointments in Tamil Nadu, advocate Vengadessane Vasantha- kumar had asked the Madras High Court to issue directions to the govern- ment to follow prescribed rules and reg- ulations in the appointment of standing counsels for various state departments. The first bench of the Court headed by the then Chief Justice Sanjay Kishan Kaul in August, 2016 directed the Tamil Nadu government to devise rules and regulations for the appointment of gov- ernment counsels. The procedure laid down by the Madras High Court was: The Advocate General of the state of Tamil Nadu should send a list of the names to the government. The Advocate General will then send the list to the government. A team of senior government officials will scrutinize the list and then appoint the standing counsels. Two senior advocates of the Court to be appointed as amicus curie But Vasanthakumar has refused to accept the proposals. He says: “There is no transparency in these proposals. For example, on what basis will the AG sel- ect an advocate and send his name to the government for his or her appoint- ment as standing counsel? As soon as the court opens after the vacations, we will take up the issue before the first bench which originally gave directions to the government.” There is also a controversy relating to the AOR exam. Clearing it is only man- datory for a standing counsel if he has to file cases in the Supreme Court. But why is it often referred to as a mere formali- ty? A Supreme Court advocate had this explanation: “The questions for the AOR exam are prepared by lawyers and whoever is well-connected can get hold of them well in advance. It hardly takes a month to prepare and pass the exami- nation. Hence, practically speaking, it is just a formality.” The states claim that the engage- ment of state counsels is a professional engagement and hence they are under no obligation either to prescribe a pro- cedure or follow any definite method while making such appointments. This is indeed a convenient position to take. India Legal was given to understand that a standing counsel cannot be dis- missed till the government of the day decides to change him/her. This and other arbitrary policies give political parties in power the leverage to bestow largesse on those they wish to favour. (With inputs from Vipin Pubby in Chandigarh, Ramasubramanian in Chennai, Rakesh Dixit in Bhopal and Neeraj Mishra in Raipur) Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com TheSChasruledthatthe appointmentofgovernment counselmustbe inpublicinter- est,unaffectedbyanypoliticalor otherextraneousconsiderations. Anil Shakya
States/ MP/MLA Murder 24 June 19, 2017 N eight-year-old murder case has come to haunt Madhya Pradesh General Administration Department minister Lal Singh Arya. He was accused of killing Congress MLA Makhan Lal Jatav on April 13, 2009, when the latter was campaigning for the Lok Sabha candidate for Bhind seat, Bhagirath Prasad. Although the Gwalior bench of the Madhya Pradesh High Court quashed a non-bailable warrant against Arya on May 31, he is still not out of the woods as yet as the Court pointed out two legal flaws in the Bhind trial court’s order, which was passed on May 19. The Bhind court had made Arya an accused after booking him under Sections 302 and 120 (b) (conspiracy). However, the court stayed an arrest warrant to give the minister an opportunity to argue. HC RULING The High Court’s single-bench of Justice Sheel Nagu ruled that Bhind’s trial court judge had no power under the Criminal Procedure Code to stay his own order passed on the same day. Arya’s counsel Surendra Singh argued that the petitioner was made an accused on weak evidence and without his side being heard. Arya was named the main accused by Jatav’s family members and three eye- witnesses. But the police ignored these charges and instead, relied on Arya’s security guard who did not name any- one. The CBI, which later took over the high-profile investigation, spared the minister for “lack of evidence” against him. This is not surprising, as from the beginning, this case was characterised by political opportunism and shoddy investigation. However, the most stunning volte- face was seen in the case of Bhagirath Prasad, Bhind’s Lok Sabha candidate for whom Jatav was campaigning when he was shot dead in 2009. Prasad had cate- gorically stated then that Arya had got Jatav murdered. However, following the Bhind court’s May 19 order, he said: “Despite my statement, the CBI and the police had found no evidence against Arya. Even I did not have concrete evi- dence that Arya had ordered the killing. My statement at best was noncommit- tal.” He said attempts to target him were “politically motivated”. Incidentally, Prasad was principal secretary (home) till he took voluntary retirement in 2007. He contested the 2009 Lok Sabha elections as a Congress candidate but lost. However, he got a ticket again in 2014, but defected to the BJP and won from Bhind. POLITICAL RIVALRY It all began in the November 2008 assembly elections when Makhan Lal ThekillingofaCongressleaderhasexposedthisstate’s penchantforpoliticalvendettaandwiththegovernment backingtheaccusedminister,hecouldwellgoscot-free By Rakesh Dixit in Bhopal Open and Shut Case? THE PAST COMES TO HAUNT Congress MLA Makhan Lal Jatav (above) was killed on April 13, 2009 and MP minister Lal Singh Arya was accused in the caseA
| INDIA LEGAL | June 19, 2017 25 Jatav, a little-known Congress worker, clashed with two-time BJP MLA Lal Singh Arya for the Gohad seat and won, taking everyone by surprise. As a shocked Arya licked his wounds, Jatav’s supporters further infuriated the BJP leader by hurling stones at him in a function. Arya had filed an FIR against Jatav and his supporters. On April 13, 2009, during campaigning for the Lok Sabha election, both Jatav and Arya came face to face at Chharenta village in Gohad around 8.15 pm. According to three eyewitnesses, Jatav was sitting in the front seat of his Bolero with his son, Arvind, while his two armed guards sat behind. He had halted the car and was speaking to villagers when two persons walked up and shot him twice. Arvind told the police he heard Arya shout: “Makhan ko maro, bachna nahi paye (Kill Makhan, he should not escape).” Eyewitnesses said Arya was present at the scene. ACCUSED MURDERED As the Congress mounted pressure for Arya’s arrest, the BJP government of Shivraj Singh Chouhan handed over the probe to the CBI. After investigation, the CBI identified six persons as accused and chargesheeted them in the special court in Bhind. Arya was excluded. Of these six, Tej Narayan Shukla was found murdered under mysterious cir- cumstances at his farmhouse in 2014 when he was out on bail. Senior Congress leader Dr Govind Singh claims that Shukla was in his party but later aligned with Arya. Shukla was reported to be angry with Jatav for raising some land dis- pute related to him in the state assembly. Singh claimed the deceased had expressed apprehensions that Arya could get him murdered. The murder case dragged on till April this year when the CBI finally filed an affidavit saying Arya was innocent as his name figured neither in the FIR nor in the chargesheet filed by it. EYEWITNESS ACCOUNTS Jadav’s son Arvind countered the CBI affidavit, and filed an application to include Arya as one of the accused under Section 319 of the IPC. Arvind’s lawyer, Ram Pratap Kushwaha, told the Court that his client had submitted a similar application soon after the mur- der also but the police chose to rely on the gunman’s FIR which did not name Arya. Arvind’s elder brother, Ranveer, said that his father’s guard, a govern- ment employee, had deliberately avoid- ed naming Arya, but there were other eyewitnesses too whose accounts eventually prevailed, leading to the arrest warrant. The Court order spurred the Congress and a delegation of the party led by the leader of opposition, Ajay Singh, called on Governor OP Kohli on May 27 to seek the dismissal of the minister on moral grounds. However, Arya told journalists that the CBI had given him a clean chit. “My counsel applied for quashing the warrant execu- tion, which the high court has permit- ted,” said Arya. However, the BJP has backed the minister, with state party president Nandkumar Chouhan saying there was no need for him to resign. After the High Court ruling, Chief Minister Shivraj Singh Chouhan too said the question of the minister’s resignation does not arise. Probity in high places seems to be in short supply. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com AftertheHighCourt ruling,Chief MinisterShivraj SinghChouhansaid thatthequestionof Arya’sresignation doesnotarise. Themost stunning volte-facewas ofBhagirath Prasad(right), Bhind’sLScan- didateforwhom Jatavwascam- paigning,when hewasshot dead. UNI
26 June 19, 2017 OR 19-year-old Fida Fathima from Kozhikode, the legal bat- tle she won in the Kerala High Court to protect her reli- gious rights under Article 25 (1) of the Indian Constitution was a significant one—both as a citizen and as a Muslim. The young girl was forced to take legal recourse after she received her admit card for the MBBS entrance examination conducted by the All India Institute of Medical Sciences (AIIMS) on May 28. What upset Fathima was that the admit card listed items which candi- dates were prohibited from bringing/ wearing into the examination hall and this included “headgear and scarf”. This was not acceptable for Fathima who had covered her head with a hijab since childhood in accordance with the prac- tice prescribed by her religion. She decided to go to court. CONSTITUTIONAL RIGHT On May, 24, the Kerala High Court upheld the plea filed by Fathima and three others and ruled that the direc- tions issued by AIIMS are a direct infringement of Article 25 (1) of the Constitution of Indian which says “…all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate any reli- gion of one’s choice”. The Court, while passing the judgment, directed AIIMS to ensure that “the restrictions as regards to use of headgear/head scarf should not be enforced against candi- dates who by virtue of Article 25 (1) of the Constitution have the protection to wear such dress as part of their faith.’’ An elated Fathima says that she was immensely pleased that she could take the examination on May 28 without F A Matter of Faith TheKeralaHighCourt’sdirectiontoAIIMStorespectreligiousrightsguaranteedunder theconstitutionandallowMuslimwomentowearahijabwhileappearingforan entranceexam,overturneda2015rulingbytheSupremeCourt By Naveen Nair in Thiruvananthapuram States/ Kerala/ Religious Attire Photos: Anil Shakya
the Board to frame proper rules that do not infringe on the reli- gious rights of candidates. The CBSE was in for further embarrassment when girl stu- dents cutting across religious barriers raised a hue and cry about the totally unethical way in which they were frisked and checked at exam centres. One in Kannur, North Kerala was in the eye of storm when students alleged that even their under- garments were checked. “It was so humiliating. The invigilator asked me to unhook my top innerwear to check. I was so dis- turbed that I could not write the exami- nation,’’ a student told the media. After the huge outcry, an investiga- tion was initiated by the State Human Rights Commission which also visited the school in which the incident occurred and suspended four invigila- tors. Kerala Chief Minister Pinarayi Vijayan also directed the district admin- istration to initiate criminal proceeding against the school. Advocate Fathima Thahaliya, who was one of the petitioners along with Fida Fathima and others at the High Court in the latest case, says it is com- mendable that the High Court ruled in their favour despite the Supreme Court taking a different stand in 2015. “These are times when everything is being questioned—from what we wear to what we eat. So it is absolutely important to question such rules at the moment. When it is known that a highly sensitive issue is involved, why frame such rules? If it’s for preventing malpractice then there are many other mechanisms that can be used,’’ she says. The Kerala High Court’s recent ruling only reinforces that the funda- mental rights enshrined in Article 25 (1) are indisputable and no new rule can bend it. feeling guilty of having shown disrespect to her reli- gion.“I felt immensely proud when I got this judgment from the court because it upholds my right to practice my religion and yet at the same time pursue my dream in life. I hope this judgment will give strength to candi- dates like me in the future who are in a dilemma as to whether they should respect their religion or blindly fol- low such rules. Just because someone is practicing her religion doesn’t mean she should be denied opportunities in life,’’ Fida Fathima told India Legal. This is not the first time that the issues of headgear and scarf have come up before the Kerala High Court. In 2016, a similar case was heard by the court ahead of the pre-medical entrance examination conducted by the Central Board for Secondary Education (CBSE). The ruling went in favour of Amnah Bint Basheer of Thrissur who was allowed to sit for the examination wear- ing a hijab. The Court had observed that “the right of women to have the choice of dress based on religious injunctions is a fundamental right protected when such prescription of dress is an essential part of religion”. Hence on May 24, the Kerala High Court was only reiterating one of its ear- lier judgments. However, the advocate who appeared for Fathima, PE Sajal, claimed it was a landmark verdict. “What the court said in 2016 was for that particular case and that is why the issue has come up again. Even the AIIMS admit card was not fully clear about the rules. This judgment brings clarity on the issue and will set a prece- dent,’’ Sajal told India Legal. The Court directed Fathima and oth- ers who wear the head dress to reach the venue of the examination at least one hour in advance so that they could be thoroughly frisked by a lady invigilator. The Court has also added that such checks should be carried out “respecting religious sentiments”. DIFFERING VERDICTS It has never been smooth sailing for those who insist on wearing a hijab. In 2015, the CBSE had come out with a set of guidelines banning use of headgears and scarf in the pre-medical entrance examinations. This was done after ram- pant malpractices were reported from certain centres. Three girls had then approached the Supreme Court with a plea similar to the one filed by Fathima. The apex court turned it down and asked the students to appear in the examination without wearing any head- gear or scarf. However, in 2016 following wide- spread criticism, the CBSE relaxed the rules allowing veils and certain kind of burqas inside exams but again kept out the head scarf. Here again, Justice A Muhamed Mustaq of the Kerala High Court directed the CBSE to admit a Thrissur-based student and also asked | INDIA LEGAL | June 19, 2017 27 “Thesearetimeswhenevery- thingisbeingquestioned—from whatweweartowhatweeat. Whenahighlysensitiveissueis involved,whyframesuchrules?” —FathimaThahaliya,advocate Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
Agriculture/ GM Technology 28 June 19, 2017 N May 16, when Additional Solicitor-General Tushar Mehta sought to intervene in a private dispute between Monsanto and its biggest erstwhile sub-licencee, Hyderabad-based Nuziveedu Seeds, it seemed like the agriculture ministry was not done with “fixing” Monsanto. Monsanto, an American company, is the leader in genetically-modified crop technology. In December 2015, its local joint venture had terminated Nuziveedu’s licence over refusal to pay trait fee dues as per their contract. Mehta wanted to make submissions on behalf of the government on the patentability of genetically-engineered traits like insect resistance and herbi- cide tolerance in plants, a week after hearings on the matter had ended. But the Delhi High Court did not take them on record. It told him to move an appli- cation to do so and said the principal parties would be entitled to reply. Incidentally, the views of the ASG and M Prabhakara Rao, the founder and managing director of Nuziveedu Seeds, Sowing Seeds of Doubt TheAdditionalSolicitor-GeneralintervenedbetweenMonsanto andNuziveeduSeeds,givingtheimpressionthattheministry isplayingfavourites.Butthismaynotbethefullpicture By Vivian Fernandes THE DEBATE IS ON The Bt Cotton plant (right), seeds (above) and the toxic bollworm (facing page). As per the PPVFR Act, if a proprietary GM trait is used by any breeder, the trait developer can make a claim for “benefit sharing” O
| INDIA LEGAL | June 19, 2017 29 are quite similar. In 2015, Rao had made a case for widely-used GM traits to be considered as SEPs (Standard Essential Patents) which should be available on FRAND (fair, reasonable and non-discriminatory) terms. He was quoting from an article in the August 2014 edition of the Colorado Law Review. Rao has also been pushing for the traits to be patented under the Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act. STANDARD ESSENTIAL PATENTS India has protected these genetically- engineered traits under the Indian Patent Act, as amended in 2002 and 2005. But the ASG believes that is not good for the country’s food security. He asserts that Monsanto and its licencees want to cling on to protections under that Act because they are addicted to profiteering. He wants widely used pro- prietary GM traits to be regarded as SEPs like the technologies used in smart phones, available freely on payment of a fee fixed by the regulator. Monsanto’s bollworm-resistance trait, for instance, is found in almost all the Bt cottonseed planted in the country. Though the ASG agrees the traits by themselves and the method of putting them in plants can be patent-protected, once inside, they become part of the plant. Except for microorganisms, the patent act does not allow animals and plants, including seeds, and species to be patented. Nor can biological process- es be patented. The ASG was referring to a list of “exclusions” in the act. The ASG says GM traits once incor- porated in plants, become part of it and are indistinguishable from them. Rao, like the ASG, believes they lose their dis- tinct character once grafted into plant DNA. And the plants pass on the genet- ic traits to subsequent generations through a biological process, which again puts them in the excluded catego- ry. Hence, the correct law, according to the ASG, for protection of GM traits is the PPVFR Act of 2001. If a proprietary GM trait is used by any breeder (that is say, a seed company like Nuziveedu) in any of the seeds it registers with the PPVFR Authority, the trait developer can make a claim for “benefit sharing” on the authority. The PPVFR Authority will make payments from a National Gene Fund, made up of contributions by seed companies registered with it. WITHOUT PERMISSION The ASG believes the PPVFR Act allows seed companies as breeders to use the proprietary traits in their own varieties and hybrids without permission. But this is only for limited or one-time use. Once the traits are introgressed (trans- fer of genetic information from one species to another), the seed company will not need to use the genetic material of the trait developer. In other words, he seems to be making a case for legalised grab of IPRs. But Justice RK Gauba of the Delhi High Court, against whose order the two litigants had gone in appeal to the division bench, was not impressed by similar arguments advanced by Nuziveedu Seeds. In his order of March 28, he upheld Monsanto’s patent on insect-resistance traits in Bt cottonseed. He said the patent act has a section on “invention” by which it meant “a new product or process involving an inven- tive step and capable of industrial pro- duction”. The provision was inserted in 2002 so that patentees were not deprived of the reward for innovations based on skill and ingenuity and “above what occurs in nature”. The GM traits involve “laboratory processes and are not naturally occurring substances,” Justice Gauba averred. They are man- made and therefore, do not fall within the ambit of exclusions in the patent act. The gene which produces the boll- worm-killing toxic protein in Bt cotton plants is obtained from a soil bacterium. But the natural isolate cannot be TheASGbelievesthatoncethe traitsareintrogressed,theseed companywillnotneedtouse thegeneticmaterialofthe traitdeveloper.
Agriculture/ GM Technology 30 June 19, 2017 straightaway inserted into the cotton genome. It has to be modified for the plant to accept it. It also has compo- nents attached so that the production of the toxic protein is switched on and off at particular points in the life cycle of the cotton plant. This gene construct when inserted can locate anywhere in the plant genome. There are hundreds or thousands of possibilities. The pro- duction of the toxin, its potency, the crop yield, its quality, and other proper- ties of the plant can be affected by the location of the insertions. Each of these insertions is called an “event”. The event chosen after screening, for patenting, would be the one that gives the best set of desired results. Justice Gauba said the PPVFR Act is for plant varieties. A plant variety, he said, is the lowest rank grouping of plants, distinguished from others by one or more characteristics. Relying on the 1991 international convention on pro- tection of plant varieties, he said, a sin- gle plant, a trait (like disease resistance or flower colour), a chemical or other substance (like oil or DNA), or a plant breeding technology (like tissue culture) do not meet the definition of a variety. Justice Gauba also termed benefit sharing as a “pot of gold at the end of the rainbow” because it depended on the breeders (seed companies) registering their varieties with the PPVFR Authority, which is not mandatory. Most seed companies, in fact, do not. Agribiotech companies say benefit sharing is for farmers and conservers of biodiversity. It is not for developers of GM traits which are manmade and cre- ated in laboratories. They say the law makes a distinction between the subject matter of an invention and use of an invention. If the subject matter is a plant or variety, it cannot be patented under IPA, but inventions whose use lies in plants and varieties can be patented. CONFLICT OF INTEREST? Incidentally, Rao was made a member of the PPVFR Authority in October 2016. He has been saying that seed companies should not have to obtain a non-objec- tion certificate (NOC) from the trait developer, as it gives the developer a handle to impose onerous terms. Once the Genetic Engineering Appraisal Committee recommends commercial release of a GM trait and the govern- ment accepts the recommendation, seed companies should be free to use the trait on terms fixed by the government and not the trait developer. Otherwise, it will result in a monopoly, he said. On a reference by the PPVFR Authority, the ASG has opined that such an NOC is indeed not necessary. It is not prescribed by the Act. An NOC goes against the grain of the PPVFR Act, he says, which is to promote the develop- ment of new varieties and hybrids. He says a mere declaration is enough. This should not be construed as an NOC. A self-declaration that genetic material used in transgenic varieties has been lawfully obtained is enough. Rao is said to enjoy considerable clout in the agriculture ministry, though this correspondent cannot vouch for it. His company was a big beneficiary (but not the only one) from the ministry’s 70 percent reduction in Bt cottonseed trait fees (payable to a joint venture of Monsanto). Bt cottonseed prices to farmers were cut by just four percent. Seed companies kept the savings. Given the agriculture minister’s pub- licly stated dislike of Monsanto’s “profi- teering”, it would be reasonable to assume that the ASG’s views have his consent. But a senior agriculture min- istry official said on a non-attributable basis, that the minister has not given his approval to the ASG’s legal opinion and the ministry has not vetted it. “It is a private matter between two companies and the government has no locus standi in the dispute.” Since the agriculture ministry had issued a notification in May last year waiving patents on GM traits and then withdrawing the notifi- cation hastily, one cannot say for sure that the issue has been laid to rest. The author is editor of www.smartindianagricutlure.in In2015,MPrabhakara Rao,founderofNuziveedu Seeds,hadmadeacase forGMtraitstobeconsid- eredasStandardEssential Patents,whichshouldbe availableonfairterms. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com AdditionalSolicitor- GeneralTusharMehta saysthattheGMtraits, onceincorporatedin plants,becomepartofit andareindistinguishable fromthem. JusticeRKGaubaofthe DelhiHighCourtwasnot impressedwitharguments ofNuziveeduSeeds.He upheldMonsanto’spatent oninsectresistancetraits inBtcottonseed.
