india legal 15 october 2016

NDIA EGAL L October 15, 2016 `100

www.indialegalonline.com

IPinning Down Terror

52 60Blocking Gender Ads By Nayantara Roy

Marathas Silent Ire By Neeta Kolhatkar

Darryl D’Monte India’s Climate Bargaining Chip 76

Shobha John Death Throes 64

R Ramasubramanian Madras HC Fund Crunch 38

Ajith Pillai Books Brouhaha 32

Indus River: Can the tap be turned off? By Inderjit Badhwar

Plug security loopholes By Seema Guha

Will Uri affect pay parity demands of Services? By Bikram Vohra

Lt Gen Vijay Oberoi on the low remuneration of Forces By Usha Rani Das

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THE INDUS RIVERTHREAT IS NOT ABOGEYMAN

INDERJIT BADHWAR

In fact, Sinha observes that Pakistan is tooimportant a country for the US to allow it to gounder, which would happen if its access to theIndus system was to be disrupted, turning itpotentially into a desert. He adds: “China is alsonot likely to allow matters to precipitate beyond acertain point.”

So what do the geopolitical thoughters inPakistan—not the rabid war-mongers but themore analytical minds—have to say about this?One paper I dug out—prepared several years agoby Khalid Chandio, then a research officer at theprestigious Islamabad Policy Research Institute(IPRI)—is worth a read. Chandio is a journalistwith a Masters in Defense and Strategic Studiesand people read what he writes. And IPRI is awell-respected institution which interacts freely innational and international forums. It is a Carne-gie-type think tank which does not necessarily takerabid ultra-nationalist, saber-rattling positions.

“Many of the wars of the 20th century wereabout oil, but wars of the 21st century will be overwater,” said Dr Ismail Serageldin, former vice-president of the World Bank. Chandio noted thatwater is surpassing oil as the world’s scarcest criti-cal resource as it has no substitute. “There’s anincreasing feeling in the world that everyone has abasic right to a minimum 13 gallons of water a dayfor basic human health. Today, the world standsdivided between water haves and have-nots andPakistan is facing critical water issues. Water man-agement and distribution has always been animportant but cumbersome process in Pakistanbeing a semi-arid country and its economy basedmainly on agriculture and related industry.”

He notes that the “positive thing is that

LETTER FROM THE EDITOR

ACEBOOK posts and strategic punditshave been obsessed with how best to pun-ish Pakistan for its support to the terror-ists’ attack in India, the latest such horrificincident being the murder on Indian sol-

diers in Uri. The most popular theme of the day isthe exhortation from journalists and politicians forpunishing Pakistan by scrapping the Indus WaterTreaty and forever parching the soil of Pakistan.

Is this possible? Can we really turn off this tap?A post by Shakti Sinha on the ABP website appearsto argue very cogently for this viewpoint. He notesthat geopolitical thinkers like Brahma Chellaneyhave argued that India should unilaterally with-draw from the Indus Water Treaty of 1960 betweenPakistan President Gen Ayub Khan and PrimeMinister Jawaharlal Nehru. It has been in opera-tion notwithstanding the subsequent wars bet-ween India and Pakistan. There is no provision inthat compact either for its dissolution or for unilat-eral withdrawal.

Sinha observes that Chellaney argues in favorof using Article 62 of the Vienna Convention of theLaw of Treaties providing for dissolution based onfundamental changes of circumstances. Respond-ing to this post, a top former civil servant-turned-lawyer raises two important questions:1. Do you really think it would be a good idea torepudiate a treaty, fair or unfair, that we signedand have adhered to for all these decades? Wou-ldn’t the cost to our credibility outweigh any gains?Wouldn’t it play into Pakistan’s hands politically,much as it might harm them economically?2. The second point is, might not such a step makeIndia vulnerable to bullying by China over the flowof rivers to India?

F

3INDIA LEGAL October 15, 2016

of the waters of the three western rivers, i.e., Indus,Jhelum, and Chenab, while the three easternrivers, i.e., Beas, Sutluj, and Ravi went in totaljurisdiction of India. India was not allowed tobuild storages on the western rivers except to avery limited extent and also restrictions wereimposed on the extension of irrigation develop-ment in India. The permanent Indus Commissionwas appointed for both states. International finan-cial assistance was given to Pakistan for the devel-opment of irrigation works utilizing the waters ofwestern rivers.� There is no denying the fact that the IWT sur-vived in the midst of wars and border clashesbetween the two states but the Indian projects onPakistani rivers created stress and strain as Indiacould either reduce water flows to Pakistan orcause floods by releasing the stored-waters. Thereare numerous water disputes between the two, e.g.,Wular Barrage, Kishanganga