India Legal 19 June 2017
32 June 19, 2017 Survival of the Fittest ThesearecriticaltimesforthissectorinIndiaandtheonlywaytosailthroughistoinnovate inbusinessmodelsandlearnnewskillssuchasartificialintelligenceandcloudcomputing By Imran Qureshi in Bengaluru STILL THE SUNRISE INDUSTRY? (Above) Employees at the Infosys campus in Bengaluru; (Facing page) The IT sector boom had created many work opportunities HE IT industry in India is ag- ain facing challenging times. Whether it is due to new tech- nologies or US visa policies, there is a churning that is tak- ing place. The focus is clearly to ride the curve of new job-threatening technolo- gies or face the sack. The insecurity has led to the renewed formation of a forum for IT employees which says that at least 56,000 employ- T ees are expected to lose their jobs over the next year. Though industry experts dismiss this insecurity as part of normal attrition and say it is standard practice to get rid of two percent of employees from the bottom of the pyramid every year, the fact remains that annual norms of appraisal have been made tougher. Ashok Soota, executive chairman, Happiest Minds Technologies and a for- mer chairman, Confederation of Indian Tech/ IT Industry/Job Losses UNI
sition, which many in the industry see as yet another phase that could help it grow further. Fundamentally, the older form of doing business is changing. No more are clients coming up with large projects that last for a minimum of a couple of years. These have been reduced from 18- 24 months to just three months now. “New businesses are very project-orient- ed. It is platform-based and you need people to get it up and running. This requires fewer people and work is short- er in duration and cyclical,’’ said an HR manager on condition of anonymity. SENIOR POSITIONS Unlike previous years, what has added to the hue and cry this year is the purg- ing of people in senior positions such as vice-presidents or senior V-Ps. Mohan- das Pai, former CFO and HR head of Infosys, calls it a “clutter concentrated at a certain level’’. His counterparts, how- ever, call it “people stuck with legacy technology, little learnability and less adaptability’’. In short, it means that these managers don’t bring value to the work that the team is doing. A business head of a major company said: “There are a dime-a-dozen man- agers in this industry and they are not needed. Technology has also moved to a point where the industry can afford not to have them. The result is pink slips. The industry needs to have every res- ource that is billable. This is the reason for the purge in the middle.’’ But surely these people can be re- skilled? An HR consultant who previ- ously worked for an IT company said: “It is not easy. It depends entirely on the mindset of the individual and the tech- nology background. Today, the customer is no longer saying I want this to be done like earlier. He simply asks what can you do to improve things?” In the old days, said Soota, it was easier for people who couldn’t get re- skilled to move on because industry was growing at a phenomenal pace. Today, it simply cannot afford it. But it is not a bad thing as such people have another | INDIA LEGAL | June 19, 2017 33 started this, people trust us to take up their issues.” The reality is that automation is slowly taking over this industry and, as Soota says, will replace a “large number of low-value jobs by higher-value but smaller number of jobs”. This will also decrease the number of jobs in this sector. The nature of engage- ment in this sector will undergo a tran- Industry, said: “In an industry that is still a huge net hirer, employing upwar- ds of a million-and-a-half annually, you are bound to get rid of some people. But there have not been mass layoffs.’’ INSECURE LOT But there is genuine fear over job losses and it has led to the Forum for Infor- mation Technology Employees trying to get itself registered formally. It will be the first independent association of its kind in the country and is a bid to organise the estimated 2.8 million emp- loyees in India’s IT sector. The insecuri- ty runs high and the forum claims that at least 56,000 employees of top soft- ware companies such as Infosys, Wipro and Cognizant are expected to lose their jobs over the next year. J Jayaprakash, a member of the forum, said: “Since we ourselves are IT employees who have ”Indiancompaniesmayevengo touniversitiesintheUStohire localtalent,groomthemandput themonthejob.Wewillalsoget toknowwhatskillsetsthelocal peoplehave.” –AformerHRdirectorofanITfirm Rajeev Tyagi
chance to become entrepreneurs. “After all, every other industry has an IT arm. The demand for IT skills will remain high because there is a huge amount of requirement everywhere,’’ he said. NEW CHALLENGES The change is happening at a phenome- nal pace. A business head of an IT com- pany said: “When the internet came, you could not find Java-trained individ- uals. Now, we are talking about data sci- ence and machine learning which makes artificial intelligence adaptable. These are the newer challenges. In fact, today, architects are still in demand, hands-on programmers are still in demand….” This is an industry that is quick to adapt and has done so every time it has faced a crisis. Whether it is the Y2K one, the Lehman Brothers crash or the US slowdown, the Indian IT industry sim- ply went on an overdrive and re-skilled and adapted to meet the demands of the market and grow. It is the same appro- ach it is adapting this time too, despite the new curbs on H1B visas proposed by the US government. In fact, even before Donald Trump came to occupy the White House, for- mer president Barack Obama’s rhetoric had forced the Indian IT industry to reduce its share of H1B visas in fiscal 2016. According to a report by National Foundation for American Policy, a US- based non-profit think-tank, seven top Indian IT companies saw a drop of 37 percent in H1B visas in 2016 as com- pared to 2015. These included TCS, Wipro and Infosys. It said, the 9,356 new H1B petitions for the top seven Indian-based companies approved in fiscal 2016 represent only 0.006 percent of the US labour force. So, it is hardly surprising that companies have reduced the number of applications for the cov- eted visas this year. Not just that, the sector is changing its business model of onsite deployment. From the days when almost 50 percent of a company’s work was outside India, it has been reduced to 30 percent. This means that the number of Indians who used to be sent abroad by IT companies will come down and could be reduced to as little as 10 percent. Kris Laxmikanth, CEO, Headhun- ters, said that with the new norms, Indian companies will be hiring Ameri- cans locally. One former HR director said: “Indian companies may even go to universities there to hire local talent, groom them and put them on the job. We will also know what skill sets the local people have.” Soota added that by sending higher skilled people abroad, Indian companies will evolve and move up the value chain. Some insiders were surprised at the proposal of Infosys’ founder, NR Nara- yan Murthy that top managements of IT companies take a cut in salary so that the younger lot does not lose jobs. “It is a cut-and-dried world today. If you are paid handsomely, professionals perform. Otherwise, they find better jobs and go away,” said an HR consultant. The only way then to survive this dog-eat-dog world is to move towards new opportunity areas like machine learning, artificial intelligence, IoT (Internet of Things) and robotic process automation. Doing a niche job is the security one needs. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Automationwillreplacealarge numberoflow-valuejobs byhigher-valuebutsmaller numberofjobs. —AshokSoota,executivechairman, HappiestMindsTechnologies Tech/ IT Industry/Job Losses 34 June 19, 2017 BRACING FOR LAYOFFS: Protests against mass terminations in TCS at the Town Hall in Bengaluru in January 2017 UNI
India Legal 19 June 2017
He is not a bureaucrat nor is he an RTI activist. He was a professor at National Law University at Hyderabad before he became Central Information Commissioner. PROF MADABHUSHI SRIDHAR ACHARYULU, 61, underscores the importance of RTI and has the toughness of a man who knows law. He disposes off cases quickly, telling both sides what they should ask and what they should be doing. He tells PARSA VENKATESHWAR RAO JR that he has given decisions in nearly 10,000 cases in his three-and-a-half year tenure. His ruling asking a post office to disclose information about the impact of demonetisation made it to the headlines. He said information about policy decisions that impact the lives of the people should be made public. Excerpts from the interview: Interview/ CIC/ M Sridhar Acharyulu 36 June 19, 2017 Your ruling asking for disclosure of information about demonetisation created ripples. Should this be extended to others as well or is it confined to a particular instance, ie, post offices in the Air Force area? It can be applied across the board because that is what Section 4 (1)(c) of the RTI Act says. Policy decisions which impact public life have to be explained. If you read (4) (c) and (d), you will realise that the government should be sharing the information on its own without anyone asking for it. In this case, the appellant wanted to know the total currency exchanged at his post office, the people who exchanged it and the number of those who provided ID proof for exchange. In my order, I have asked the post office to disclose the number and volume of transactions “Govt Obliged to Share Information on Demonetisation” Are people recognising the scope of the RTI Act? Yes, they are. The transformation, where people are asserting their right to know what the government is doing, is hap- pening. From a secrecy-oriented socie- ty—a colonial legacy—we are moving to a transparency-oriented government. As a matter of fact, in a country of over 127 crore people, there should be more RTI applications seeking information than there are now. Media can spread aware- ness about RTI by writing about the rul- ings given by the CIC. Is knowledge of law important for the RTI Act to be effective in the hands of the people as well as the Information Commission? Knowledge of law is useful, but is not necessary. RTI Act is all about common without revealing the names of those who deposited or withdrew money. And I have elaborated the legal position as laid down in the RTI Act with regard to the government’s obligation to share information on policy decisions. Is it necessary for a person affected by a policy decision to exercise his right to know about it under the RTI Act? It is not necessary. In fact, in law, the issue of locus standi is very important. But the courts have reinterpreted the jurisprudence in the 1980s when they allowed PILs. It is not necessary that you have to be the affected party for you to raise an issue of public impor- tance in a court of law. The RTI Act does away with the idea of locus standi. You can seek information which is of public interest.
taining to Gandhi’s assassination cannot be withheld. Do officials also understand the impor- tance of the RTI Act and is their atti- tude changing? It is happening. The change can be seen among the officials as well. But it is slow. There is, however, no doubt that 2005—when the RTI Act came into force—has been a turning point in Indian democracy. The fear of RTI will be a positive factor when officers make decisions. It makes them overtly accountable. As a Central Information Commissioner, you constantly deal with appeals. What is the nature of these appeals? The interesting part of these appeals is that 40 percent of them seek implemen- | INDIA LEGAL | June 19, 2017 37 sense. Each information commissioner is now aided by two legal consultants. Do any interesting cases come to your mind? Yes, the Mahatma Gandhi’s assassina- tion case. Did you know that three of the accused could not be traced? That one of them is a Telugu-speaking person called Kistaiah! The National Archives was not willing to share the information. The RTI applicant in this instance wanted to know the reasons for Nathuram Godse killing Mahatma Gandhi. There is a provision in the Criminal Procedure Code that allows the accused to have his say before the case is decided. That is how Godse was actu- ally able to make the long statement giv- ing his arguments. I gave the order that under the RTI Act, the information per- tation of the orders passed by the First Appellate Authority (FAA). It is usually the case that appeals to the CIC should be against the decision of the FAA. The procedure is this: When an Information Officer (IO) or Chief Information Officer (CIO) refuses to disclose information that has been sought under the RTI Act, an appeal is filed with the senior officer in the department. Many a time, the senior officer without applying his mind agrees with the decision of the IO and the CIO. But there are cases when the senior officer asks the information to be disclosed, but the IO and the CIO refuse to follow the directions. This is the flaw in the system. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Anil Shakya
A mong annual awards for jour- nalism, one of the most credi- ble is the Red Ink Awards by the Mumbai Press Club. It is based on a survey of over 100 journalists in dif- ferent fields and consultations among senior members of the profession. The most coveted awards are the Lifetime Achievement Awards and Journalist of the Year, which have gone to two deserving journalists. Raj Kamal Jha, the low-profile editor-in- chief of The Indian Express who has maintained the independent legacy of founder Ramnath Goenka and also oversaw the Panama Papers scoop is awarded Journalist of the Year, 2017. The Lifetime Achievement award went to Vinod Dua, television veteran who made his reputation with Prannoy Roy in covering elections for Doordarshan, and then later, anchoring shows with a host of broadcasters, most notably NDTV. He currently anchors a daily webcast on the digital news site, The Wire. 38 June 19, 2017 Media Watch W hile Republic is wide- ly seen as a pro-gov- ernment channel, it is nowhere in the league of Subhash Chandra’s Zee Television network. His right- hand man and lead anchor of Zee News, Sudhir Choudhury, rivals Arnab in ultra-nationalism and Pakistan-bashing on every occasion, while Chandra him- self is an open and ardent fan of Narendra Modi. Their latest flag-waving measure was to become the only Indian chan- nel to boycott last Sunday’s India-Pakistan cricket match in Birmingham in the ongoing Champion’s League. Ignoring such an encounter in a cricket- crazy country seems foolhardy, but it was on par with the net- work’s hardline position on Pakistan. All other news chan- nels were providing constant updates on scores, live reports from the ground, and pre-and post-match panel discussions, except for the Zee network. The only reference to the match was when Zee News telecast footage of army jawans on the border celebrating India’s win! Patriotism has no boundaries. Patriotic Television Twitter: @indialegalmedia/ Website: www.indialegallive.com Contact: editor@indialegallive.com Deserving Recognition Arnab Unplugged? I t took an editor like Harish Khare of The Tribune to tick off one of Punjab Chief Minister Amarinder Singh’s media advi- sors. It all started with the newspaper carrying an expose on how state power minister Rana Gurjit Singh’s for- mer cook had walked away with a `26-crore sand mining contract. The story embarrassed the government no end and the media advisor, a former journalist, was asked to pen a rebut- tal. He did so and pre- sented it to Khare. The Tribune editor ran his eyes over the copy and asked the CM’s man to rewrite it. He was told that the rebuttal would only confirm the story carried by the paper and not help the gov- ernment’s cause. “Please improve the English and say what you have to in 300 words. Also, build some logic," was Khare’s curt advice. Editorial Advice A ccording to insiders, Arnab Goswami has been gently advised by the man- agement of Republic TV that he must show balance in his news debates. The anchor launched the news channel in his sig- nature style with fiery one-sided ultra-nation- alistic debates where he attacked the Opposition parties and leaders across the spectrum spewing venom on them. But many in his organisation have begun to wonder what the “nation wants to know”? The debates have lost their USP and Republic TV has painted itself as the voice of the govern- ment. A survey conducted by the channel reveals that viewership has gone down and the “channel must have more credible and balanced content”. Republic TV’s promoter Rajeev Chandrasekhar has his “inbox” full of com- plaints from angry viewers and politicians. Does all this explain the channel’s “expose” on the Shriram Sena in Karnataka harass- ing Hindu-Muslim couples?
NO HOLDS BARRED InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT May8, 2017 ` 100 www.indialegallive.com NI Lessons from Sukma The turf war between the judiciary and the executive over appointment of judges reaches another cul-de-sac. There are no signs of a modified Memorandum of Procedure which the law ministry was expecting Deadlocked Yet Again =PT)0VT)BTg) 0SSaTbb) 2Xch)BcPcT)?X]) ?W^]TATb)UUXRT)TPX[) 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%'6PdcP1dSSW=PVPa=830D?! ( CTabR^]SXcX^]bP__[h?[TPbT_a^eXSTdb#fTTZbc^bcPach^dabdQbRaX_cX^] SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS For advertising subscription queries editor@indialegalonline.com HTb8f^d[S[XZTc^bdQbRaXQTc^8=380;460;PVPiX]TU^acWT^UUTaX]SXRPcTSQT[^f Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends CXRZ^]T CTaHTPab =^^U8bbdTb 2^eTa?aXRT` H^d_Ph` H^dbPeT` BPeX]V HTPa $!8bbdTb $! !% !% $ !HTPab #8bbdTb # # % %!# % STORIES THAT COUNTSTORIES THAT COUNT thh es ree m ee nn InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT May15, 2017 ` 100 www.indialegallive.com NI Exciting New FrontierIndia is poised to enter the international arbitration arena in a big way High Court says: “The worst judgment in recent times” Real estate law: dead end for fraudsters NirbhayaJudgment SupremeCourtupholdsdeathsentence,saysthere’sno scopeformagnanimityinthisbrutalcrime STORIES THAT COUNTSTORIES THAT COUNT iirrn ww udd see in InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT May22, 2017 ` 100 www.indialegallive.com NI Bachi Karkaria recalls the case that shook India Sweetheart Affair NAVI MUMBAI AIRPORT GVK-MIAL is flying high after landing a `16,000-crore contract from which other bidders mysteriously backed off, giving the infrastructure company a windfall deal at the expense of taxpayers ArtistImpression WhatsApp: Killing the messenger? STORIES THAT COUNTSTORIES THAT COUNT faatraa ct InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT May29, 2017 ` 100 NI Ransomware: The New Digital Threat and How to Stay Safe SELF-FULFILLING PROPHET Three Years of Narendra Modi Like a quick-change artist, he has displayed an uncanny knack of reinventing himself to adapt to political exigencies and conjuring up worlds that people want to believe in, says Shiv Vishwanathan Triple Talaq: The Supreme Test alT T www.indialegallive.com ROO STORIES THAT COUNTSTORIES THAT COUNT odd caa an Vis InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT June5, 2017 ` 100 NI Arvind Kejriwal: Perils of Power The Bots ComethMajor law firms are introducing Artificial Intelligence systems which could rewrite the role of lawyers. Will this prove a game-changer for the profession? Antarctica: India’s Double Game www.indialegallive.com CONSTITUTION PIL’S IPC WESTLAW MANUPATRA CRPC INDIAN KANOON BAIL CONTEMPT DEFAMATION CASE HISTORY PERJURY RECUSALS VISHAKA NIRBHAYA SHAH BANO CASE SECTION 66A KESAVANANDA BHARATI SECTION 377 M C MEHTA VS UNION OF INDIA STORIES THAT COUNTSTORIES THAT COUNT KK RJJ ONN MM UU InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT June12, 2017 ` 100 NI Patiala House Shift: Courting Controversy The Centre’s new restrictions on cattle slaughter is an incendiary mix of politics, religion, cultural sensibilities and federalism. Can it be challenged? Tamil Nadu: Enter the Lotus www.indialegallive.com CATTLEWARS TTV Dinakaran
40 June 19, 2017 NDIA’S erstwhile royal families have left us with memories of fan- tasy lifestyles, fabled riches, grandeur and romance, and, inevitably, family disputes over the opulent palaces and properties they owned. The Gaekwad royals battled each other over ancestral property worth `20,000 crore till the claimants hammered out a settlement in court, ending a 23-year-old family feud. Descendants of Maharana Pratap fought a protracted legal battle over a `450 crore legacy that includes Udaipur’s iconic Lake Palace hotel. The dispute (shades of Bahubali 2), involved two feuding brothers, one backed by the The Battle of Jaipur Theprolongedfeudoverthefive-starheritagehotelproperties oftheroyalshasbeensettledbytheSupremeCourt,butthe palaceintriguecontinues By Prakash Bhandari in Jaipur I Property/Property/ Royal Inheritance
| INDIA LEGAL | June 19, 2017 41 mother; the two sides were entangled in 55 different cases. The legal war is still on. The Scindia royals battle also wit- nessed the son (Madhavrao) taking on his mother (Rajmata Vijaya Raje) in court. The legal battle was prolonged when Madhavrao’s son, Jyotiraditya, filed cases against his paternal aunts, Rajasthan chief minister Vasundhra Raje and her sister Yashodhara Raje, over the family inheritance. The Scindia property is worth `25,000 crore, and there are 50 cases in various courts. Then there is the battle of Jaipur. Perhaps no other legal slugfest exempli- fies the kind of palace intrigue, polygamy, succession drama and com- plex inheritance structure like that of the House of Jaipur. Among India’s near-mythical panoply of royal houses, Jaipur was the best known and certainly among the richest. While the legendary Maharani Gayatri Devi, widow of Maharaja Sawai Man Singh II, was alive, the inheritance issue and the intrigue, was kept in check. When she died, in 2009, the legal skeletons tum- bled out of the royal closets, bringing into the open the messy, three-decade- old inheritance battle. The legal contest involves the mag- nificent Rambagh Palace and the sprawling 18-acre Jaimahal Palace in Jaipur, and Sawaimadhopur Lodge in Ranthambore. The estimated value of Jaimahal alone is `1,000 crore. COMPLICATED TIES Gayatri Devi was Maharaja Sawai Man Singh’s third wife, and she had just one son, Jagat Singh, who spent most of his life in London. The inheritance issue is contested by two sides of the family— Prithviraj and Jai Singh (brothers born to the same mother and Jagat Singh’s stepbrothers), and Devraj Singh and Lalitya Kumari, Jagat Singh’s son and daughter from a Thai princess he met and married in London at a ceremony attended by the Queen and Lord Mountbatten. Devraj and Lalitya were BITTER SUNSET (Clockwise from far left) At the centre of the feud is the magnificent Rambagh Palace; Devraj Singh and Lalitya Kumari, Jagat Singh’s son and daughter from estranged wife, Priyanandana (far right); Prithviraj and Jai Singh, step-uncles of Devraj and Lalitaya taj.tajhotels.com Raj Kumar Singh
Property/ Royal Inheritance 42 June 19, 2017 grandson and granddaughter of the late Rajmata, as Gayatri Devi was called. Jagat Singh died in 1997; he was one of the four sons of Sawai Man Singh. In fact, the original legal dispute pit- ted Jagat Singh, and later Gayatri Devi, against Bhawani (Bubbles) Singh, the son of Sawai Man Singh’s first wife, Marudhar Kunwar. Gayatri Devi’s death, 12 years’ later, triggered a legal showdown between Devraj and Lalitya and their step- uncles. The half-Thai members of the family have mostly lived in Bangkok, and still do after Jagat Singh’s fondness for drink and partying led to Priyanandna divorcing him. He moved back to London where he died. However, Devraj and Lalitya continued to visit Jaipur to see their grandmother, and usually stayed at the lovely Jaipur City Palace. On Jagat Singh’s death, they inherit- ed the Jai Mahal Palace under the laws of succession. But as the siblings were minors, Jagat Singh’s step-brother Prithviraj was appointed the palace caretaker. When the Jai Mahal Palace was converted into a luxury hotel, the succession certificate, according to Devraj, gave them the right to 99 per- cent equity and Prithviraj one per cent. That is when the palace intrigue started, with the young Thai-born family mem- bers claiming the uncle was manipulat- ing shareholding and the control of the royal properties. They said that Prithviraj was trying to prove that Jagat Singh had revoked his children’s succession rights through a will—a probate of which is pending in the civil court. LEGAL VICTORY The matter currently rests with the Company Law Board. Jagat Singh’s orig- inal will, in fact, had bequeathed his shares in the royal properties to his mother. In turn, Gayatri Devi willed her and her son’s properties in the name of her two grandchildren. The step-uncles disputed the first will written by Jagat Singh but after multiple hearings, the grandchildren won a tactical legal battle in the Supreme Court which upheld the Delhi High Court’s order in their favour, saying that they had been deprived of their rightful share in Rambagh Palace and Jaimahal Palace. These two proper- ties are owned by the Jaipur royals, but PRIZED LEGACY The sprawling 18-acre Jaimahal Palace in Jaipur WhenMaharaniGayatriDevidied, in2009,thelegalskeletons tumbledoutoftheroyalalmirahs, bringingintotheopen,themessy, three-decade-oldlegacywar taj.tajhotels.com
| INDIA LEGAL | June 19, 2017 43 managed by Tata’s Indian Hotels Ltd, branded as the Taj Hotels Resorts and Palaces. The succession battle over the royal properties estimated to be worth $900 million (`6,000 crore) according to a British assessor, seemed to have been settled when the Supreme Court laid down that Jagat Singh only disinherited his estranged wife and not his children. However, various members of the Jaipur royal family still exerted control over the extensive royal estate which remained partially intact long after the merger of Indian princely states into the Indian Union in 1947. Prithviraj and Jai Singh had ensured that the children of Jagat Singh were not allowed to stake any claims to the properties of their father and grandmother, till the Supreme Court stepped in and ruled in favour of Devraj and Lalitya. DIVORCED WIFE When in Jaipur, Devraj, 34, lives in Lilypool, which used to be the residence of the late Gayatri Devi. Sawai Man Singh had given this French-style bun- galow to her on a 99-year lease and Devraj says he has documents to prove it. This beautiful bungalow is part of the Rambagh Palace Hotel. Devraj, having lived in London and Bangkok, has very little knowledge of the Indian legal sys- tem and succession documents, further hampered by the fact that he cannot speak or read Hindi. Often his sister, Lalitya Kumari, 37, who is married to a Thai businessman and lives in Bangkok, comes and stays with him. Their moti- vation and advice comes from their mother. Once she divorced Jagat Singh, he left her out of his will but his chil- dren retained their right to inheritance. She has been the invisible force behind their fight for their rights. The Supreme Court ruling came as a relief but it is unlikely to be a smooth transition. Prithviraj was not available for comment, but one of his lawyers said that the step-uncles would abide by the Supreme Court orders. Despite that reassurance, royalty generally plays by its own rules and traditions. Both the step-uncles are in their late seventies and Devraj squarely blames them, Prithviraj in particular, for refusing to transfer the shares. “My uncle Prithvi- raj has attempted various ways to disin- herit us. He had already illegally redu- ced our father's shareholdings from 99 percent of Jaimahal Palace to 7 percent. Even Dadisa (Gayatri Devi) was not aware of this. Prithviraj also diluted my father's shares in Rambagh from 27.06 percent to 4.74 percent. After I found out, I filed the case in the Company Law Board in 2006. We also suddenly discovered that we have been disinherited.” Palace intrigue has led to this situa- tion. Ironically, it was the late Maharaja Bhawani Singh, popularly known as Bubbles, who encouraged the siblings to fight for their rightful share in their father’s and grandmother’s properties. He was witness to the will that Gayatri Devi wrote in favour of her grandchil- dren which proved a turning point in the royal dispute. The legal focus, how- ever, is on the three properties managed by the Taj group. Devraj and Lalitya still have to obtain an order from the Company Law Board on the new share- holding structure in the two companies that run the Rambagh Palace Hotel, Hotel Jaimahal Palace and Sawaimadhopur Lodge. If the Board decides in their favour, the siblings can then inform the Taj Group of the new shareholding, originally held by their late father. In effect, Devraj and Lalitya will be the new owners of the five star properties. Considering there are other court cases involving various members of the royal family, the Battle of Jaipur still awaits a victor. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com PrithvirajandJai Singh(right) ensuredthatthe childrenofJagat Singhwerenot allowedtostake anyclaimstothe propertiesoftheir fatherand grandmother. HEIRS IN TROUBLE Maharani Gayatri Devi, whose grandchildren are fighting the legal battle Raj Kumar Singh
much power as it can, and for that pur- pose, encroach upon areas of operation of other institutions by influencing them politically. A survey of the public institu- tions in India would be instructive to all those who care for a constitutional and democratic political order. In 2005, Devesh Kapur and Pratap Bhanu Mehta edited and published a few essays about public institutions under the title Public Institutions in India: Performance and Design. A decade has already passed since the publication of that volume and the events that have happened thereafter have greatly affected some of these UBLIC, constitutional, statu- tory or private institutions, having voluntary membership, play a great part in the func- tioning of a constitutional democracy. Institutions that are organs of the State are assigned specific func- tions by the constitution. They have to be independent and yet are subject to the limitations laid down by the consti- tution. Their internal strength is one of the guarantees of their independence. They must be strong enough to defend themselves from interference by other State institutions. There is an inherent tendency in the Executive to grab as Book Review/ Rethinking Public Institutions in India institutions. Both the original editors, joined by Milan Vaishnav, have now come up with a revised survey of public institutions. This volume contains some scholarly essays, giving an insight into the state of our public institutions and naturally, its effects on governance. CONSTITUTIONAL DUTY Basically, the writers of these essays have dealt with the structural aspect of the institutions under survey. Some essays also emphasise the procedure adopted by these institutions in their functioning. Facts leading to the growth and decline of these institutions have, naturally, been elucidated where neces- sary. There are occasions when proce- dures will have to be brushed aside and constitutional duty will have to be per- formed independent of it in order to do justice to the purpose of the provisions. We find such an instance in the presi- dential order dated January 1, 2017, when President Pranab Mukherjee commuted the death sentences of four Standing Up to Political Bosses P Doourpublicinstitutionshavethecourage tostanduptotheExecutive? By Justice Narendra Chapalgaonker CONSTITUTIONAL BENCHMARK The morale of public institutions, like Parliament, is an indicator of the democratic functioning of the country 44 June 19, 2017
role in the appointment of functionaries or members of the managing commit- tees of some of these institutions. There is a consistent demand by the govern- ment that it should have a say in the appointment of judges. Examples are cited of similar institu- tions in other countries where the gov- ernment has a right to appoint judges to the highest court of that country. The right to appoint will not always be mate- rial. While making any appointment, if merit of the person to be appointed is the only criterion before the govern- ment, the problem does not arise. But what is important is what is the expecta- tion of the state government after such an appointment? Should it be expected that the appointee should toe its line or be allowed to exercise his function independently? An anecdote is quoted by Peter Irons in his book A People’s History of the Supreme Court. President Eisenhower of the United States was once asked if he had made any mistakes as President. “Yes, two”, he replied, “and they are both sitting on the Supreme Court.” The President was referring to Chief Justice Earl Warren and Justice William Bren- nan, Justices of the Supreme Court app- ointed by him but whose opinions were normally not to Eisenhower’s liking. of the country as a whole. The Central Bureau of Investigation has already been a subject of public criticism and is often dubbed as a tool in the hands of people in power. Its highest officials have come under a cloud. This, in contrast to contemporary happenings in the US, where the Department of Justice is able to appoint an independent counsel for an inquiry which might embarrass some persons in power, is sad. Political parties have no respect for institutions like the Comp- troller and Auditor General and the Central Vigilance Commission. They praise them and underline their useful- ness when these authorities for internal accountability exonerate them and criticise them when a finger is pointed at them. The government plays an important convicts without following the advice of the home ministry. Powers like pardon- ing are not strictly an Executive func- tion. The advice of the ministers will weigh, but there would be cases wherein the constitutional functionary should exercise his own discretion according to his conscience. Madhav Khosla and Anant Padma- nabhan have rightly highlighted the legal developments that took place in the seventies. By inventing the doctrine of the Basic Structure, the Supreme Court circumscribed the power of par- liament to amend the constitution. By a liberal reading of the Fundamental Rights in the light of the Preamble and the Directive Principles enshrined in the constitution, the Supreme Court gave a wider meaning to the Right to Life und- er Article 21. These are the two impor- tant contributions of the Supreme Court of which a proper note has been taken. While dealing with the civil services, KP Krishnan and TV Somnathan have rightly pointed out the most important cause of their poor performance. Accor- ding to them: “The biggest single weak- ness of the civil service today is its per- ceived inability to function with integri- ty and political neutrality. Political inter- ference has become very common over the last three or four decades.” PUBLIC INSTITUTIONS The morale of public institutions is an indicator of the democratic functioning Procedureswillbe brushedasideand constitutionalduty performed,like whenPresident PranabMukherjee commutedthe deathsentencesof fourconvicts withoutfollowing theadviceofthe homeministry. Rethinking Public Institutions in India Author: Devesh Kapur, Pratap Bhanu Mehta and Milan Vaishnav Published by: Oxford University Press Pages: 527 Price: `995 | INDIA LEGAL | June 19, 2017 45 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Devesh Kapur Pratap Bhanu Mehta Milan Vaishnav
RIME Minister Narendra Modi is slated to visit Washington for his first meeting with President Donald Trump at the end of the month. But ahead of the meeting, the pitch has already been queered by Trump’s irresponsible accu- sations against India. Diplomacy/ World Relations 46 June 19, 2017 Will he halt the growing warmth between India and the US? With Europe now seriously wooing India and the US turning isolationist, the chances for a middling power like India to play a larger role on the world stage has brightened significantly. As major European allies try to grap- ple with the new reality of an America Asanewworldordershapesup,ModiwilltrytobetherightmanintherightplaceforEuropeand theUS.WillhisresponsivestancegiveIndiaachancetoplayalargerroleontheworldstage? By Seema Guha P Who Will Tango With India? Photos: UNI
| INDIA LEGAL | June 19, 2017 47 no longer willing to carry the burden of a liberal, globalised world, they are look- ing towards Asian giants, China and India. Modi’s recent four-nation tour to Germany, Spain, Russia and France was a huge success. Much of this can be attributed to the Trump effect. CHEERING UP GERMANY Modi arrived in Germany soon after Trump rounded off his first overseas tour. The US president attended both the NATO and G-7 summits and left America’s traditional allies uneasy at the new turn of events. Trump lectured NATO members about not paying enough for Europe’s defence and gave no commitment that the US would come to its aid in case of aggression from a non-NATO power (such as Russia). Trump returned to Washington and tweeted against Germany, leaving Chancellor Angela Merkel and other European leaders both heavily nervous and upset. Modi waded in to cheer Merkel who was hugely disappointed by the new American president. He assured her of India’s abiding ties with Germany and WOOING LEADERS Prime Minister Modi with German Chancellor Angela Merkel in Berlin (facing page); French President Emmanuel Macron in Paris (left) and Russian President Vladimir Putin (below)
went on to declare that “India and Germany were made for each other’’. A smiling Merkel heard him indulgently. But Trump had not finished with Europe. He went back to Washington and announced that he would pull out of the Paris Climate Change Agreement. This had been sealed with much fanfare in 2015, when Barack Obama and the Chinese came to an agreement and India decided to fall in line. Candidate Trump had been thundering against the Climate Agreement during his elec- tion campaign and his subsequent announcement was on expected lines. Yet it shook Europe to the core. And in his speech announcing America’s exit, Trump mixed fact with fiction. He accused India of signing the climate deal in the hope of cornering billions of dollars for new technology provided by the Obama administration. The fact is that the US and the rest of the industrialised world are major pol- luters and had to pay for their past mis- deeds in wrecking the environment for decades. India and China began their development much later. Today, China is the main polluter, followed by the US. India is not far behind. The emerging economies had during the several rounds of negotiations that led to the landmark 2015 climate deal insisted that the developed world pay for some of the clean, new technology that is being developed across the globe. Taking this out of context, Trump threw this charge against India. US TIRADE External Affairs Minister Sushma Swaraj took on Trump during her annu- al news conference on June 5. In reply to a question, she said: “We did not sign the Paris agreement under pressure from any country, or because we were greedy for funds from some country. We signed it because of our belief: a 5,000-year-old culture of preserving the environment.’’ Modi played his climate card well, assuring distraught European leaders that India is willing to go beyond what was promised in the Paris agreement. Standing shoulder-to-shoulder with new French president Emmanuel Macron, Modi declared his faith in the Paris accord. Macron will be visiting India by the end of the year and has endorsed the Modi-led alliance. NEW ALIGNMENTS India and EU, having struggled since 2007 for a free trade agreement, will now firm up their ties as a nervous EU looks for solid trade partners. After Modi’s visit, both are set to engage with each other even more deeply. With Russia too, Modi has repaired 48 June 19, 2017 CHANGING PERSPECTIVE (Top) Former US President Barack Obama (2nd R) welcomed by then French President Francois Hollande during the World Climate Change Conference 2015 near Paris; (above) US President Donald Trump (L), who has pulled out of the Paris pact, shakes hands with China’s President Xi Jinping in Florida Diplomacy/ World Relations
ties which were going through a bad patch. India was concerned about Russia’s closeness with both China and Pakistan. With Vladimir Putin by his side at a news event in St Petersburg, Modi, without mentioning Pakistan, spoke of the export of terror by certain countries. For the moment, India is sit- ting pretty. So what’s on the cards are the clearing of doubts with old friend Russia and a bigger engagement with Europe now. SAVING THE PACT Chinese Prime Minister Li Keqiang was in Berlin a day after Modi. And instead of talk on South China and trade, the focus was on how to make sure that the Paris Agreement does not unravel. While cash-rich China with its increas- ing clout—economic, military and diplo- matic—will be the principle beneficiary of a US retreat from global leadership, for India too, the options have opened out considerably. India may not be in a position to dole out cheques, but it has several advantages for European leaders. On top of the list is India’s democratic credentials. It also has a youthful popu- lation and a huge market which every nation is eyeing. But what about ties with America? Modi has aggressively pursued a pro- US tilt in foreign policy. But the isola- tionist trend triggered by Trump has made India a tad cautious. That possibly is a good thing as it is best to hedge one’s bet and not put all the eggs in an unpredictable American basket. Sushma Swaraj has said that Indo-US ties are on course and she does not foresee any major change in relations. She is confident that these ties will continue to look up as it is a “relationship of mutual benefit’’. SOLID TIES Former foreign secretary Lalit Man- singh, who was also ambassador to the US, was as optimistic as Minister Sushma Swaraj. “India-US relations are set and have a momentum of their own. They can go on without presidential intervention,’’ he said. The US remains India’s largest trading partner. There may be fluctuations in the number of H1B visas and the pharmaceutical sector may face problems in future, but so far, this has not affected ties. Mansingh believes there may be an issue on renew- able energy. But what can override some of the schisms, he believes, is diplomacy. After taking a rampant anti-China stand dur- ing the election campaign and even say- ing that China was a “currency manipu- lator’’ and “climate change is Chinese propaganda’’, Trump did an about-turn after President Xi Jinping’s visit. The personal chemistry was so good that he had his grandchildren (Ivanka Trump and Jared Kushner’s children) sing Chinese songs for the visiting digni- taries. The anti-China rhetoric flew out of the window. Instead, Trump praised China’s efforts at working with the US to contain North Korea. India hopes that Trump will use India to balance out China in the Asia- Pacific region. “But chances now are that as the US-China equation will remain strong, he will possibly cut a deal with the Chinese. Already, Japan and South Korea, who are under the US defence umbrella are concerned,’’ said Mansingh. So where does this leave India? Much will depend on the Modi-Trump meeting and how it pans out. “Knowing Modi, he will go well-prepared to meet Trump. He will also size him up and know exactly what works and what does not,’’ said Mansingh. “I suspect they will get on well, for both are unconventional politicians. Both are right-wing leaders and totally pro-business,’’ he added. “Modi’s diplomacy will be responsive and will be able to adjust to today’s changing environment.’’ Modi has already kept a fallback option in case things take a sour turn with the US. In Europe, both Merkel and Macron are willing to play ball with India. | INDIA LEGAL | June 19, 2017 49 “KnowingModi,hewillgo well-preparedtomeet Trump.Hewillalsosize himupandknowexactly whatworksandwhatdoes not.Isuspecttheywillget onwell,forbothare unconventionalpoliticians —right-wingleadersand pro-business.” —LalitMansingh, formerforeignsecretary “WedidnotsigntheParis agreementunderpressure fromanycountry,or becauseweweregreedy forfundsfromsome country.Wesignedit becauseofourbelief: a5,000-year-oldculture ofpreserving theenvironment.” —SushmaSwaraj, ExternalAffairsMinister Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
E VER since the late lamented Zulfikar Ali Bhutto pledged that he would defeat India by inflict- ing a thousand cuts, Pakistan and India have been in a state of undeclared war. It takes many forms and proxies but it has escalated in recent weeks. Unhappy with the current state of play, Prime Minister Nawaz Sharif summoned a meeting of his top army officers for a briefing last week. Excerpts. NawazSharif: I am not happy with the results of our last few encounters with India. It has bordered on being embar- rassing. The public is angry and asking questions about leadership and team spirit. What seems to be the problem? GeneralUstaad: Sir, it looks like the enemy had far superior firepower. Our intelligence on their preparation, offen- sive capability and frontline forces was not adequate and some of our key strategies did not work out. Sharif:This is not on. I am coming under fire for failing in my duties. The buck stops with me, as does the buk buk. Why is this happening under my watch? I was told we were going to win this battle. What has gone wrong? GeneralBahadur: Mr Prime Minister, it is all to do with their new leader. He sticks out his chest, gives us the finger and is very aggressive. They have gone on the offensive. Under him, they plan surgical strikes that are demoralising our forces. He believes in taking no prisoners. Sharif: I was given a briefing that showed we were the superior side. We had plenty of local support, strong throwing arms that were hitting the target and putting the Indians under pressure. Yet, when it comes to the crunch, we fail to make use of the opportunity… GeneralMardaana: Sir, it looks like we were vulnerable in every area. They marshaled their troops better, emplo- yed better tactics, showed greater moti- vation and hit us hard before we could prepare our defences. Sharif: Looking at the situation from here, it seems that we just could not affect any breakthroughs. They had every approach covered. How did we fail to read the situation on the ground? GeneralShahid: Sir, there is a lot of media pressure regarding ourselves and the Indians. A lot of hype and hysteria is created. People expect us to perform miracles. They keep bringing up the boast by General Musharaf that one Pakistani is equal to 11 Indians. When it came to the actual engagement, it turned out to be the other way around. Sharif: I was clearly misinformed. The intelligence reports I received said our forces were all fired up and ready to exploit Indian weaknesses. I was told we had a SWOT analysis, a SNOT analysis, an On the Spot analysis, so how did we allow this opportunity to slip through our fingers? GeneralHoshiyaar: Sir, despite extensive training and enough acclimatisation in alien territory, I must confess we did allow many opportunities to slip through the fingers. Our initial attack was hostile enough and had the enemy on the back foot, but our boys failed to maintain the momentum. Sharif: We have given you all the sup- port required, financial, equipment, all the ammunition you need, yet we fall short of the final objective. What do the people on the ground have to say? GeneralBakwas: Sir, when our men emerged from the tunnels, we discov- ered that terrain was like a minefield and it was extremely difficult to make progress and neutralize the enemy. They fought like tigers even though their national animal is supposed to be the cow. It was a Donald Trump moment for our jihad. Sharif: What has Donald Trump got to do with the failure of our offensive? GeneralBakwas: For our boys, it was meant to be a show of courage. Instead, by the end of the encounter, it was like a show of covfefe. Nobody can under- stand it. CivilianCouncilMember: The occupation of Kashmir is our junoon and our taqdir. Death by a Thousand Cuts is what we are taught right from school. I am assuming as a civilian I was not informed of these encounters and the forces we employed across the LoC. Sharif: Who’s talking about Kashmir? This is about Birmingham and the cricket team’s meek surrender to India. You know how much we hate losing to India; our GDP goes down, the mar- kets crash, there is mass depression, the media looks for scapegoats and that damn Imran Khan gets prime time coverage. I called this meeting because in any crisis situation, you know we always call in the army. Defeat by a Thousand Cuts Satire/Dilip Bobb 50 June 19, 2017 Anthony Lawrence Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
India Legal 19 June 2017
. RNI No. UPENG/2007/25763 Postal Regd. No. UP/GBD-197/2014-16

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India Legal 19 June 2017

  • 1. InvitationPrice `50 NDIA EGALL STORIES THAT COUNT June19, 2017 ` 100 I IT Sector: Future Shock? PEDKI DEVI, labelled a “witch” and publicly humiliated in 1999, is a subject matter in school books but still fighting for justice 18 years later, as the culprits roam free and continue to threaten her. The motive? Greed to grab her 12 acres of land Standing Counsels: Relative Values www.indialegallive.com Witches BrewBranding women as dayans across tribal belts in India is on the rise as greed for property, enmity and collusion by local officials overturns legal and ethical norms, aided by illiteracy and superstition
  • 3. IVEN the nature of the Indian polit- ical system in which the doctrine of separation of powers—the corner- stone of accountable governance— lies supine at the altar of executive privilege, I doubt that we will ever see a tele- vised session of parliament in which a top law enforcement officer openly calls a prime minis- ter a liar and points the finger at him for trying to derail an investigation of collusion between his closest advisors and a hostile foreign power to influence the course of a general election. In India’s Westminster-style democracy, the legislature, for all intents and purposes, is a slavish extension of the executive (members of parliament are also ministers) and the execu- tive can hardly be expected to conduct an im- partial investigation into its own wrongdoings. The accountability process is further stymied by ministerial control of the bureaucracy, par- ticularly law enforcement. In these circumstances, obstruction of jus- tice, or targeted prosecution of political oppo- nents, is the everyday rule. Small wonder then that Indians were flab- bergasted by the spectacular real-time reality TV show in which a sacked FBI director surgi- cally rubbished the character and credibility of his former boss, the most powerful man in the world, no less than the President of Ame- rica himself. And that too in testimony be- fore the powerful 15-member US Senate Select Committee on Intelligence, comprising of Democrats and Republicans (the President’s own party). Public investigations by bipar- tisan Congressional committees are de rigueur in the American sys- tem. Senior administration officials are regularly hauled up on Capitol Hill to testi- fy under oath on the functioning of their departments and to answer charges of mis- feasance or malfeasance. Not all of them attract a great deal of press. But former FBI Director James Comey’s broadside against President Trump was singular in that it evoked memories of Nixon and Watergate in which the issue of obstruction of justice caused the late president to resign in disgrace. There is nothing remarkable about an FBI chief being fired by the president at whose pleasure he serves. President Bill Clinton also dismissed his FBI chief, William Sessions, in 1993 for proven misconduct. A president can dump the FBI boss with or without giving any reason. But there are sub- tleties in the American system. The FBI chief reports directly to the attorney general and not to the president. And FBI directors keep presi- dents at arm’s length, scrupulously guarding their autonomy as the top federal law enforce- ment and domestic counter-terrorism and counter-espionage officers. What is remarkable, however, is that Trump fired the man heading a criminal investigation into the president’s election campaign. “The FBI has gone after presidents before,” Tim Weiner, a Pulitzer Prize-winning journalist and historian told VOX, pointing to the Bureau’s probes of Richard Nixon during Watergate and Ronald Reagan during the Iran-Contra scan- dal. “But never has a president dismissed an FBI director when members of the president’s administration and members of the president’s campaign team were under investigation for colluding with a foreign power (Russia).” A mericans treat law enforcement as a religion. They also believe that public officials owe their loyalty to the consti- tution and not to their political bosses. And obstruction of justice, when proven at any level, receives zero tolerance, cutting across party lines. Did Comey accuse Trump of this? And did Trump obstruct justice? Did Trump demand personal loyalty over loyalty to the constitution? Those are the key questions being debated across America. In a lukewarm attempt to shield Trump from this charge, Senator James Risch, a Rep- ublican from Idaho, zeroed in on this point BINDING THE MINOTAUR Inderjit Badhwar Letter from the Editor | INDIA LEGAL | June 19, 2017 3 G
  • 4. 4 June 19, 2017 during the Senate hearings at which Comey testified. He wanted to know whether Trump had “ordered” or “directed” Comey to drop the probe of Michael Flynn, his national security adviser, whom he was forced to fire barely three weeks after being sworn in because he had not revealed his secret contacts with the Russians. This is how the exchange went: SENATOR RISCH: There’s 28 words (in your written statement) there that are in quotes, and it says, quote, “I hope”—this is the presi- dent speaking—“I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Now those are his (the president’s) exact words, is that correct? COMEY: Correct. RISCH: And you wrote them here, and you put them in quotes? COMEY: Correct. RISCH: Thank you for that. He did not direct you to let it go. COMEY: Not in his words, no. RISCH: He did not order you to let it go. COMEY: Again, those words are not an order. RISCH: He said, “I hope.” Now, like me, you probably did hundreds of cases, maybe thou- sands of cases charging people with criminal offenses. And, of course, you have knowledge of the thousands of cases out there that— where people have been charged. Do you know of any case where a person has been charged for obstruction of justice or, for that matter, any other criminal offense, where this — they said, or thought, they hoped for an outcome? COMEY: I don’t know well enough to answer. And the reason I keep saying “his words” is I took it as a direction. RISCH: Right. COMEY: I mean, this is the president of the United States, with me alone, saying, “I hope” this. I took it as, this is what he wants me to do. (CROSSTALK) COMEY: Now I — I didn’t obey that, but that’s the way I took it. RISCH: You—you may have taken it as a direc- tion, but that’s not what he said. (CROSSTALK) COMEY: Correct. I—that’s why... RISCH: He said—he said, “I hope.” COMEY: Those are exact words, correct. RISCH: OK, do you—you don’t know of any- one that’s ever been charged for hoping some- thing. Is that a fair statement? COMEY: I don’t, as I sit here. RISCH: Yeah. Thank you. R isch probably thought he had scored a point. Did he? Here’s the definition of Obstruction of Justice from the US Federal Legal Code: (a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United Sta- tes, or officer who may be serving at any examina- tion or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing mag- Letter from the Editor PLAIN TALK Former FBI director James Comey had the courage to take on his former boss Donald Trump in the US Senate Select Committee UNI
  • 5. | INDIA LEGAL | June 19, 2017 5 istrate in his person or property on account of the performance of his official duties, or cor- ruptly or by threats or force, or by any threat- ening letter or communication, influences, obstructs, or impedes, or endeavors to influ- ence, obstruct, or impede, the due administra- tion of justice, shall be punished as provided in subsection (b). That definition does not require that there be a direct order that would quash or affect the investigation. “The key question here is wheth- er the president acted with corrupt intent,” Renato Mariotti, a former federal prosecutor, told CNN. O n a personal note, I covered the Water- gate scandal as a reporter in Washing- ton, and the present situation brings to mind a great American hero Senator Sam Ervin who chaired the Senate Select Commi- ttee on Watergate and brought down Nixon. I see analogies to the current Trump situation. Ervin was an uncomplicated, strict consti- tutionalist who believed the Social Contract and Rule of Law to be living entities. He came finally to the conclusion that Nixon and his top aides resorted to dirty tricks to weaken the Democratic Presidential campaign and incr- ease Nixon’s chances for winning in 1972. When information surfaced, Nixon and his cronies lied to investigators, resorted to cover- ups and got caught. Ervin opened his Commi- ttee’s hearings with these famous words still engraved in the minds of the reporters who covered that event: “If the many allegations made to date are true, then the burglars who broke into the Democratic National Committee at the Water- gate (apartment) were in fact breaking into the home of every American citizen…. And if these allegations prove true, what they were seeking to steal was not the jewels, money or other pre- cious property, but something much more valuable: the right to vote in a free election.” As Benjamin Wittes, editor-in-chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution, put it: “This is the Trump presidency. There is no evi- dence that any chains can bind this president: not lawyers, not norms, not procedures, not repeated screw-ups of the sort that educate other leaders, and certainly not the mere expectations of decent public servants. But the problem is that the United States is res- ponsible for his actions—and we are paying daily the price for them, particularly in our international relations but also in our domestic governance. It simply will not do any more for politicians to shield their eyes and say the equivalent of “even if Trump did act inappro- priately, and I’m not saying he did, it’s not my problem because he’s a beastly minotaur and no chains can bind him”. Today there is no Sam Ervin or anybody of his stature in the American Senate. Both hous- es are controlled by Republicans, some of whom blindly support Trump and some who maintain a studied silence. But exceptional cir- cumstances give birth to exceptional heroes. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] NO EXCEPTIONS (Left) The Senate Select Committee pinned Richard Nixon and his cronies for their unethical practices in the run-up to the 1972 elections (Below) The sacked FBI director surgically rubbished the character and credibility of the most powerful man in the world, US President Donald Trump UNI
  • 6. Hunting for “Dayans” The reprehensible custom of branding single women and widows as witches and grabbing their property continues in various states. Are our laws strong enough to act as a deterrent? 14 LEAD FOCUS ContentsVOLUME. X ISSUE. 31 JUNE19,2017 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: [email protected] website: www.indialegalonline.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. 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. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Contributing Editor Ramesh Menon Associate Editors Meha Mathur, Sucheta Dasgupta Deputy Editor Prabir Biswas Staff Writer Usha Rani Das Senior Sub-Editor Shailaja Paramathma Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualizer Rajender Kumar Graphic Designer Ram Lagan Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Advertising Valerie Patton Mobile No: 9643106028, Landline No: 0120-612-7900 email: [email protected] Circulation Manager RS Tiwari Mobile No: 8377009652, Landline No: 0120-612-7900 email: [email protected] PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatSuperCassettesIndustiesLtd.,C-85-86&94,Sector4,Noida,Distt. GautamBudhNagar,UP-201301. Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Managing Editor (Web) Parsa Venkateshwar Rao Jr Editor (Content & Planning) Sujit Bhar Senior Content Writer Punit Mishra (Web) Technical Executive Anubhav Tyagi 6 June 19, 2017 All in the Family There is uneasiness about the appointment of standing coun- sels and advocates-general by various states since clout and lineage seem to be the decid- ing factors 20
  • 7. STATES REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:[email protected] Ringside............................8 Delhi Durbar......................9 Courts.............................10 National Briefs................12 Media Watch ..................38 Satire ..............................50 Cover Design: ANTHONY LAWRENCE | INDIA LEGAL | June 19, 2017 7 Whose Tech Is It Anyway The ministry might be playing favourites in a row between Monsanto and Nuziveedu Seeds. But this isn’t the full picture 28 AGRICULTURE Tango with India As a new world order emerges, Modi will try to be the right man in the right place for Europe and the US. Will this give India an edge on the world stage? 46 DIPLOMACY “Govt Obliged to Share Information” CIC Dr MS Acharyulu, who recently asked a post office to disclose data on demoneti- sation, says policy decisions that impact the lives of people should be made public 36 INTERVIEW How Democratic Is My Country? Public institutions are increasingly found lacking in moral courage to stand up to the Executive. This is undermining the functioning of India’s system of governance 44 BOOKS Jaipur Palace Wars Though the Supreme Court has settled this protracted feud over five-star heritage hotels, secret machinations by rival royals may yet disinherit the true heirs 40 PROPERTY Faith and Probity The Kerala High Court has directed AIIMS to let Muslim women wear the hijab while writing the MBBS entrance 26 24Murder Most Foul The killing of a Congress lawmaker has again brought to light the practice of political vendetta in MP Survival of the Smartest With the IT industry going through another churning, the only way to sail through is to innovate and learn new skills or face the sack 32 TECH
  • 8. 8 June 19, 2017 “ RINGSIDE These fireworks have no effect on Iran. They will soon be eliminated .... They are too small to affect the will of the Iranian nation and its officials. —Iran's supreme leader Ayatollah Ali Khamenei, reacting to the bomb and gun attacks in Tehran on June 7, as quoted on Iran's state TV I am convinced the Paris Agreement and broad cli- mate action is unstoppable. President Trump’s decision has given us a new sense of urgency. It’s also created a leadership vacuum, but like all vacuums, it will be filled. —Executive Director of the United Nations Environment Programme Erik Solheim, in The Times of India In terms of my political writing, very often, I actually feel even more rage than I show through the work. When I write fiction, I’m in my body [as] a very different person. There’s a great peace in me when I write fiction. —Author Arundhati Roy, in an interview to www.slate.com I am looking at women coming in as jawans. I am going to start it soon. Firstly, we will start with women as military police jawans... We have already started the process and women will now have an opportunity to show their grit and strength in tak- ing up challenges in com- bat roles and shattering the glass ceiling. —Army chief General Bipin Rawat, to PTI NDTV isn’t an overnight phenomenon, even they know that. If you are so eager to finish us, then Sir, some day, let’s sit across each other. We’ll be there, you’ll be there and so will be a Live Camera. —NDTV journalist Ravish Kumar, on his Facebook page Alleged that Roys owe banks `48 crore. Adanis owe banks 72,000 crore. May we expect Gautam bhai to be raided next? —Historian Ramachandra Guha, on Twitter Triple talaq is an enormity; it is a legacy of a pre- Islamic Arabia…. This obnoxious practice must be put an end to, as has been done in almost every Muslim country. The Indian Muslim man is no special creature to continue to have this special right. —Former Union minister Arif Mohammad Khan, in The Indian Express Any change in an entrenched interest, who- ever it be, is discomfort- ing. But law of change goes on. It’s universal. —Puducherry governor Kiran Bedi, on Twitter
  • 9. | INDIA LEGAL | June 19, 2017 9 The Congress Working Committee meeting last week gave a hint of where the party is headed. The long-awaited decision to elevate Rahul Gandhi as Congress party president this October was not as unexpected as Sonia’s message. She appar- ently took some select- ed leaders aside and informed them that her ill- health did not allow her to carry on as president and doctors have suggested she move to the hills where the air is cleaner. In fact, the CWC meet was held in her house, not the party headquarters, an indication of her restricted move- ments. It is a measure of their respect for her bind- ing force and political acu- men (or lack of it in the case of the son) that the leaders asked Sonia to continue to oversee party strategy and progress. She is likely to move to the house being built in Chharabra, near Shimla by daughter Priyanka, which is almost complete. Her favourite summer getaway is Kausani in the Uttarkhand hills where a close family friend has a house but for a lengthier stay in cooler climes, Shimla makes more sense. It has already been sur- veyed by the SPG. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Finance Minister Arun Jaitley, who also handles the defence portfolio, is finding his hands are too full. So, every now and then he skips functions which a rak- shamantri is expected to attend. Last fortnight, at the last minute, he pulled out from an Indian Navy-FICCI conference on Warship Building which is an annual event normally presided over by the defence minis- ter. Jaitley’s inability to make it to the meet not only underlined how busy he is, but also how important it is to have a dedicated person handling the defence portfolio. Perhaps the cabinet reshuffle, predicted to follow the Presidential polls may bring relief to Jaitley and several others with multiple ministries under their charge. An inside track on happenings in Lutyen’s Delhi Delhi Durbar FINALLY, THE CORONATION SINGH IS NOT KING It now appears that the controversial notification regarding curbs on the country’s cattle trade was because of a procedural goof-up and a premature death. The notification was issued five days after Environment Minister Anil Madhav Dave passed away unexpectedly. It was Dave’s brainchild and his successor, Dr Harsh Vard- han, was still finding his feet when, two days later, the notification, signed by Dave, was issued. Dave was a member of the RSS and the decision was in tune with his world view. However, in a proce- dural faux pas, the file was never shown to his suc- cessor with bureaucrats assuming it had the approval of higher-ups in the government. CATTLE CONFUSION DOUBLE SHIFT One of those present at the CWC meeting was in for some good-natured ribbing. Former Prime Minister Manmohan Singh is to be resurrected in that role, albeit in celluloid. The biopic on his tenure is already being shot and is loosely based on the book, The Accidental Prime Minister by Sanjaya Baru, his former media adviser. Dr Singh will not be pleased with the choice of the actor who will play him—Anupam Kher, who has been a staunch supporter of the Modi government. The Congress is not happy either; the film’s title is the same as the book which did not show Dr Singh in a good light, or Sonia, for that matter. Plus, it is due for release in December 2018, shortly before the next Lok Sabha elections.
  • 10. The centre and Manipur submitted in the Supreme Court that allegations levelled against Manipur CM N Biren Singh by the parents of a youth shot dead by Singh’s son 2011 were false and made-up. They alleged that there was a clear attempt to sensationalise and extract publicity out of the case. Biren Singh’s son Ajay Meetai had in March 2011 shot Irom Roger for over- taking his car. Irom later died of bullet wounds. An Imphal court had held Ajay guilty of culpable homicide and senten- ced him to a five-year jail term. Later, Ajay had moved the Manipur High Court for bail but the petition was challenged by Roger’s mother. The Supreme Court is hearing the appeal of Irom’s mother Chitra Devi who said that Singh was using his official clout to threaten them and had even roped in terror organisations to browbeat them from pursuing the case. They had pleaded for protection in Manipur and claimed that they had to leave the state and come to Delhi. They also alleged that no lawyer was willing to take up their case in the state. The apex court had asked the centre to arrange for their security. The Manipur government assured the Court that security cover under Manipur rifles had been provided to the parents and the social activist who brought the case into the limelight. The centre told the court that the lawyer appearing for the parents, Utsav Singh Bains (a Supreme Court lawyer), would also be given security dur- ing his appearances in the high court. Bains had allegedly received threats from the People’s Liberation Army. However, the state government claimed that the allegations were found to false after scrutiny. According to it, the Manipur Bar Association also refuted Chitra Devi’s complaints that lawyers in Manipur were not fighting her case. The apex court will hear the matter again in July. Punish TN milk adulterators The Supreme Court refused to respond to the plea of advo- cate Mathews J Nedumpara, who wanted a stay on a jail term awarded by the apex court to his client, Justice CS Karnan of the Calcutta High Court. Karnan is yet to be arrested as per Supreme Court’s order on May 9 which had held him guilty of contempt and awarded him a six-month jail term. The vacation bench said it cou- ld not interfere in the order passed by a seven-judge bench and asked the counsel to seek relief from the same bench. Earlier this month, the Court had declined to list the matter and to look into Karnan’s plea for annulling the jail order on maintainability grounds. Karnan has remained untrace- able to police teams from West Bengal and Tamil Nadu till date. Courts 10 June 19, 2017 Centre, Manipur flay Irom’s mother Pointing towards reports about rampant adulter- ation of milk by private milk companies in the state, a petitioner pleaded in the Madras High Court that the punishment mandated in the IPC for adulteration be incr- eased to life imprisonment. Advocate AP Suryaprakasam wanted the High Court to ask the government to amend Section 272. Citing statements made by the dairy development minis- ter of the state—who had admitted that private milk suppliers were indeed adulter- ating milk—the petitioner blamed the state government for its laxity in taking strong action against adulterators and for not stopping the practice. The High Court took str- ict cognizance of the issue and instructed the state gov- ernment to update it on the action taken so far. The government was also asked to file its response within two weeks. The government, on its part, assured the Court that a panel would be formed to look into the matter. The case is listed for June 19. No relief for Karnan
  • 11. The Ministry of External Affairs must inform all embassies, consulates or high commissions that people coming to India must be well versed with Indian laws, especially regarding possessing arms, so that they do not get into unnecessary trouble, the Delhi High Court observed. The Court was referring to “frequency of registration of such cases as at hand…” The Court’s observation came while hearing sub- missions for quashing FIRs against two foreigners (one from the UK and another from Kenya) under Section 25 of the Arms Act 1959. Although they had come to India under legal visas, bullets were found on them while they were leaving India. The Court was convinced that there was nothing to prove a “conscious possession” of bullets by the foreigners. It also noted that the bullets could not be used as the persons concerned were not carrying any firearms. The government’s lawyer too informed the Court that the petitioners did not know that they were carrying bullets. The FIRs were dismissed. Foreignersmustknow aboutIndianlaws Senior BJP leaders LK Advani, Murli Manohar Joshi and Union minister Uma Bharti were spared from attending the Special CBI Court in Lucknow daily for hearings in the Babri Masjid demolition case. The Court is hearing the case on a day-to-day basis. However, they would have to appear whenever the court asks them. All the three had pleaded against daily appear- ances. While Advani and Joshi cited old age, Bharti submitted that she had to travel extensively due to her ministerial duties. The Supreme Court had earlier revived conspiracy charges against all three and ins- tructed the Court to complete hearings and give the ruling within two years. Later, the special CBI Court had framed charges against all three and nine others. Empathising with prosecutors dealing with cases under the Prevention of Children from Sexual Offences (POCSO) Act because of the pathetic conditions they work in, the Delhi High Court sought a report from the AAP government in July on work environment and appointments. The Court was at pains to high- light the fact that these prosecu- tors were not even provided a private space to enable them to do “seri- ous lawyering”. They need to draft applications, replies, submis- sions, refer to vari- ous legal docu- ments, talk to clients, prepare cases, get in touch with probing officers and scrutinise records. For this, privacy is essential, the Court pointed out. It lamented that prosecutors could not be allowed to function from open spaces in court premises. How could prosecutors take on top lawyers from the other side during hearings without proper home- work, the Court asked. Aclutch of petitions plea- ding for a stay on the centre’s recent notification banning the sale of cattle for slaughter in livestock markets were struck down by the Kerala High Court recently. The matter will now be taken up by the High Court on June 28 for quick disposal. Responding to a PIL from You- th Congress State Secretary TS Saji, the High Court observed that the new rules were only related to trading of cattle for slaughter and there was no restrictions on slau- ghtering cattle or eating beef. The Court had earlier asked the centre to file its response on ques- tions raised on the after-effects of the new rule, but the centre did not get back at the time of hearing. The Court said it would wait for the centre’s reaction before taking up the petitions. It asked the centre to respond before the next hearing. The Supreme Court too will hear objections to the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 (Rules) on June 15. A man from Hyderabad, Moha- mmed Abdul Faheem Qureshi, had approached the apex court and claimed that the rule was uncon- stitutional. The Madras High Court had earlier slapped a stay on the cen- tre’s notification for four weeks. | INDIA LEGAL | June 19, 2017 11 — Compiled by Prabir Biswas Advani,Joshi,Bhartigetrelief Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Batting for POCSO prosecutors No stay on centre’s cattle slaughter order
  • 12. 12 June 19, 2017 Briefs Following Attorney General Mukul Rohatgi’s temporary extension, the ten- ure of five other senior law officers has also been exten- ded. The extension is expec- ted to be for two years, but the interim order says it was extended “till further orders”. The terms of Solicitor Gen- eral Ranjit Kumar and Add- itional Solicitor Generals Maninder Singh, Tushar Mehta, PS Narasimha, PS Patwalia and Pinky Anand have been extended. Only ASG Neeraj Kishan Kaul’s term was not extended, keep- ing in mind his letter to the government which said he wanted to be relieved from the assignment. As per the new order of Uttar Pradesh DGP Sulkhan Singh (below) any individual or group suspected of killing or transporting cattle for slaughter, will make it nec- essary to invoke National Security Act (NSA). The Act allows detention of any per- son for three months or more. The order was issued to all police officials present in a meeting in Lucknow on June 5. Singh said that the NSA, 1980, or Gangsters Act must be invoked against criminals indulging in cow slaughter or transporting cows for the same. The DGP has ordered the officials to make sure that the criminals do not get bail. NSA against cow slaughter in UP The government will appoint 44 judges to different high courts across the country. The names had earlier been returned by the govern- ment to the collegium for reconsideration. However, the collegium has been able to coax the government in taking them back. The appoin- tees include 29 judges to the Allahabad High Court, two to the Karn- ataka High Court, seven to the Calcutta High Court and six to the Ma- dras High Court. This was the second time the list was resubmitted to the government by the collegiums headed by Chief Justice JS Khehar (left). So far 17 judges have been appointed to the Bombay and the Jammu and Kashmir High Courts. Lawofficersgetextension The NGT has barred nine state pollution control board heads for failing to submit compli- ance reports of appoint- ments of chairpersons and member secretaries in the boards. The vacation bench, headed by Justice RS Rathore ordered board chiefs of Himachal Prad- esh, Haryana, Uttara- khand, Rajasthan, Kera- la, Sikkim, Tamil Nadu, Telangana and Maha- rashtra to stop function- ing, effective immediately. The judge said: “The judgement was delivered in August last year and you had to file compli- ance report in three mon- ths...We had given you ample time for complying with our directions.” A three-month grace period was granted to Delhi and two months to Punjab and UP. The mat- ter is listed for July 4. Govt to appoint 44 HC judges Punjab judge objects to “your ladyship” NGT bars 9 state pollution heads The practice of doing away with the use of “Your Lord- ship” while addressing judges has been a subject of discus- sion; it is seen as a relic of col- onial rule. An interesting ex- change between Justice Daya Chaudhary (below) and Advo- cate General Atul Nanda in the Punjab and Haryana High Court brought up the issue to the fore again. Nanda addre- ssed Justice Chaudhary as “Your Ladyship”. Justice Chaudhary objected to this, saying that it is “Delhi culture” and it won’t work in the Punjab and Haryana High Court. She also said that judges and advocates have no gender and they are not to be addre- ssed as lady judges or lady advocates. Solicitor General Ranjit Kumar
  • 13. | INDIA LEGAL | June 19, 2017 13 —Compiled by Lilly Paul Twitter: @indialegalmedia/ Website: www.indialegallive.com Contact: [email protected] Recently, the Madras High Court issued notice to the Tamil Nadu animal husbandry department over a petition filed by M Ravikumar, a part-time sweeper at the Vellodu sub-centre for the past 17 years. Ravikumar is working in the sub- centre since July 20, 2000, on a meagre salary of `2 per day without his services been regularised. The department had issued notification for vacancies to the post of assistants without considering his case. The Court, in its notice, mentioned that it was “inhuman” on the part of the government to keep poor employees like him unregularised for decades. Sweeper moves Madras HC The Supreme Court on June 9 directed that the government can- not force anybody to link his Aadhaar to his PAN for the purpose of filing his or her Income Tax Return. This also means that PAN remains valid even without Aadhaar. Despite this being an interim order—with the larger con- stitution bench to take it up later—it is a big defeat for the government which introduced this rule through the back door, in the form of Section 139AA, inserted into the Income Tax Act by the Finance Act, 2017. The Court also requested the legis- lature to “tone down” the provisions of the section. It also rejected argume- nts by petitioner Binoy Visman that this is violative of one’s Fundamental Rights. The Court did not touch all arguments associated with Article 21 as they are still pending with the lar- ger bench. No need to attach Aadhaar to PAN: SC Justice Ajay Kumar Mittal of the Punjab and Haryana High Court is set to be the next Chief Justice of the Delhi High Court. The post is current- ly handled by Acting Chief Justice Gita Mittal. However, this decision of the Supreme Court collegium, as reported in the media, cannot be put in practice before September. The sitting judge of the Delhi High Court, Justice SS Saron, is senior to Justice Ajay Kumar Mittal and technically the person due for the post. However, Justice Saron is retiring on September 3, which is why the new incumbent will take over after that. Justice Mittal to be Delhi HC Chief Justice Former chief ministers of Bihar, Lalu Prasad Yadav and Jagannath Mishra, appeared before a special CBI court in Patna in the fodder scam case. The case is related to the fraudulent withdrawal of `47 lakh from Bhagalpur treasury during the financial years 1993-94 and 1994-95. The CBI had regis- tered a case and filed a PIL against Lalu and Mishra, along with 42 others. The Supreme Court ruled last month that Lalu will have to stand trial in all the four fodder scam cases. Ahead of introducing an amendment bill in the parliament, the government is working towards fixing flaws of the Lokpal and Lokayuktas Act, including capping of the jurist member’s tenure. Currently, the tenure of the jurist member, who would be appointed by the prime minister-led selec- tion committee, is not certain. The ministe- rial panel is reportedly considering fixing the tenure to three years. The panel has noticed that the law has not specified basic details, such as the location of the Lokpal office and secretariat. Govt to fix flaws of Lokpal Act Ex-Bihar CMs appear before CBI
  • 14. Lead/ Witch-hunting 14 June 19, 2017 Y name is Pedki Devi. I live in a village in Jharkhand. When I was 15, I was married off. My eldest daughter was born three years later and subsequently, I gave birth to three more children. When I was 35, life came to a standstill when my husband died after an illness. Following that, my husband’s brothers tried to seize our land. They beat me up brutally and labelled me a witch. I filed a case against them. At the age of 40, I saw a police station for the first time. I learnt how to read and write at the age of 45. Now I am 50 years old.” This testimony is not recorded in a police report but is part of a math text- M“ Singlewomenandwidows areoftenbrandedaswitches tohumiliateandostracise themandseizetheirproperty. Whydoesthisreprehensible practicecontinueunchecked andareourlawsstringent enoughtoproviderelief? By Shankar Sinha and Meha Mathur 18-YEAR-OLD STRUGGLE Pedki Devi (right) labelled as a “witch”; (below right) a textbook chapter on maths in Jharkhand sketches her tragedy Diabolic Persecution
  • 15. licly humiliated. Neighbours are either unwilling to talk about the incident or are petrified to express their support. One aged woman who saw Pedki Devi distraught on the ground, covered with excreta over her face and had offered her water, now categorically denies she saw any crime being committed. She says she had merely offered water to a woman in distress. And one of the accused, Srikant Mahato, denies being present in the vil- lage on that fateful day in 1999. He also denies that he or his family members were after Pedki Devi’s property. But the truth lies elsewhere and it came into the public domain because Pedki Devi filed a case and decided book, Ganit ka Jaadu (The Magic of Maths), of the Jharkhand Education Project for Class III students. And the unfortunate story is followed by an exer- cise in which students have to mark, next to an illustration of a woman, the milestones of Pedki Devi’s life. The cruelty of it is that it is not fic- tional. The real life Pedki Devi is still running from pillar to post to get justice against the atrocity perpetrated against her in 1999. Like so many other cases of crimes against women being relegated to mere statistics, this case too has been reduced to an exercise in a textbook for school students. But the humiliation and cruelty that Pedki Devi of Kherabera village endured in March 1999 has not been captured in the bland account in the textbook. She can, however, still recall the day when her husband’s brothers pounced on her as she was returning from the fields. They dragged her and stripped her, forced her to ingest excreta and urine and beat her mercilessly. They conve- niently branded her a witch—the evil force that killed her husband. When her daughters saw their moth- er being assaulted, they rushed to her rescue, but they too were beaten up. One of them, Purni, suffered a miscar- riage as a result. Pedki Devi spoke to India Legal’s sister channel APN, about the pain and humiliation meted out to her some 18 years ago. And as she faced the camera in front of her ramshackle mud home, one could see the 12 acres of land which had become the bone of contention. Pedki Devi vividly remembers the spot where she was pub- | INDIA LEGAL | June 19, 2017 15 Brandingwomenaswitchesismoreofatoolusedbylandgrabbersto deprivefamiliesoftheirproperty.Itisalsousedasaweaponof revengeagainstwomenwhorefusetoyieldtosexualadvances.
  • 16. she would not take the humiliation lying down. In 2004, a trial court sentenced the culprits to one to four years in prison. But they went in appeal to the Jharkhand High Court which granted them bail. CASE DITHERS Unfortunately, Pedki’s lawyer dithered, for reasons best known to him, in pursu- ing the matter in court. He did not inform his client about the hearings and as a result, she failed to turn up in court twice on appointed dates. The case soon lost direction. Meanwhile, the embold- ened in-laws began to openly threaten Pedki and her family with dire conse- quences. There are allegations that they may have had a hand in ensuring that the case languished in the courts. It is clear that seizing property was what motivated the in-laws to label Pedki Devi a witch. While rural soci- eties, where superstition reigns supreme, do resort to occult practices to “neutralise” evil forces or for healing purposes, the branding of old and wid- owed women as witches is a matter of convenience. Often, the real motive is to throw them out of their property or to abandon them if they are becoming a financial burden for the family. Arun Kumar Naik of Jeet, an NGO that is working in Jharkhand, explains the modus operandi: a scare is deliber- ately created around a person, usually an old destitute woman. At times, young women are also targeted as witches, and in such cases, the motive is more often than not sexual exploitation. Once branded, the woman becomes an outcast in her own village 16 June 19, 2017 T here are several laws that deal specifically with witchcraft and “witch” related offences. The first was the Prevention of Witch (Dayan) Practices Act 1999 enacted by Bihar. Later, when Chhattisgarh and Jharkhand were created in 2001, they too enacted laws to address the witches issue. Both adapted the 1999 Act. Jharkhand introduced the Prevention of Witch-hunting (Dayan Pratha Act) in 2001 and Chhattisgarh passed the Tonahi Pratadna Nivaran Act in 2005. Later, some other states followed suit. It was a high court directive to Odisha that led to the enactment of the Odisha Prevention of Witch-hunting Act 2013. The Odisha initiative was followed two years later by Rajasthan passing the Rajasthan Prevention of Witch-hunting Act 2015. In the same year, the Assam Witch-hunting (Prohibition, Prevention and Protection) Bill was passed and awaits enactment since it was sent back to the state by the Union home ministry for review. Two bills—the Maharashtra Prevention and Eradication of Human Sacrifice and Other inhuman, Evil and Aghori Practices and Black Magic Bill and the Karnataka Prevention of Superstitious Practices Bill—have been passed but not yet enacted. Both address the problem of witch-hunting. So far so good. But the big question is how effective are the enacted laws on the ground? Partners in Law, a Delhi- based legal resource group working in the fields of social justice and women’s rights, conducted an 18-month study in Jharkhand, Bihar and Chhattisgarh. Their 2015 report—Contemporary Practices in Witch-Hunting: Social Trends and Interface with Law—spells out the prob- lem areas in laws dealing specifically with witch-hunting. The study reveals what is wrong with the criminal justice system. For example, in one-third of cases, the victims never approached the police or were prevented from doing so by vested interest or rela- tives. Many of the cases registered were closed because of shoddy investigation, lack of evidence and witnesses or a compromise being worked out between the victims and the perpetrators. It is only when publicly orchestrated violence occurred that the police took it seriously. To quote the report: “Based on our data, we can infer that the law inter- acts with victims only when physical vio- lence involving public humiliation is involved, but such cases do not proceed to the appellate courts unless they per- tain to or result in murder.” In short, the state does not normally appeal against acquittal in cases of witch-hunting. According to the report, the special laws on witch-hunting on paper focus on preventive action and addressing harassment where the motive is clearly linked to “witch” accusation. These laws criminalise the acts of “identifying” and “exhibiting” any person as a witch along with the mental and physical torture which accompanies it. All the offences under the special laws are cognisable and non-bailable. They seek to prevent escalation of victimisation through early intervention by the police. H owever, very few reported cases are registered under the new laws. The study examined 85 FIRs and found that only six were registered solely on the basis of special laws. Notes the report: “The data categorically shows that the mischief that the special law was enacted to correct remains unaddressed, with no action or prosecution against preliminary forms of harassment. In fact, the data establishes that special laws are rarely, if ever, used alone, and almost never at the preliminary stages to pre- vent escalation of violence. Our data from police records show that almost all cases are registered under provisions of the Indian Penal Code (IPC), with one or more provisions of the special law, to establish if it (witch-hunting) were the motive of the crime. The majority of the provisions of the IPC invoked in the records are related to beating, hurt, tres- pass, theft, murder, conspiracy, etc—with more bailable rather than non-bailable offences being invoked.” According to police officials, the IPC is invoked since the special laws are not comprehensive enough to deal with LawsandLimitations Lead/ Witch-hunting
  • 17. | INDIA LEGAL | June 19, 2017 17 defamation, trespass, intimidation, van- dalism, destruction of property or mur- der. So, even when the new laws are invoked, it is in conjunction with the IPC. The police find it easier to frame their cases under the existing laws. S ashiprava Bindhani, Odisha’s infor- mation commissioner, who filed a PIL in the High Court which led to the enactment of the special law in the state in 2013, speaks of how women who break from conventions are usually the targets of witch-hunts. “Having grown up in the Mayurbhanj district of Odisha, I observed the exploitation per- petrated through witch-hunting against women who threatened social struc- tures.” She is of the view that since the legislation has come there is some change--cases are being registered and people are sympathetic to the victims. However, legal experts do not see any dramatic change. So, have the special laws helped? Madhu Mehra, executive director of Partners in Law, and Anuja Agarwal, associate professor, department of soci- ology at Delhi University in a joint paper published in The Economic and Political Weekly have this pertinent observation to make: “The parading of women, ton- suring the hair and blackening the face are forms of violation that involve more than physical injury, as they intend and result in humiliating the victim, destroying her social standing and dignity in the community. These need to be part of the penal code, given their social reso- nance—although largely associated with caste atrocities perpetrated against Dalits, there is increasing evidence that such victimisation is also used to punish social and sexual transgressions, which may or may not take the form of witch-hunting.” Thus, the new laws may have filled a legal vacuum but do not look at the socio-economic situation that encour- ages witch-hunting. It is known that it thrives in areas where there is lack of education, economic depravity, health facilities and access to justice. But the criminal justice system continues to see the malaise as one rooted in irrational, barbaric practices and superstition. This is even reinforced in several judgments, one of which calls it a tribal custom of the “Middle Ages” which is perpetuated till today. Any law or amendments made to an existing Act has to factor the socio-eco- nomic context rather than see witch- hunting as merely an irrational act guided by superstitious beliefs. Also, the motives for witch-hunting have changed over the years. Laws have to take into account the present- day reality. Illustration: Anthony Lawrence
  • 18. and is ostracised. The problem is not endemic to Jharkhand alone. One hears similar stories from across the country—of women being branded as witches and blamed for the death of a family mem- ber, the failure of a crop or any other untoward incident. SOME EXAMPLES Here are a few illustrative instances: Badar village, Balrampur district, Chhattisgarh, 2016: A 35-year-old woman is beaten to death by her broth- er-in-law and his son on suspicion that she is responsible for a child’s death Mayangi village, Odisha, 2015: A 35- year-old woman is accused of being a witch and forced to eat excreta Anglong district, Assam, 2014: A gold medalist in javelin who represented the state in several national meets, is tied up in a fishing net and brutally beaten up by villagers on suspicion that she indulged in witchcraft Smit village, Shillong, Meghalaya, 2013: Twelve persons arrested for the lynching of three in a case of witch hunting. The accused were reportedly related to the victims The statistics from various states on witchcraft-related murders is, to say the least, shocking (see box). However, the situation in Jharkhand is the worst. Social activist Ajay Kumar Jaiswal, who has been working at the grassroots level in the state for the last 26 years says that his team surveyed 332 villages last year and found 300 cases of women being harassed as witches. He says: “Jharkhand has 32,000 villages and every village has such cases. So, thou- sands of women are suffering. We need a very big awareness campaign to eradi- cate this problem.” Dr Louis Marandi, Jharkhand’s min- ister for social welfare, women and child development and minority affairs says the government is doing its bit through campaigns using street theatre and workshops. But, she admits it will be a long haul: “We can’t eradicate the prob- lem completely. We can’t be watching over people 24 hours a day,” she says adding that she has no knowledge of the Pedki Devi case. “If you give us all the papers and her story, we will try to pro- vide her protection through the local administration.” Jharkhand is among the few states to have enacted a specific law—the Prevention of Witch Practices Act, 2001. Other states also have laws in place to counter the malaise (Accompanying story). But these have not had the desired impact. This is perhaps why activists like Jaiswal point out that the new law is not an effective deterrent in Jharkhand. “One year of punishment and `2,000 as 18 June 19, 2017 Lead/ Witch-hunting Tribalsocietiesalwaysbelievedin goodandevilspirits.Thegood spiritsauguredwellnessandheal people.Theevilforcescould wreakhavocandcausedisasters. “Medicalfacilitieshavenotreached manypartsofthecountry.Andin Jharkhandthereisadeep-seatedbelief thatsomepeoplehavethesupernatural powerofhealingaswellasdestroying things.So,ifsomethinggoeswrong youendupblamingthatperson.” —SubhashMendupurkar,directorof theSocietyforUpliftmentthrough RuralAction “Wecan’teradicatetheproblem completely.Wecan’tbewatching overpeople24hoursaday...Ifyou giveusallthepapersandPedkiDevi’s story,wewilltrytoprovideherprotec- tionthroughthelocaladministration.” —DrLouisMarandi,Jharkhand’s ministerforsocialwelfare,women andchilddevelopmentand minorityaffairs “Jharkhandhas32,000villages andeveryvillagehassuchcases. So,thousandsofwomenare suffering.Weneedaverybig awarenesscampaigntoeradicate thisproblem.” —AjayKumarJaiswal,socialactivist whohasbeenworkingatthegrass- rootslevelinthestateforthelast 26years
  • 19. fine is hardly a punishment.” According to him, a more stringent punishment is required like the Rajasthan Prevention of Witch-Hunting Act, 2015 which pro- vides for seven years rigorous imprison- ment extending up to a life term, and/or `1 lakh fine. This, he said, is more in keeping with the nature of the crime. THE ORIGINS Tribal societies always believed in the tradition of good and evil spirits. The good spirits, it was believed, could bring about wellness in the community and heal people. The evil forces, on the other hand, could wreak havoc and cause nat- ural disasters like floods, famine, disease or drive away the rain. In tribal commu- nities, it was a woman who was endowed with the power of healing. However, the line between good and evil was always a thin one. Traditionally, it was the all-knowing “Mahan” or seer of the village who identified the woman with the evil force residing inside her. She would be branded as a witch, parad- ed naked and killed and her family members ostracised. Anthropologists like KS Singh, former director of the Anthropological Society of India, have been quoted as saying that the concept of black magic and white magic got fur- ther underlined after India became colonised by the European powers. Subhash Mendupurkar, director of the Society for Upliftment through Rural Action (SUTRA), has worked extensively in Jharkhand. He traces the problem to lack of medical care. “Medical facilities have not reached many parts of the country. And in Jharkhand there is a deep-seated belief that some people have the supernatural power of healing as well as destroying things. So, if something goes wrong you end up blaming that person. Once mod- ern medical facilities are made accessi- ble such beliefs will fade away,” he says. But today, branding women as witch- es is more of a tool used by land grab- bers to deprive families of their proper- ty. It is also used as a weapon of revenge against women who refuse to yield to sexual exploitation. Also, the campaign of a political party is sometimes derailed, particularly within tribal areas, by branding one of its activists as a witch. Such exploitative behaviour is sought to be explained as part of local customs and therefore, acceptable. While stringent laws will help, changing societal attitudes and mindsets is the real challenge. Forget a tribal state like Jharkhand, we have a situation where even in a cosmopolitan city like Mumbai, a leading Bollywood actor was recently accused of practicing witchcraft by her embittered ex-boyfriend. Superstition, as they say, runs deep. And there are enough people waiting to exploit the vulnerable. —With inputs from Rafi Sami and Irfan Amayur | INDIA LEGAL | June 19, 2017 19 2015 NCRB figures on registered witchcraft-related murder cases: States No. of Cases Jharkhand 32 Odisha 26 Madhya Pradesh 20 Telangana 14 Gujarat 13 Chhattisgarh 13 Maharashtra 5 Karnataka 5 UP 3 Bihar 2 Tripura 1 Andhra Pradesh 1 TOTAL 135 ListofShame WASHING HIS HANDS OFF One of the accused in the Pedki Devi case, Srikant Mahato, has denied his involvement Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected]
  • 20. 20 June 19, 2017 F you are a VIP’s son or daughter, chances are that largesse will be showered on you by the state even without you seeking it. Ask Raktim Gogoi, Supreme Court judge Ran- jan Gogoi’s son, who was chosen as one of the lawyers to represent the Punjab government in the apex court and other courts outside Chandigarh. The selection came as surprise for him. However, after the lawyers list was released in March 2017, he wrote to the Punjab government to withdraw his name as it was included without his consent. Similar was the experience of Saket Sikri, son of Justice AK Sikri of the Supreme Court. He wrote a letter to the Punjab government requesting that his name be removed from the list. Sikri told India Legal: “I wrote to have my name withdrawn as my consent was Cloutand Lineage Theappointmentofgovernmentlawyersandadvocate generalshasoftenbeenquestionedbecausetheyaremostly connectedtoministersandjudges.Thisleavesethical lawyersfeelingshortchanged By Usha Rani Das I APPOINTMENT LETTER Illustration: Anthony Lawrence Focus/ Standing Counsels
  • 21. | INDIA LEGAL | June 19, 2017 21 not taken. I did not even apply for the post.” But he refused to comment on why his name was included in the list in the first place. Were these cases of misdirected favouritism? There is no way of conclu- sively determining that. But one can say that some lawyers are favoured over oth- ers and the reason may not always be professional competence. Remember, there was a controversy over an appointment in Madhya Pra- desh in November 2014 when Aditya Shankar, son of Union Minister of Law and Justice and Information Technology Ravi Shankar Prasad, was appointed as the standing counsel of the state govern- ment in the apex court. Immediately after the appointment, BS Banthia, who was the standing counsel of Madhya Pradesh for 12 years, raised objections, alleging it to be a case of “favouritism”. He said that Shankar was appointed to represent the state in the apex court though he had not passed the man- datory Advocate-On-Record (AOR) examination. Banthia was quoted by a newspaper as saying that “his only qualification is that he is Ravi Shankar Prasad’s son”. The Congress party had also raised objections, with its then leader of the Opposition in the Madhya Pradesh ass- embly, the late Satyadev Katare, point- ing out that the post should have gone to someone from the state, and not an outsider like Shankar. When Aditya Shankar was contacted, he told India Legal he had suspected he was being favoured and had hence rej- ected the MP government’s offer twice. He said: “I knew I was being appointed because I was Ravi Shankar Prasad’s son. It had nothing to do with my cre- dentials…. But when they offered me the position a third time, I took it as a chal- lenge and accepted it. As soon as the allegations came in February 2015, I quit the office the following month and joined Kaden Boriss (a law firm). It is also true that I did not pass the exami- nation but we all know that the Advo- cate-On-Record examination is just a formality.” LINEAGE COUNTS Instances of such appointments are apl- enty in the Supreme Court and High Courts of different states. While Aditya Shankar resigned and Gogoi and Sikri refused the offer, there are many gov- ernment lawyers who, though they were appointed thanks to their political affiliations, enjoy the benefits with im- punity. Legal experts note that over the years, the post of state counsels and advocate generals have become political appointments. The list of advocate generals selected by the Madhya Pradesh government over the years is telling. Pushpendra Kaurav, who became the additional ad- vocate general for Madhya Pradesh gov- ernment on June 6, 2017, is alleged to have got the post thanks to his affilia- tions with the RSS. He was earlier asso- ciated with the ABVP, the student wing of the RSS, during his student years. He started his career as a lawyer in 2001 un-der the tutelage of his maternal uncle and BJP leader Virendra Singh Choudhary. Kaurav had barely complet- ed seven years as a lawyer when the Shivraj Singh Chouhan government appointed him deputy advocate general. He was later promoted as additional advocate general. Kaurav succeeded Ravish Chandra Agrawal, who landed the post allegedly on the recommendation of former advo- cate general and senior BJP leader, Ravi Nandan Singh. Before Agrawal, senior lawyer from Gwalior and BJP leader RD Jain was the Madhya Pradesh advocate general. He had succeeded another BJP leader Ravi Nandan Singh, the first advocate general, after the BJP came to power in the state in 2003. In the Congress government prior to that, then chief minister Digvijaya Singh had appointed Vivek Tankha as advo- cate general. Tankha, who is now a Congress Rajya Sabha MP and senior Supreme Court lawyer, was just 43 then. His father-in-law late Colonel Jay Narayan Mushran was the finance "IknewIwasbeing appointedbecauseIwas RaviShankarPrasad’s son.Ithadnothingtodo withmycredentials.…As soonastheallegations came,Iquittheoffice.” —AdityaShankar,sonof UnionMinisterRavi ShankarPrasad “Iwrotetohavemy namewithdrawnas myconsentwasnot taken.Ididnoteven applyforthepost (ofgovernment counsel).” —SaketSikri,sonof JusticeAKSikriof theSupremeCourt A2012CAGreportforHaryana foundthatthesystemofappoint- mentoflawofficersfollowedin thestatedoesnotevenassess themanpowerrequirement.
  • 22. 22 June 19, 2017 minister in the Digvijaya Singh cabinet. Political appointments of law officers are rampant in Haryana and Punjab too. An RTI query by advocate Pradeep Kumar Raparia reveals that none of the applications received for the post of ad- vocate general of the Punjab and Harya- na government were invited or received from those appointed. His RTI even found that resumes of the applicants were asked after they were appointed by the state government. He alleges that a majority of those appointed as standing counsels and advocate generals were kith and kin of ministers, political lead- ers, senior bureaucrats, high court judges, police officers and MLAs of the ruling parties in the two states. COURT OBSERVATIONS Such appointments take place despite the 2016 Supreme Court ruling in State of Punjab & Anr vs Brijeshwar Singh Chahal & Anr. The apex court had ruled then that “appointment of Government Counsel must, like the discharge of any other function by the Government and public bodies, be only in public interest unaffected by any political or other extraneous considerations. The govern- ment and public bodies are under an obligation to engage the most compe- tent of the lawyers to represent them in the Courts for it is only when those appointed are professionally competent that public interest can be protected in the Courts”. The bench headed by then CJI, TS Thakur, had regretted that “the states continue to harp on the theory that in the matter of engagement of state coun- sels, they are not accountable and that engagement is only professional and/or contractual, hence, unquestionable. It is too late in the day for any public func- tionary or the government to advance such a contention, leave alone expect this court to accept the same”. Punjab, Haryana and Madhya Prade- sh are not the only states that are exp- loiting the system. Tamil Nadu too is filling the post of standing counsels in the High Court with lawyers who enjoy a cordial relationship with the party in power. The minute there is a change of government, the standing counsels will either be immediately replaced or will themselves relinquish their posts. This is an age-old practice prevailing in the state for the past 50 years. The appointment of kith and kin that have attracted notice could well be just the tip of the iceberg. India Legal found in its investigation that since the AOR exam is not mandatory to be appointed as a standing counsel, this is being wide- ly exploited. According to a former stan- ding counsel, the irony is that those who have not passed the exam have to hire an AOR lawyer to file a case in Supreme Court, which in turn increases the exp- enses the state has to bear—which is an unfair practice since it comes from the public exchequer. “For a standing coun- sel to be an AOR lawyer is in public interest,” he says. According to a source, there are even instances where an individual is the standing counsel of three states. For example, advocate CD Singh is the standing counsel of Madhya Pradesh, Uttar Pradesh and Chhattisgarh. Though there is no rule that prohibits this, it is quite impossible for an individ- ual to handle the responsibilities of three states, said the source. If we look at the history of standing counsels, he added, it is ripe with examples of rela- tives of VIPs getting the post though they may be “unfit” for the job. ARBITRARY APPOINTMENTS A 2012 Comptroller and Auditor General (CAG) report for Haryana fou- nd that the system of appointment of law officers followed in the state does not assess the manpower requirement, leave alone any worthwhile process of selection. The result is that more than half of those appointed were without any work, resulting in payment of idle salaries. The report stated: “The engage- ment of excess Law Officers without assessing the quantum of work and without resorting to fair and transpar- ent selection method, resulted in allow- “Acertaindegreeofcom- petencewasrequired.... Havesomemercyonthe courtstoo.Mereconnec- tionwithpoliticians shouldneverbethecrite- riatoappointanadvocate asgovernmentlawyer.” —SupremeCourt benchheadedbyCJI JSKhehar “Thestatescontinueto harponthetheorythatin thematterofengagement ofstatecounsels,theyare notaccountable….Itis toolateinthedayforany publicfunctionaryorthe governmenttoadvance suchacontention.” —SCbenchheadedby formerCJITSThakur Thestatesclaimthattheyare undernoobligationtofollowany definitemethodwhileappointing lawofficersasit’saprofessional engagement. Focus/ Standing Counsels
  • 23. | INDIA LEGAL | June 19, 2017 23 ABOVE APPEASEMENT: The Supreme Court has on numerous instances emphasised probity in legal posts ing more than 50 percent Law Officers without work and payment of idle salary of `2.22 crore.” In fact, in State of Punjab & Anr vs Brijeshwar Singh Chahal & Anr in the Supreme Court it was argued that with- out a proper system, the appointments may be made not because they are required but because “they come handy for political aggrandisement, appease- ment or personal benevolence of those in power towards those appointed”. Not just that. Dismissing a plea by the Bihar government to grant it a free hand in appointing government lawyers, the Supreme Court had observed in March, 2017, that a government lawyer should be appointed on the basis of an advocate’s performance in courts and not his political connections. The bench headed by Chief Justice JS Khehar, Justices DY Chandrachud and Sanjay Kishan Kaul stated: “The cases involv- ing the governments were crucial in many aspects touching key areas of gov- ernance. A certain degree of competence was required from the advocates to rep- resent the government and render mea- ningful assistance to the courts. Have some mercy on the courts too. Mere connection with politicians should never be the criteria to appoint an advocate as government lawyer.” In yet another petition that broke the cycle of political appointments in Tamil Nadu, advocate Vengadessane Vasantha- kumar had asked the Madras High Court to issue directions to the govern- ment to follow prescribed rules and reg- ulations in the appointment of standing counsels for various state departments. The first bench of the Court headed by the then Chief Justice Sanjay Kishan Kaul in August, 2016 directed the Tamil Nadu government to devise rules and regulations for the appointment of gov- ernment counsels. The procedure laid down by the Madras High Court was: The Advocate General of the state of Tamil Nadu should send a list of the names to the government. The Advocate General will then send the list to the government. A team of senior government officials will scrutinize the list and then appoint the standing counsels. Two senior advocates of the Court to be appointed as amicus curie But Vasanthakumar has refused to accept the proposals. He says: “There is no transparency in these proposals. For example, on what basis will the AG sel- ect an advocate and send his name to the government for his or her appoint- ment as standing counsel? As soon as the court opens after the vacations, we will take up the issue before the first bench which originally gave directions to the government.” There is also a controversy relating to the AOR exam. Clearing it is only man- datory for a standing counsel if he has to file cases in the Supreme Court. But why is it often referred to as a mere formali- ty? A Supreme Court advocate had this explanation: “The questions for the AOR exam are prepared by lawyers and whoever is well-connected can get hold of them well in advance. It hardly takes a month to prepare and pass the exami- nation. Hence, practically speaking, it is just a formality.” The states claim that the engage- ment of state counsels is a professional engagement and hence they are under no obligation either to prescribe a pro- cedure or follow any definite method while making such appointments. This is indeed a convenient position to take. India Legal was given to understand that a standing counsel cannot be dis- missed till the government of the day decides to change him/her. This and other arbitrary policies give political parties in power the leverage to bestow largesse on those they wish to favour. (With inputs from Vipin Pubby in Chandigarh, Ramasubramanian in Chennai, Rakesh Dixit in Bhopal and Neeraj Mishra in Raipur) Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] TheSChasruledthatthe appointmentofgovernment counselmustbe inpublicinter- est,unaffectedbyanypoliticalor otherextraneousconsiderations. Anil Shakya
  • 24. States/ MP/MLA Murder 24 June 19, 2017 N eight-year-old murder case has come to haunt Madhya Pradesh General Administration Department minister Lal Singh Arya. He was accused of killing Congress MLA Makhan Lal Jatav on April 13, 2009, when the latter was campaigning for the Lok Sabha candidate for Bhind seat, Bhagirath Prasad. Although the Gwalior bench of the Madhya Pradesh High Court quashed a non-bailable warrant against Arya on May 31, he is still not out of the woods as yet as the Court pointed out two legal flaws in the Bhind trial court’s order, which was passed on May 19. The Bhind court had made Arya an accused after booking him under Sections 302 and 120 (b) (conspiracy). However, the court stayed an arrest warrant to give the minister an opportunity to argue. HC RULING The High Court’s single-bench of Justice Sheel Nagu ruled that Bhind’s trial court judge had no power under the Criminal Procedure Code to stay his own order passed on the same day. Arya’s counsel Surendra Singh argued that the petitioner was made an accused on weak evidence and without his side being heard. Arya was named the main accused by Jatav’s family members and three eye- witnesses. But the police ignored these charges and instead, relied on Arya’s security guard who did not name any- one. The CBI, which later took over the high-profile investigation, spared the minister for “lack of evidence” against him. This is not surprising, as from the beginning, this case was characterised by political opportunism and shoddy investigation. However, the most stunning volte- face was seen in the case of Bhagirath Prasad, Bhind’s Lok Sabha candidate for whom Jatav was campaigning when he was shot dead in 2009. Prasad had cate- gorically stated then that Arya had got Jatav murdered. However, following the Bhind court’s May 19 order, he said: “Despite my statement, the CBI and the police had found no evidence against Arya. Even I did not have concrete evi- dence that Arya had ordered the killing. My statement at best was noncommit- tal.” He said attempts to target him were “politically motivated”. Incidentally, Prasad was principal secretary (home) till he took voluntary retirement in 2007. He contested the 2009 Lok Sabha elections as a Congress candidate but lost. However, he got a ticket again in 2014, but defected to the BJP and won from Bhind. POLITICAL RIVALRY It all began in the November 2008 assembly elections when Makhan Lal ThekillingofaCongressleaderhasexposedthisstate’s penchantforpoliticalvendettaandwiththegovernment backingtheaccusedminister,hecouldwellgoscot-free By Rakesh Dixit in Bhopal Open and Shut Case? THE PAST COMES TO HAUNT Congress MLA Makhan Lal Jatav (above) was killed on April 13, 2009 and MP minister Lal Singh Arya was accused in the caseA
  • 25. | INDIA LEGAL | June 19, 2017 25 Jatav, a little-known Congress worker, clashed with two-time BJP MLA Lal Singh Arya for the Gohad seat and won, taking everyone by surprise. As a shocked Arya licked his wounds, Jatav’s supporters further infuriated the BJP leader by hurling stones at him in a function. Arya had filed an FIR against Jatav and his supporters. On April 13, 2009, during campaigning for the Lok Sabha election, both Jatav and Arya came face to face at Chharenta village in Gohad around 8.15 pm. According to three eyewitnesses, Jatav was sitting in the front seat of his Bolero with his son, Arvind, while his two armed guards sat behind. He had halted the car and was speaking to villagers when two persons walked up and shot him twice. Arvind told the police he heard Arya shout: “Makhan ko maro, bachna nahi paye (Kill Makhan, he should not escape).” Eyewitnesses said Arya was present at the scene. ACCUSED MURDERED As the Congress mounted pressure for Arya’s arrest, the BJP government of Shivraj Singh Chouhan handed over the probe to the CBI. After investigation, the CBI identified six persons as accused and chargesheeted them in the special court in Bhind. Arya was excluded. Of these six, Tej Narayan Shukla was found murdered under mysterious cir- cumstances at his farmhouse in 2014 when he was out on bail. Senior Congress leader Dr Govind Singh claims that Shukla was in his party but later aligned with Arya. Shukla was reported to be angry with Jatav for raising some land dis- pute related to him in the state assembly. Singh claimed the deceased had expressed apprehensions that Arya could get him murdered. The murder case dragged on till April this year when the CBI finally filed an affidavit saying Arya was innocent as his name figured neither in the FIR nor in the chargesheet filed by it. EYEWITNESS ACCOUNTS Jadav’s son Arvind countered the CBI affidavit, and filed an application to include Arya as one of the accused under Section 319 of the IPC. Arvind’s lawyer, Ram Pratap Kushwaha, told the Court that his client had submitted a similar application soon after the mur- der also but the police chose to rely on the gunman’s FIR which did not name Arya. Arvind’s elder brother, Ranveer, said that his father’s guard, a govern- ment employee, had deliberately avoid- ed naming Arya, but there were other eyewitnesses too whose accounts eventually prevailed, leading to the arrest warrant. The Court order spurred the Congress and a delegation of the party led by the leader of opposition, Ajay Singh, called on Governor OP Kohli on May 27 to seek the dismissal of the minister on moral grounds. However, Arya told journalists that the CBI had given him a clean chit. “My counsel applied for quashing the warrant execu- tion, which the high court has permit- ted,” said Arya. However, the BJP has backed the minister, with state party president Nandkumar Chouhan saying there was no need for him to resign. After the High Court ruling, Chief Minister Shivraj Singh Chouhan too said the question of the minister’s resignation does not arise. Probity in high places seems to be in short supply. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] AftertheHighCourt ruling,Chief MinisterShivraj SinghChouhansaid thatthequestionof Arya’sresignation doesnotarise. Themost stunning volte-facewas ofBhagirath Prasad(right), Bhind’sLScan- didateforwhom Jatavwascam- paigning,when hewasshot dead. UNI
  • 26. 26 June 19, 2017 OR 19-year-old Fida Fathima from Kozhikode, the legal bat- tle she won in the Kerala High Court to protect her reli- gious rights under Article 25 (1) of the Indian Constitution was a significant one—both as a citizen and as a Muslim. The young girl was forced to take legal recourse after she received her admit card for the MBBS entrance examination conducted by the All India Institute of Medical Sciences (AIIMS) on May 28. What upset Fathima was that the admit card listed items which candi- dates were prohibited from bringing/ wearing into the examination hall and this included “headgear and scarf”. This was not acceptable for Fathima who had covered her head with a hijab since childhood in accordance with the prac- tice prescribed by her religion. She decided to go to court. CONSTITUTIONAL RIGHT On May, 24, the Kerala High Court upheld the plea filed by Fathima and three others and ruled that the direc- tions issued by AIIMS are a direct infringement of Article 25 (1) of the Constitution of Indian which says “…all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate any reli- gion of one’s choice”. The Court, while passing the judgment, directed AIIMS to ensure that “the restrictions as regards to use of headgear/head scarf should not be enforced against candi- dates who by virtue of Article 25 (1) of the Constitution have the protection to wear such dress as part of their faith.’’ An elated Fathima says that she was immensely pleased that she could take the examination on May 28 without F A Matter of Faith TheKeralaHighCourt’sdirectiontoAIIMStorespectreligiousrightsguaranteedunder theconstitutionandallowMuslimwomentowearahijabwhileappearingforan entranceexam,overturneda2015rulingbytheSupremeCourt By Naveen Nair in Thiruvananthapuram States/ Kerala/ Religious Attire Photos: Anil Shakya
  • 27. the Board to frame proper rules that do not infringe on the reli- gious rights of candidates. The CBSE was in for further embarrassment when girl stu- dents cutting across religious barriers raised a hue and cry about the totally unethical way in which they were frisked and checked at exam centres. One in Kannur, North Kerala was in the eye of storm when students alleged that even their under- garments were checked. “It was so humiliating. The invigilator asked me to unhook my top innerwear to check. I was so dis- turbed that I could not write the exami- nation,’’ a student told the media. After the huge outcry, an investiga- tion was initiated by the State Human Rights Commission which also visited the school in which the incident occurred and suspended four invigila- tors. Kerala Chief Minister Pinarayi Vijayan also directed the district admin- istration to initiate criminal proceeding against the school. Advocate Fathima Thahaliya, who was one of the petitioners along with Fida Fathima and others at the High Court in the latest case, says it is com- mendable that the High Court ruled in their favour despite the Supreme Court taking a different stand in 2015. “These are times when everything is being questioned—from what we wear to what we eat. So it is absolutely important to question such rules at the moment. When it is known that a highly sensitive issue is involved, why frame such rules? If it’s for preventing malpractice then there are many other mechanisms that can be used,’’ she says. The Kerala High Court’s recent ruling only reinforces that the funda- mental rights enshrined in Article 25 (1) are indisputable and no new rule can bend it. feeling guilty of having shown disrespect to her reli- gion.“I felt immensely proud when I got this judgment from the court because it upholds my right to practice my religion and yet at the same time pursue my dream in life. I hope this judgment will give strength to candi- dates like me in the future who are in a dilemma as to whether they should respect their religion or blindly fol- low such rules. Just because someone is practicing her religion doesn’t mean she should be denied opportunities in life,’’ Fida Fathima told India Legal. This is not the first time that the issues of headgear and scarf have come up before the Kerala High Court. In 2016, a similar case was heard by the court ahead of the pre-medical entrance examination conducted by the Central Board for Secondary Education (CBSE). The ruling went in favour of Amnah Bint Basheer of Thrissur who was allowed to sit for the examination wear- ing a hijab. The Court had observed that “the right of women to have the choice of dress based on religious injunctions is a fundamental right protected when such prescription of dress is an essential part of religion”. Hence on May 24, the Kerala High Court was only reiterating one of its ear- lier judgments. However, the advocate who appeared for Fathima, PE Sajal, claimed it was a landmark verdict. “What the court said in 2016 was for that particular case and that is why the issue has come up again. Even the AIIMS admit card was not fully clear about the rules. This judgment brings clarity on the issue and will set a prece- dent,’’ Sajal told India Legal. The Court directed Fathima and oth- ers who wear the head dress to reach the venue of the examination at least one hour in advance so that they could be thoroughly frisked by a lady invigilator. The Court has also added that such checks should be carried out “respecting religious sentiments”. DIFFERING VERDICTS It has never been smooth sailing for those who insist on wearing a hijab. In 2015, the CBSE had come out with a set of guidelines banning use of headgears and scarf in the pre-medical entrance examinations. This was done after ram- pant malpractices were reported from certain centres. Three girls had then approached the Supreme Court with a plea similar to the one filed by Fathima. The apex court turned it down and asked the students to appear in the examination without wearing any head- gear or scarf. However, in 2016 following wide- spread criticism, the CBSE relaxed the rules allowing veils and certain kind of burqas inside exams but again kept out the head scarf. Here again, Justice A Muhamed Mustaq of the Kerala High Court directed the CBSE to admit a Thrissur-based student and also asked | INDIA LEGAL | June 19, 2017 27 “Thesearetimeswhenevery- thingisbeingquestioned—from whatweweartowhatweeat. Whenahighlysensitiveissueis involved,whyframesuchrules?” —FathimaThahaliya,advocate Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected]
  • 28. Agriculture/ GM Technology 28 June 19, 2017 N May 16, when Additional Solicitor-General Tushar Mehta sought to intervene in a private dispute between Monsanto and its biggest erstwhile sub-licencee, Hyderabad-based Nuziveedu Seeds, it seemed like the agriculture ministry was not done with “fixing” Monsanto. Monsanto, an American company, is the leader in genetically-modified crop technology. In December 2015, its local joint venture had terminated Nuziveedu’s licence over refusal to pay trait fee dues as per their contract. Mehta wanted to make submissions on behalf of the government on the patentability of genetically-engineered traits like insect resistance and herbi- cide tolerance in plants, a week after hearings on the matter had ended. But the Delhi High Court did not take them on record. It told him to move an appli- cation to do so and said the principal parties would be entitled to reply. Incidentally, the views of the ASG and M Prabhakara Rao, the founder and managing director of Nuziveedu Seeds, Sowing Seeds of Doubt TheAdditionalSolicitor-GeneralintervenedbetweenMonsanto andNuziveeduSeeds,givingtheimpressionthattheministry isplayingfavourites.Butthismaynotbethefullpicture By Vivian Fernandes THE DEBATE IS ON The Bt Cotton plant (right), seeds (above) and the toxic bollworm (facing page). As per the PPVFR Act, if a proprietary GM trait is used by any breeder, the trait developer can make a claim for “benefit sharing” O
  • 29. | INDIA LEGAL | June 19, 2017 29 are quite similar. In 2015, Rao had made a case for widely-used GM traits to be considered as SEPs (Standard Essential Patents) which should be available on FRAND (fair, reasonable and non-discriminatory) terms. He was quoting from an article in the August 2014 edition of the Colorado Law Review. Rao has also been pushing for the traits to be patented under the Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act. STANDARD ESSENTIAL PATENTS India has protected these genetically- engineered traits under the Indian Patent Act, as amended in 2002 and 2005. But the ASG believes that is not good for the country’s food security. He asserts that Monsanto and its licencees want to cling on to protections under that Act because they are addicted to profiteering. He wants widely used pro- prietary GM traits to be regarded as SEPs like the technologies used in smart phones, available freely on payment of a fee fixed by the regulator. Monsanto’s bollworm-resistance trait, for instance, is found in almost all the Bt cottonseed planted in the country. Though the ASG agrees the traits by themselves and the method of putting them in plants can be patent-protected, once inside, they become part of the plant. Except for microorganisms, the patent act does not allow animals and plants, including seeds, and species to be patented. Nor can biological process- es be patented. The ASG was referring to a list of “exclusions” in the act. The ASG says GM traits once incor- porated in plants, become part of it and are indistinguishable from them. Rao, like the ASG, believes they lose their dis- tinct character once grafted into plant DNA. And the plants pass on the genet- ic traits to subsequent generations through a biological process, which again puts them in the excluded catego- ry. Hence, the correct law, according to the ASG, for protection of GM traits is the PPVFR Act of 2001. If a proprietary GM trait is used by any breeder (that is say, a seed company like Nuziveedu) in any of the seeds it registers with the PPVFR Authority, the trait developer can make a claim for “benefit sharing” on the authority. The PPVFR Authority will make payments from a National Gene Fund, made up of contributions by seed companies registered with it. WITHOUT PERMISSION The ASG believes the PPVFR Act allows seed companies as breeders to use the proprietary traits in their own varieties and hybrids without permission. But this is only for limited or one-time use. Once the traits are introgressed (trans- fer of genetic information from one species to another), the seed company will not need to use the genetic material of the trait developer. In other words, he seems to be making a case for legalised grab of IPRs. But Justice RK Gauba of the Delhi High Court, against whose order the two litigants had gone in appeal to the division bench, was not impressed by similar arguments advanced by Nuziveedu Seeds. In his order of March 28, he upheld Monsanto’s patent on insect-resistance traits in Bt cottonseed. He said the patent act has a section on “invention” by which it meant “a new product or process involving an inven- tive step and capable of industrial pro- duction”. The provision was inserted in 2002 so that patentees were not deprived of the reward for innovations based on skill and ingenuity and “above what occurs in nature”. The GM traits involve “laboratory processes and are not naturally occurring substances,” Justice Gauba averred. They are man- made and therefore, do not fall within the ambit of exclusions in the patent act. The gene which produces the boll- worm-killing toxic protein in Bt cotton plants is obtained from a soil bacterium. But the natural isolate cannot be TheASGbelievesthatoncethe traitsareintrogressed,theseed companywillnotneedtouse thegeneticmaterialofthe traitdeveloper.
  • 30. Agriculture/ GM Technology 30 June 19, 2017 straightaway inserted into the cotton genome. It has to be modified for the plant to accept it. It also has compo- nents attached so that the production of the toxic protein is switched on and off at particular points in the life cycle of the cotton plant. This gene construct when inserted can locate anywhere in the plant genome. There are hundreds or thousands of possibilities. The pro- duction of the toxin, its potency, the crop yield, its quality, and other proper- ties of the plant can be affected by the location of the insertions. Each of these insertions is called an “event”. The event chosen after screening, for patenting, would be the one that gives the best set of desired results. Justice Gauba said the PPVFR Act is for plant varieties. A plant variety, he said, is the lowest rank grouping of plants, distinguished from others by one or more characteristics. Relying on the 1991 international convention on pro- tection of plant varieties, he said, a sin- gle plant, a trait (like disease resistance or flower colour), a chemical or other substance (like oil or DNA), or a plant breeding technology (like tissue culture) do not meet the definition of a variety. Justice Gauba also termed benefit sharing as a “pot of gold at the end of the rainbow” because it depended on the breeders (seed companies) registering their varieties with the PPVFR Authority, which is not mandatory. Most seed companies, in fact, do not. Agribiotech companies say benefit sharing is for farmers and conservers of biodiversity. It is not for developers of GM traits which are manmade and cre- ated in laboratories. They say the law makes a distinction between the subject matter of an invention and use of an invention. If the subject matter is a plant or variety, it cannot be patented under IPA, but inventions whose use lies in plants and varieties can be patented. CONFLICT OF INTEREST? Incidentally, Rao was made a member of the PPVFR Authority in October 2016. He has been saying that seed companies should not have to obtain a non-objec- tion certificate (NOC) from the trait developer, as it gives the developer a handle to impose onerous terms. Once the Genetic Engineering Appraisal Committee recommends commercial release of a GM trait and the govern- ment accepts the recommendation, seed companies should be free to use the trait on terms fixed by the government and not the trait developer. Otherwise, it will result in a monopoly, he said. On a reference by the PPVFR Authority, the ASG has opined that such an NOC is indeed not necessary. It is not prescribed by the Act. An NOC goes against the grain of the PPVFR Act, he says, which is to promote the develop- ment of new varieties and hybrids. He says a mere declaration is enough. This should not be construed as an NOC. A self-declaration that genetic material used in transgenic varieties has been lawfully obtained is enough. Rao is said to enjoy considerable clout in the agriculture ministry, though this correspondent cannot vouch for it. His company was a big beneficiary (but not the only one) from the ministry’s 70 percent reduction in Bt cottonseed trait fees (payable to a joint venture of Monsanto). Bt cottonseed prices to farmers were cut by just four percent. Seed companies kept the savings. Given the agriculture minister’s pub- licly stated dislike of Monsanto’s “profi- teering”, it would be reasonable to assume that the ASG’s views have his consent. But a senior agriculture min- istry official said on a non-attributable basis, that the minister has not given his approval to the ASG’s legal opinion and the ministry has not vetted it. “It is a private matter between two companies and the government has no locus standi in the dispute.” Since the agriculture ministry had issued a notification in May last year waiving patents on GM traits and then withdrawing the notifi- cation hastily, one cannot say for sure that the issue has been laid to rest. The author is editor of www.smartindianagricutlure.in In2015,MPrabhakara Rao,founderofNuziveedu Seeds,hadmadeacase forGMtraitstobeconsid- eredasStandardEssential Patents,whichshouldbe availableonfairterms. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] AdditionalSolicitor- GeneralTusharMehta saysthattheGMtraits, onceincorporatedin plants,becomepartofit andareindistinguishable fromthem. JusticeRKGaubaofthe DelhiHighCourtwasnot impressedwitharguments ofNuziveeduSeeds.He upheldMonsanto’spatent oninsectresistancetraits inBtcottonseed.
  • 32. 32 June 19, 2017 Survival of the Fittest ThesearecriticaltimesforthissectorinIndiaandtheonlywaytosailthroughistoinnovate inbusinessmodelsandlearnnewskillssuchasartificialintelligenceandcloudcomputing By Imran Qureshi in Bengaluru STILL THE SUNRISE INDUSTRY? (Above) Employees at the Infosys campus in Bengaluru; (Facing page) The IT sector boom had created many work opportunities HE IT industry in India is ag- ain facing challenging times. Whether it is due to new tech- nologies or US visa policies, there is a churning that is tak- ing place. The focus is clearly to ride the curve of new job-threatening technolo- gies or face the sack. The insecurity has led to the renewed formation of a forum for IT employees which says that at least 56,000 employ- T ees are expected to lose their jobs over the next year. Though industry experts dismiss this insecurity as part of normal attrition and say it is standard practice to get rid of two percent of employees from the bottom of the pyramid every year, the fact remains that annual norms of appraisal have been made tougher. Ashok Soota, executive chairman, Happiest Minds Technologies and a for- mer chairman, Confederation of Indian Tech/ IT Industry/Job Losses UNI
  • 33. sition, which many in the industry see as yet another phase that could help it grow further. Fundamentally, the older form of doing business is changing. No more are clients coming up with large projects that last for a minimum of a couple of years. These have been reduced from 18- 24 months to just three months now. “New businesses are very project-orient- ed. It is platform-based and you need people to get it up and running. This requires fewer people and work is short- er in duration and cyclical,’’ said an HR manager on condition of anonymity. SENIOR POSITIONS Unlike previous years, what has added to the hue and cry this year is the purg- ing of people in senior positions such as vice-presidents or senior V-Ps. Mohan- das Pai, former CFO and HR head of Infosys, calls it a “clutter concentrated at a certain level’’. His counterparts, how- ever, call it “people stuck with legacy technology, little learnability and less adaptability’’. In short, it means that these managers don’t bring value to the work that the team is doing. A business head of a major company said: “There are a dime-a-dozen man- agers in this industry and they are not needed. Technology has also moved to a point where the industry can afford not to have them. The result is pink slips. The industry needs to have every res- ource that is billable. This is the reason for the purge in the middle.’’ But surely these people can be re- skilled? An HR consultant who previ- ously worked for an IT company said: “It is not easy. It depends entirely on the mindset of the individual and the tech- nology background. Today, the customer is no longer saying I want this to be done like earlier. He simply asks what can you do to improve things?” In the old days, said Soota, it was easier for people who couldn’t get re- skilled to move on because industry was growing at a phenomenal pace. Today, it simply cannot afford it. But it is not a bad thing as such people have another | INDIA LEGAL | June 19, 2017 33 started this, people trust us to take up their issues.” The reality is that automation is slowly taking over this industry and, as Soota says, will replace a “large number of low-value jobs by higher-value but smaller number of jobs”. This will also decrease the number of jobs in this sector. The nature of engage- ment in this sector will undergo a tran- Industry, said: “In an industry that is still a huge net hirer, employing upwar- ds of a million-and-a-half annually, you are bound to get rid of some people. But there have not been mass layoffs.’’ INSECURE LOT But there is genuine fear over job losses and it has led to the Forum for Infor- mation Technology Employees trying to get itself registered formally. It will be the first independent association of its kind in the country and is a bid to organise the estimated 2.8 million emp- loyees in India’s IT sector. The insecuri- ty runs high and the forum claims that at least 56,000 employees of top soft- ware companies such as Infosys, Wipro and Cognizant are expected to lose their jobs over the next year. J Jayaprakash, a member of the forum, said: “Since we ourselves are IT employees who have ”Indiancompaniesmayevengo touniversitiesintheUStohire localtalent,groomthemandput themonthejob.Wewillalsoget toknowwhatskillsetsthelocal peoplehave.” –AformerHRdirectorofanITfirm Rajeev Tyagi
  • 34. chance to become entrepreneurs. “After all, every other industry has an IT arm. The demand for IT skills will remain high because there is a huge amount of requirement everywhere,’’ he said. NEW CHALLENGES The change is happening at a phenome- nal pace. A business head of an IT com- pany said: “When the internet came, you could not find Java-trained individ- uals. Now, we are talking about data sci- ence and machine learning which makes artificial intelligence adaptable. These are the newer challenges. In fact, today, architects are still in demand, hands-on programmers are still in demand….” This is an industry that is quick to adapt and has done so every time it has faced a crisis. Whether it is the Y2K one, the Lehman Brothers crash or the US slowdown, the Indian IT industry sim- ply went on an overdrive and re-skilled and adapted to meet the demands of the market and grow. It is the same appro- ach it is adapting this time too, despite the new curbs on H1B visas proposed by the US government. In fact, even before Donald Trump came to occupy the White House, for- mer president Barack Obama’s rhetoric had forced the Indian IT industry to reduce its share of H1B visas in fiscal 2016. According to a report by National Foundation for American Policy, a US- based non-profit think-tank, seven top Indian IT companies saw a drop of 37 percent in H1B visas in 2016 as com- pared to 2015. These included TCS, Wipro and Infosys. It said, the 9,356 new H1B petitions for the top seven Indian-based companies approved in fiscal 2016 represent only 0.006 percent of the US labour force. So, it is hardly surprising that companies have reduced the number of applications for the cov- eted visas this year. Not just that, the sector is changing its business model of onsite deployment. From the days when almost 50 percent of a company’s work was outside India, it has been reduced to 30 percent. This means that the number of Indians who used to be sent abroad by IT companies will come down and could be reduced to as little as 10 percent. Kris Laxmikanth, CEO, Headhun- ters, said that with the new norms, Indian companies will be hiring Ameri- cans locally. One former HR director said: “Indian companies may even go to universities there to hire local talent, groom them and put them on the job. We will also know what skill sets the local people have.” Soota added that by sending higher skilled people abroad, Indian companies will evolve and move up the value chain. Some insiders were surprised at the proposal of Infosys’ founder, NR Nara- yan Murthy that top managements of IT companies take a cut in salary so that the younger lot does not lose jobs. “It is a cut-and-dried world today. If you are paid handsomely, professionals perform. Otherwise, they find better jobs and go away,” said an HR consultant. The only way then to survive this dog-eat-dog world is to move towards new opportunity areas like machine learning, artificial intelligence, IoT (Internet of Things) and robotic process automation. Doing a niche job is the security one needs. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Automationwillreplacealarge numberoflow-valuejobs byhigher-valuebutsmaller numberofjobs. —AshokSoota,executivechairman, HappiestMindsTechnologies Tech/ IT Industry/Job Losses 34 June 19, 2017 BRACING FOR LAYOFFS: Protests against mass terminations in TCS at the Town Hall in Bengaluru in January 2017 UNI
  • 36. He is not a bureaucrat nor is he an RTI activist. He was a professor at National Law University at Hyderabad before he became Central Information Commissioner. PROF MADABHUSHI SRIDHAR ACHARYULU, 61, underscores the importance of RTI and has the toughness of a man who knows law. He disposes off cases quickly, telling both sides what they should ask and what they should be doing. He tells PARSA VENKATESHWAR RAO JR that he has given decisions in nearly 10,000 cases in his three-and-a-half year tenure. His ruling asking a post office to disclose information about the impact of demonetisation made it to the headlines. He said information about policy decisions that impact the lives of the people should be made public. Excerpts from the interview: Interview/ CIC/ M Sridhar Acharyulu 36 June 19, 2017 Your ruling asking for disclosure of information about demonetisation created ripples. Should this be extended to others as well or is it confined to a particular instance, ie, post offices in the Air Force area? It can be applied across the board because that is what Section 4 (1)(c) of the RTI Act says. Policy decisions which impact public life have to be explained. If you read (4) (c) and (d), you will realise that the government should be sharing the information on its own without anyone asking for it. In this case, the appellant wanted to know the total currency exchanged at his post office, the people who exchanged it and the number of those who provided ID proof for exchange. In my order, I have asked the post office to disclose the number and volume of transactions “Govt Obliged to Share Information on Demonetisation” Are people recognising the scope of the RTI Act? Yes, they are. The transformation, where people are asserting their right to know what the government is doing, is hap- pening. From a secrecy-oriented socie- ty—a colonial legacy—we are moving to a transparency-oriented government. As a matter of fact, in a country of over 127 crore people, there should be more RTI applications seeking information than there are now. Media can spread aware- ness about RTI by writing about the rul- ings given by the CIC. Is knowledge of law important for the RTI Act to be effective in the hands of the people as well as the Information Commission? Knowledge of law is useful, but is not necessary. RTI Act is all about common without revealing the names of those who deposited or withdrew money. And I have elaborated the legal position as laid down in the RTI Act with regard to the government’s obligation to share information on policy decisions. Is it necessary for a person affected by a policy decision to exercise his right to know about it under the RTI Act? It is not necessary. In fact, in law, the issue of locus standi is very important. But the courts have reinterpreted the jurisprudence in the 1980s when they allowed PILs. It is not necessary that you have to be the affected party for you to raise an issue of public impor- tance in a court of law. The RTI Act does away with the idea of locus standi. You can seek information which is of public interest.
  • 37. taining to Gandhi’s assassination cannot be withheld. Do officials also understand the impor- tance of the RTI Act and is their atti- tude changing? It is happening. The change can be seen among the officials as well. But it is slow. There is, however, no doubt that 2005—when the RTI Act came into force—has been a turning point in Indian democracy. The fear of RTI will be a positive factor when officers make decisions. It makes them overtly accountable. As a Central Information Commissioner, you constantly deal with appeals. What is the nature of these appeals? The interesting part of these appeals is that 40 percent of them seek implemen- | INDIA LEGAL | June 19, 2017 37 sense. Each information commissioner is now aided by two legal consultants. Do any interesting cases come to your mind? Yes, the Mahatma Gandhi’s assassina- tion case. Did you know that three of the accused could not be traced? That one of them is a Telugu-speaking person called Kistaiah! The National Archives was not willing to share the information. The RTI applicant in this instance wanted to know the reasons for Nathuram Godse killing Mahatma Gandhi. There is a provision in the Criminal Procedure Code that allows the accused to have his say before the case is decided. That is how Godse was actu- ally able to make the long statement giv- ing his arguments. I gave the order that under the RTI Act, the information per- tation of the orders passed by the First Appellate Authority (FAA). It is usually the case that appeals to the CIC should be against the decision of the FAA. The procedure is this: When an Information Officer (IO) or Chief Information Officer (CIO) refuses to disclose information that has been sought under the RTI Act, an appeal is filed with the senior officer in the department. Many a time, the senior officer without applying his mind agrees with the decision of the IO and the CIO. But there are cases when the senior officer asks the information to be disclosed, but the IO and the CIO refuse to follow the directions. This is the flaw in the system. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Anil Shakya
  • 38. A mong annual awards for jour- nalism, one of the most credi- ble is the Red Ink Awards by the Mumbai Press Club. It is based on a survey of over 100 journalists in dif- ferent fields and consultations among senior members of the profession. The most coveted awards are the Lifetime Achievement Awards and Journalist of the Year, which have gone to two deserving journalists. Raj Kamal Jha, the low-profile editor-in- chief of The Indian Express who has maintained the independent legacy of founder Ramnath Goenka and also oversaw the Panama Papers scoop is awarded Journalist of the Year, 2017. The Lifetime Achievement award went to Vinod Dua, television veteran who made his reputation with Prannoy Roy in covering elections for Doordarshan, and then later, anchoring shows with a host of broadcasters, most notably NDTV. He currently anchors a daily webcast on the digital news site, The Wire. 38 June 19, 2017 Media Watch W hile Republic is wide- ly seen as a pro-gov- ernment channel, it is nowhere in the league of Subhash Chandra’s Zee Television network. His right- hand man and lead anchor of Zee News, Sudhir Choudhury, rivals Arnab in ultra-nationalism and Pakistan-bashing on every occasion, while Chandra him- self is an open and ardent fan of Narendra Modi. Their latest flag-waving measure was to become the only Indian chan- nel to boycott last Sunday’s India-Pakistan cricket match in Birmingham in the ongoing Champion’s League. Ignoring such an encounter in a cricket- crazy country seems foolhardy, but it was on par with the net- work’s hardline position on Pakistan. All other news chan- nels were providing constant updates on scores, live reports from the ground, and pre-and post-match panel discussions, except for the Zee network. The only reference to the match was when Zee News telecast footage of army jawans on the border celebrating India’s win! Patriotism has no boundaries. Patriotic Television Twitter: @indialegalmedia/ Website: www.indialegallive.com Contact: [email protected] Deserving Recognition Arnab Unplugged? I t took an editor like Harish Khare of The Tribune to tick off one of Punjab Chief Minister Amarinder Singh’s media advi- sors. It all started with the newspaper carrying an expose on how state power minister Rana Gurjit Singh’s for- mer cook had walked away with a `26-crore sand mining contract. The story embarrassed the government no end and the media advisor, a former journalist, was asked to pen a rebut- tal. He did so and pre- sented it to Khare. The Tribune editor ran his eyes over the copy and asked the CM’s man to rewrite it. He was told that the rebuttal would only confirm the story carried by the paper and not help the gov- ernment’s cause. “Please improve the English and say what you have to in 300 words. Also, build some logic," was Khare’s curt advice. Editorial Advice A ccording to insiders, Arnab Goswami has been gently advised by the man- agement of Republic TV that he must show balance in his news debates. The anchor launched the news channel in his sig- nature style with fiery one-sided ultra-nation- alistic debates where he attacked the Opposition parties and leaders across the spectrum spewing venom on them. But many in his organisation have begun to wonder what the “nation wants to know”? The debates have lost their USP and Republic TV has painted itself as the voice of the govern- ment. A survey conducted by the channel reveals that viewership has gone down and the “channel must have more credible and balanced content”. Republic TV’s promoter Rajeev Chandrasekhar has his “inbox” full of com- plaints from angry viewers and politicians. Does all this explain the channel’s “expose” on the Shriram Sena in Karnataka harass- ing Hindu-Muslim couples?
  • 39. NO HOLDS BARRED InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT May8, 2017 ` 100 www.indialegallive.com NI Lessons from Sukma The turf war between the judiciary and the executive over appointment of judges reaches another cul-de-sac. There are no signs of a modified Memorandum of Procedure which the law ministry was expecting Deadlocked Yet Again =PT)0VT)BTg) 0SSaTbb) 2Xch)BcPcT)?X]) ?W^]TATb)UUXRT)TPX[) 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%'6PdcP1dSSW=PVPa=830D?! ( CTabR^]SXcX^]bP__[h?[TPbT_a^eXSTdb#fTTZbc^bcPach^dabdQbRaX_cX^] SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS For advertising subscription queries [email protected] HTb8f^d[S[XZTc^bdQbRaXQTc^8=380;460;PVPiX]TU^acWT^UUTaX]SXRPcTSQT[^f Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends CXRZ^]T CTaHTPab =^^U8bbdTb 2^eTa?aXRT` H^d_Ph` H^dbPeT` BPeX]V HTPa $!8bbdTb $! !% !% $ !HTPab #8bbdTb # # % %!# % STORIES THAT COUNTSTORIES THAT COUNT thh es ree m ee nn InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT May15, 2017 ` 100 www.indialegallive.com NI Exciting New FrontierIndia is poised to enter the international arbitration arena in a big way High Court says: “The worst judgment in recent times” Real estate law: dead end for fraudsters NirbhayaJudgment SupremeCourtupholdsdeathsentence,saysthere’sno scopeformagnanimityinthisbrutalcrime STORIES THAT COUNTSTORIES THAT COUNT iirrn ww udd see in InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT May22, 2017 ` 100 www.indialegallive.com NI Bachi Karkaria recalls the case that shook India Sweetheart Affair NAVI MUMBAI AIRPORT GVK-MIAL is flying high after landing a `16,000-crore contract from which other bidders mysteriously backed off, giving the infrastructure company a windfall deal at the expense of taxpayers ArtistImpression WhatsApp: Killing the messenger? STORIES THAT COUNTSTORIES THAT COUNT faatraa ct InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT May29, 2017 ` 100 NI Ransomware: The New Digital Threat and How to Stay Safe SELF-FULFILLING PROPHET Three Years of Narendra Modi Like a quick-change artist, he has displayed an uncanny knack of reinventing himself to adapt to political exigencies and conjuring up worlds that people want to believe in, says Shiv Vishwanathan Triple Talaq: The Supreme Test alT T www.indialegallive.com ROO STORIES THAT COUNTSTORIES THAT COUNT odd caa an Vis InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT June5, 2017 ` 100 NI Arvind Kejriwal: Perils of Power The Bots ComethMajor law firms are introducing Artificial Intelligence systems which could rewrite the role of lawyers. Will this prove a game-changer for the profession? Antarctica: India’s Double Game www.indialegallive.com CONSTITUTION PIL’S IPC WESTLAW MANUPATRA CRPC INDIAN KANOON BAIL CONTEMPT DEFAMATION CASE HISTORY PERJURY RECUSALS VISHAKA NIRBHAYA SHAH BANO CASE SECTION 66A KESAVANANDA BHARATI SECTION 377 M C MEHTA VS UNION OF INDIA STORIES THAT COUNTSTORIES THAT COUNT KK RJJ ONN MM UU InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT June12, 2017 ` 100 NI Patiala House Shift: Courting Controversy The Centre’s new restrictions on cattle slaughter is an incendiary mix of politics, religion, cultural sensibilities and federalism. Can it be challenged? Tamil Nadu: Enter the Lotus www.indialegallive.com CATTLEWARS TTV Dinakaran
  • 40. 40 June 19, 2017 NDIA’S erstwhile royal families have left us with memories of fan- tasy lifestyles, fabled riches, grandeur and romance, and, inevitably, family disputes over the opulent palaces and properties they owned. The Gaekwad royals battled each other over ancestral property worth `20,000 crore till the claimants hammered out a settlement in court, ending a 23-year-old family feud. Descendants of Maharana Pratap fought a protracted legal battle over a `450 crore legacy that includes Udaipur’s iconic Lake Palace hotel. The dispute (shades of Bahubali 2), involved two feuding brothers, one backed by the The Battle of Jaipur Theprolongedfeudoverthefive-starheritagehotelproperties oftheroyalshasbeensettledbytheSupremeCourt,butthe palaceintriguecontinues By Prakash Bhandari in Jaipur I Property/Property/ Royal Inheritance
  • 41. | INDIA LEGAL | June 19, 2017 41 mother; the two sides were entangled in 55 different cases. The legal war is still on. The Scindia royals battle also wit- nessed the son (Madhavrao) taking on his mother (Rajmata Vijaya Raje) in court. The legal battle was prolonged when Madhavrao’s son, Jyotiraditya, filed cases against his paternal aunts, Rajasthan chief minister Vasundhra Raje and her sister Yashodhara Raje, over the family inheritance. The Scindia property is worth `25,000 crore, and there are 50 cases in various courts. Then there is the battle of Jaipur. Perhaps no other legal slugfest exempli- fies the kind of palace intrigue, polygamy, succession drama and com- plex inheritance structure like that of the House of Jaipur. Among India’s near-mythical panoply of royal houses, Jaipur was the best known and certainly among the richest. While the legendary Maharani Gayatri Devi, widow of Maharaja Sawai Man Singh II, was alive, the inheritance issue and the intrigue, was kept in check. When she died, in 2009, the legal skeletons tum- bled out of the royal closets, bringing into the open the messy, three-decade- old inheritance battle. The legal contest involves the mag- nificent Rambagh Palace and the sprawling 18-acre Jaimahal Palace in Jaipur, and Sawaimadhopur Lodge in Ranthambore. The estimated value of Jaimahal alone is `1,000 crore. COMPLICATED TIES Gayatri Devi was Maharaja Sawai Man Singh’s third wife, and she had just one son, Jagat Singh, who spent most of his life in London. The inheritance issue is contested by two sides of the family— Prithviraj and Jai Singh (brothers born to the same mother and Jagat Singh’s stepbrothers), and Devraj Singh and Lalitya Kumari, Jagat Singh’s son and daughter from a Thai princess he met and married in London at a ceremony attended by the Queen and Lord Mountbatten. Devraj and Lalitya were BITTER SUNSET (Clockwise from far left) At the centre of the feud is the magnificent Rambagh Palace; Devraj Singh and Lalitya Kumari, Jagat Singh’s son and daughter from estranged wife, Priyanandana (far right); Prithviraj and Jai Singh, step-uncles of Devraj and Lalitaya taj.tajhotels.com Raj Kumar Singh
  • 42. Property/ Royal Inheritance 42 June 19, 2017 grandson and granddaughter of the late Rajmata, as Gayatri Devi was called. Jagat Singh died in 1997; he was one of the four sons of Sawai Man Singh. In fact, the original legal dispute pit- ted Jagat Singh, and later Gayatri Devi, against Bhawani (Bubbles) Singh, the son of Sawai Man Singh’s first wife, Marudhar Kunwar. Gayatri Devi’s death, 12 years’ later, triggered a legal showdown between Devraj and Lalitya and their step- uncles. The half-Thai members of the family have mostly lived in Bangkok, and still do after Jagat Singh’s fondness for drink and partying led to Priyanandna divorcing him. He moved back to London where he died. However, Devraj and Lalitya continued to visit Jaipur to see their grandmother, and usually stayed at the lovely Jaipur City Palace. On Jagat Singh’s death, they inherit- ed the Jai Mahal Palace under the laws of succession. But as the siblings were minors, Jagat Singh’s step-brother Prithviraj was appointed the palace caretaker. When the Jai Mahal Palace was converted into a luxury hotel, the succession certificate, according to Devraj, gave them the right to 99 per- cent equity and Prithviraj one per cent. That is when the palace intrigue started, with the young Thai-born family mem- bers claiming the uncle was manipulat- ing shareholding and the control of the royal properties. They said that Prithviraj was trying to prove that Jagat Singh had revoked his children’s succession rights through a will—a probate of which is pending in the civil court. LEGAL VICTORY The matter currently rests with the Company Law Board. Jagat Singh’s orig- inal will, in fact, had bequeathed his shares in the royal properties to his mother. In turn, Gayatri Devi willed her and her son’s properties in the name of her two grandchildren. The step-uncles disputed the first will written by Jagat Singh but after multiple hearings, the grandchildren won a tactical legal battle in the Supreme Court which upheld the Delhi High Court’s order in their favour, saying that they had been deprived of their rightful share in Rambagh Palace and Jaimahal Palace. These two proper- ties are owned by the Jaipur royals, but PRIZED LEGACY The sprawling 18-acre Jaimahal Palace in Jaipur WhenMaharaniGayatriDevidied, in2009,thelegalskeletons tumbledoutoftheroyalalmirahs, bringingintotheopen,themessy, three-decade-oldlegacywar taj.tajhotels.com
  • 43. | INDIA LEGAL | June 19, 2017 43 managed by Tata’s Indian Hotels Ltd, branded as the Taj Hotels Resorts and Palaces. The succession battle over the royal properties estimated to be worth $900 million (`6,000 crore) according to a British assessor, seemed to have been settled when the Supreme Court laid down that Jagat Singh only disinherited his estranged wife and not his children. However, various members of the Jaipur royal family still exerted control over the extensive royal estate which remained partially intact long after the merger of Indian princely states into the Indian Union in 1947. Prithviraj and Jai Singh had ensured that the children of Jagat Singh were not allowed to stake any claims to the properties of their father and grandmother, till the Supreme Court stepped in and ruled in favour of Devraj and Lalitya. DIVORCED WIFE When in Jaipur, Devraj, 34, lives in Lilypool, which used to be the residence of the late Gayatri Devi. Sawai Man Singh had given this French-style bun- galow to her on a 99-year lease and Devraj says he has documents to prove it. This beautiful bungalow is part of the Rambagh Palace Hotel. Devraj, having lived in London and Bangkok, has very little knowledge of the Indian legal sys- tem and succession documents, further hampered by the fact that he cannot speak or read Hindi. Often his sister, Lalitya Kumari, 37, who is married to a Thai businessman and lives in Bangkok, comes and stays with him. Their moti- vation and advice comes from their mother. Once she divorced Jagat Singh, he left her out of his will but his chil- dren retained their right to inheritance. She has been the invisible force behind their fight for their rights. The Supreme Court ruling came as a relief but it is unlikely to be a smooth transition. Prithviraj was not available for comment, but one of his lawyers said that the step-uncles would abide by the Supreme Court orders. Despite that reassurance, royalty generally plays by its own rules and traditions. Both the step-uncles are in their late seventies and Devraj squarely blames them, Prithviraj in particular, for refusing to transfer the shares. “My uncle Prithvi- raj has attempted various ways to disin- herit us. He had already illegally redu- ced our father's shareholdings from 99 percent of Jaimahal Palace to 7 percent. Even Dadisa (Gayatri Devi) was not aware of this. Prithviraj also diluted my father's shares in Rambagh from 27.06 percent to 4.74 percent. After I found out, I filed the case in the Company Law Board in 2006. We also suddenly discovered that we have been disinherited.” Palace intrigue has led to this situa- tion. Ironically, it was the late Maharaja Bhawani Singh, popularly known as Bubbles, who encouraged the siblings to fight for their rightful share in their father’s and grandmother’s properties. He was witness to the will that Gayatri Devi wrote in favour of her grandchil- dren which proved a turning point in the royal dispute. The legal focus, how- ever, is on the three properties managed by the Taj group. Devraj and Lalitya still have to obtain an order from the Company Law Board on the new share- holding structure in the two companies that run the Rambagh Palace Hotel, Hotel Jaimahal Palace and Sawaimadhopur Lodge. If the Board decides in their favour, the siblings can then inform the Taj Group of the new shareholding, originally held by their late father. In effect, Devraj and Lalitya will be the new owners of the five star properties. Considering there are other court cases involving various members of the royal family, the Battle of Jaipur still awaits a victor. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] PrithvirajandJai Singh(right) ensuredthatthe childrenofJagat Singhwerenot allowedtostake anyclaimstothe propertiesoftheir fatherand grandmother. HEIRS IN TROUBLE Maharani Gayatri Devi, whose grandchildren are fighting the legal battle Raj Kumar Singh
  • 44. much power as it can, and for that pur- pose, encroach upon areas of operation of other institutions by influencing them politically. A survey of the public institu- tions in India would be instructive to all those who care for a constitutional and democratic political order. In 2005, Devesh Kapur and Pratap Bhanu Mehta edited and published a few essays about public institutions under the title Public Institutions in India: Performance and Design. A decade has already passed since the publication of that volume and the events that have happened thereafter have greatly affected some of these UBLIC, constitutional, statu- tory or private institutions, having voluntary membership, play a great part in the func- tioning of a constitutional democracy. Institutions that are organs of the State are assigned specific func- tions by the constitution. They have to be independent and yet are subject to the limitations laid down by the consti- tution. Their internal strength is one of the guarantees of their independence. They must be strong enough to defend themselves from interference by other State institutions. There is an inherent tendency in the Executive to grab as Book Review/ Rethinking Public Institutions in India institutions. Both the original editors, joined by Milan Vaishnav, have now come up with a revised survey of public institutions. This volume contains some scholarly essays, giving an insight into the state of our public institutions and naturally, its effects on governance. CONSTITUTIONAL DUTY Basically, the writers of these essays have dealt with the structural aspect of the institutions under survey. Some essays also emphasise the procedure adopted by these institutions in their functioning. Facts leading to the growth and decline of these institutions have, naturally, been elucidated where neces- sary. There are occasions when proce- dures will have to be brushed aside and constitutional duty will have to be per- formed independent of it in order to do justice to the purpose of the provisions. We find such an instance in the presi- dential order dated January 1, 2017, when President Pranab Mukherjee commuted the death sentences of four Standing Up to Political Bosses P Doourpublicinstitutionshavethecourage tostanduptotheExecutive? By Justice Narendra Chapalgaonker CONSTITUTIONAL BENCHMARK The morale of public institutions, like Parliament, is an indicator of the democratic functioning of the country 44 June 19, 2017
  • 45. role in the appointment of functionaries or members of the managing commit- tees of some of these institutions. There is a consistent demand by the govern- ment that it should have a say in the appointment of judges. Examples are cited of similar institu- tions in other countries where the gov- ernment has a right to appoint judges to the highest court of that country. The right to appoint will not always be mate- rial. While making any appointment, if merit of the person to be appointed is the only criterion before the govern- ment, the problem does not arise. But what is important is what is the expecta- tion of the state government after such an appointment? Should it be expected that the appointee should toe its line or be allowed to exercise his function independently? An anecdote is quoted by Peter Irons in his book A People’s History of the Supreme Court. President Eisenhower of the United States was once asked if he had made any mistakes as President. “Yes, two”, he replied, “and they are both sitting on the Supreme Court.” The President was referring to Chief Justice Earl Warren and Justice William Bren- nan, Justices of the Supreme Court app- ointed by him but whose opinions were normally not to Eisenhower’s liking. of the country as a whole. The Central Bureau of Investigation has already been a subject of public criticism and is often dubbed as a tool in the hands of people in power. Its highest officials have come under a cloud. This, in contrast to contemporary happenings in the US, where the Department of Justice is able to appoint an independent counsel for an inquiry which might embarrass some persons in power, is sad. Political parties have no respect for institutions like the Comp- troller and Auditor General and the Central Vigilance Commission. They praise them and underline their useful- ness when these authorities for internal accountability exonerate them and criticise them when a finger is pointed at them. The government plays an important convicts without following the advice of the home ministry. Powers like pardon- ing are not strictly an Executive func- tion. The advice of the ministers will weigh, but there would be cases wherein the constitutional functionary should exercise his own discretion according to his conscience. Madhav Khosla and Anant Padma- nabhan have rightly highlighted the legal developments that took place in the seventies. By inventing the doctrine of the Basic Structure, the Supreme Court circumscribed the power of par- liament to amend the constitution. By a liberal reading of the Fundamental Rights in the light of the Preamble and the Directive Principles enshrined in the constitution, the Supreme Court gave a wider meaning to the Right to Life und- er Article 21. These are the two impor- tant contributions of the Supreme Court of which a proper note has been taken. While dealing with the civil services, KP Krishnan and TV Somnathan have rightly pointed out the most important cause of their poor performance. Accor- ding to them: “The biggest single weak- ness of the civil service today is its per- ceived inability to function with integri- ty and political neutrality. Political inter- ference has become very common over the last three or four decades.” PUBLIC INSTITUTIONS The morale of public institutions is an indicator of the democratic functioning Procedureswillbe brushedasideand constitutionalduty performed,like whenPresident PranabMukherjee commutedthe deathsentencesof fourconvicts withoutfollowing theadviceofthe homeministry. Rethinking Public Institutions in India Author: Devesh Kapur, Pratap Bhanu Mehta and Milan Vaishnav Published by: Oxford University Press Pages: 527 Price: `995 | INDIA LEGAL | June 19, 2017 45 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Devesh Kapur Pratap Bhanu Mehta Milan Vaishnav
  • 46. RIME Minister Narendra Modi is slated to visit Washington for his first meeting with President Donald Trump at the end of the month. But ahead of the meeting, the pitch has already been queered by Trump’s irresponsible accu- sations against India. Diplomacy/ World Relations 46 June 19, 2017 Will he halt the growing warmth between India and the US? With Europe now seriously wooing India and the US turning isolationist, the chances for a middling power like India to play a larger role on the world stage has brightened significantly. As major European allies try to grap- ple with the new reality of an America Asanewworldordershapesup,ModiwilltrytobetherightmanintherightplaceforEuropeand theUS.WillhisresponsivestancegiveIndiaachancetoplayalargerroleontheworldstage? By Seema Guha P Who Will Tango With India? Photos: UNI
  • 47. | INDIA LEGAL | June 19, 2017 47 no longer willing to carry the burden of a liberal, globalised world, they are look- ing towards Asian giants, China and India. Modi’s recent four-nation tour to Germany, Spain, Russia and France was a huge success. Much of this can be attributed to the Trump effect. CHEERING UP GERMANY Modi arrived in Germany soon after Trump rounded off his first overseas tour. The US president attended both the NATO and G-7 summits and left America’s traditional allies uneasy at the new turn of events. Trump lectured NATO members about not paying enough for Europe’s defence and gave no commitment that the US would come to its aid in case of aggression from a non-NATO power (such as Russia). Trump returned to Washington and tweeted against Germany, leaving Chancellor Angela Merkel and other European leaders both heavily nervous and upset. Modi waded in to cheer Merkel who was hugely disappointed by the new American president. He assured her of India’s abiding ties with Germany and WOOING LEADERS Prime Minister Modi with German Chancellor Angela Merkel in Berlin (facing page); French President Emmanuel Macron in Paris (left) and Russian President Vladimir Putin (below)
  • 48. went on to declare that “India and Germany were made for each other’’. A smiling Merkel heard him indulgently. But Trump had not finished with Europe. He went back to Washington and announced that he would pull out of the Paris Climate Change Agreement. This had been sealed with much fanfare in 2015, when Barack Obama and the Chinese came to an agreement and India decided to fall in line. Candidate Trump had been thundering against the Climate Agreement during his elec- tion campaign and his subsequent announcement was on expected lines. Yet it shook Europe to the core. And in his speech announcing America’s exit, Trump mixed fact with fiction. He accused India of signing the climate deal in the hope of cornering billions of dollars for new technology provided by the Obama administration. The fact is that the US and the rest of the industrialised world are major pol- luters and had to pay for their past mis- deeds in wrecking the environment for decades. India and China began their development much later. Today, China is the main polluter, followed by the US. India is not far behind. The emerging economies had during the several rounds of negotiations that led to the landmark 2015 climate deal insisted that the developed world pay for some of the clean, new technology that is being developed across the globe. Taking this out of context, Trump threw this charge against India. US TIRADE External Affairs Minister Sushma Swaraj took on Trump during her annu- al news conference on June 5. In reply to a question, she said: “We did not sign the Paris agreement under pressure from any country, or because we were greedy for funds from some country. We signed it because of our belief: a 5,000-year-old culture of preserving the environment.’’ Modi played his climate card well, assuring distraught European leaders that India is willing to go beyond what was promised in the Paris agreement. Standing shoulder-to-shoulder with new French president Emmanuel Macron, Modi declared his faith in the Paris accord. Macron will be visiting India by the end of the year and has endorsed the Modi-led alliance. NEW ALIGNMENTS India and EU, having struggled since 2007 for a free trade agreement, will now firm up their ties as a nervous EU looks for solid trade partners. After Modi’s visit, both are set to engage with each other even more deeply. With Russia too, Modi has repaired 48 June 19, 2017 CHANGING PERSPECTIVE (Top) Former US President Barack Obama (2nd R) welcomed by then French President Francois Hollande during the World Climate Change Conference 2015 near Paris; (above) US President Donald Trump (L), who has pulled out of the Paris pact, shakes hands with China’s President Xi Jinping in Florida Diplomacy/ World Relations
  • 49. ties which were going through a bad patch. India was concerned about Russia’s closeness with both China and Pakistan. With Vladimir Putin by his side at a news event in St Petersburg, Modi, without mentioning Pakistan, spoke of the export of terror by certain countries. For the moment, India is sit- ting pretty. So what’s on the cards are the clearing of doubts with old friend Russia and a bigger engagement with Europe now. SAVING THE PACT Chinese Prime Minister Li Keqiang was in Berlin a day after Modi. And instead of talk on South China and trade, the focus was on how to make sure that the Paris Agreement does not unravel. While cash-rich China with its increas- ing clout—economic, military and diplo- matic—will be the principle beneficiary of a US retreat from global leadership, for India too, the options have opened out considerably. India may not be in a position to dole out cheques, but it has several advantages for European leaders. On top of the list is India’s democratic credentials. It also has a youthful popu- lation and a huge market which every nation is eyeing. But what about ties with America? Modi has aggressively pursued a pro- US tilt in foreign policy. But the isola- tionist trend triggered by Trump has made India a tad cautious. That possibly is a good thing as it is best to hedge one’s bet and not put all the eggs in an unpredictable American basket. Sushma Swaraj has said that Indo-US ties are on course and she does not foresee any major change in relations. She is confident that these ties will continue to look up as it is a “relationship of mutual benefit’’. SOLID TIES Former foreign secretary Lalit Man- singh, who was also ambassador to the US, was as optimistic as Minister Sushma Swaraj. “India-US relations are set and have a momentum of their own. They can go on without presidential intervention,’’ he said. The US remains India’s largest trading partner. There may be fluctuations in the number of H1B visas and the pharmaceutical sector may face problems in future, but so far, this has not affected ties. Mansingh believes there may be an issue on renew- able energy. But what can override some of the schisms, he believes, is diplomacy. After taking a rampant anti-China stand dur- ing the election campaign and even say- ing that China was a “currency manipu- lator’’ and “climate change is Chinese propaganda’’, Trump did an about-turn after President Xi Jinping’s visit. The personal chemistry was so good that he had his grandchildren (Ivanka Trump and Jared Kushner’s children) sing Chinese songs for the visiting digni- taries. The anti-China rhetoric flew out of the window. Instead, Trump praised China’s efforts at working with the US to contain North Korea. India hopes that Trump will use India to balance out China in the Asia- Pacific region. “But chances now are that as the US-China equation will remain strong, he will possibly cut a deal with the Chinese. Already, Japan and South Korea, who are under the US defence umbrella are concerned,’’ said Mansingh. So where does this leave India? Much will depend on the Modi-Trump meeting and how it pans out. “Knowing Modi, he will go well-prepared to meet Trump. He will also size him up and know exactly what works and what does not,’’ said Mansingh. “I suspect they will get on well, for both are unconventional politicians. Both are right-wing leaders and totally pro-business,’’ he added. “Modi’s diplomacy will be responsive and will be able to adjust to today’s changing environment.’’ Modi has already kept a fallback option in case things take a sour turn with the US. In Europe, both Merkel and Macron are willing to play ball with India. | INDIA LEGAL | June 19, 2017 49 “KnowingModi,hewillgo well-preparedtomeet Trump.Hewillalsosize himupandknowexactly whatworksandwhatdoes not.Isuspecttheywillget onwell,forbothare unconventionalpoliticians —right-wingleadersand pro-business.” —LalitMansingh, formerforeignsecretary “WedidnotsigntheParis agreementunderpressure fromanycountry,or becauseweweregreedy forfundsfromsome country.Wesignedit becauseofourbelief: a5,000-year-oldculture ofpreserving theenvironment.” —SushmaSwaraj, ExternalAffairsMinister Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected]
  • 50. E VER since the late lamented Zulfikar Ali Bhutto pledged that he would defeat India by inflict- ing a thousand cuts, Pakistan and India have been in a state of undeclared war. It takes many forms and proxies but it has escalated in recent weeks. Unhappy with the current state of play, Prime Minister Nawaz Sharif summoned a meeting of his top army officers for a briefing last week. Excerpts. NawazSharif: I am not happy with the results of our last few encounters with India. It has bordered on being embar- rassing. The public is angry and asking questions about leadership and team spirit. What seems to be the problem? GeneralUstaad: Sir, it looks like the enemy had far superior firepower. Our intelligence on their preparation, offen- sive capability and frontline forces was not adequate and some of our key strategies did not work out. Sharif:This is not on. I am coming under fire for failing in my duties. The buck stops with me, as does the buk buk. Why is this happening under my watch? I was told we were going to win this battle. What has gone wrong? GeneralBahadur: Mr Prime Minister, it is all to do with their new leader. He sticks out his chest, gives us the finger and is very aggressive. They have gone on the offensive. Under him, they plan surgical strikes that are demoralising our forces. He believes in taking no prisoners. Sharif: I was given a briefing that showed we were the superior side. We had plenty of local support, strong throwing arms that were hitting the target and putting the Indians under pressure. Yet, when it comes to the crunch, we fail to make use of the opportunity… GeneralMardaana: Sir, it looks like we were vulnerable in every area. They marshaled their troops better, emplo- yed better tactics, showed greater moti- vation and hit us hard before we could prepare our defences. Sharif: Looking at the situation from here, it seems that we just could not affect any breakthroughs. They had every approach covered. How did we fail to read the situation on the ground? GeneralShahid: Sir, there is a lot of media pressure regarding ourselves and the Indians. A lot of hype and hysteria is created. People expect us to perform miracles. They keep bringing up the boast by General Musharaf that one Pakistani is equal to 11 Indians. When it came to the actual engagement, it turned out to be the other way around. Sharif: I was clearly misinformed. The intelligence reports I received said our forces were all fired up and ready to exploit Indian weaknesses. I was told we had a SWOT analysis, a SNOT analysis, an On the Spot analysis, so how did we allow this opportunity to slip through our fingers? GeneralHoshiyaar: Sir, despite extensive training and enough acclimatisation in alien territory, I must confess we did allow many opportunities to slip through the fingers. Our initial attack was hostile enough and had the enemy on the back foot, but our boys failed to maintain the momentum. Sharif: We have given you all the sup- port required, financial, equipment, all the ammunition you need, yet we fall short of the final objective. What do the people on the ground have to say? GeneralBakwas: Sir, when our men emerged from the tunnels, we discov- ered that terrain was like a minefield and it was extremely difficult to make progress and neutralize the enemy. They fought like tigers even though their national animal is supposed to be the cow. It was a Donald Trump moment for our jihad. Sharif: What has Donald Trump got to do with the failure of our offensive? GeneralBakwas: For our boys, it was meant to be a show of courage. Instead, by the end of the encounter, it was like a show of covfefe. Nobody can under- stand it. CivilianCouncilMember: The occupation of Kashmir is our junoon and our taqdir. Death by a Thousand Cuts is what we are taught right from school. I am assuming as a civilian I was not informed of these encounters and the forces we employed across the LoC. Sharif: Who’s talking about Kashmir? This is about Birmingham and the cricket team’s meek surrender to India. You know how much we hate losing to India; our GDP goes down, the mar- kets crash, there is mass depression, the media looks for scapegoats and that damn Imran Khan gets prime time coverage. I called this meeting because in any crisis situation, you know we always call in the army. Defeat by a Thousand Cuts Satire/Dilip Bobb 50 June 19, 2017 Anthony Lawrence Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected]
  • 52. . RNI No. UPENG/2007/25763 Postal Regd. No. UP/GBD-197/2014-16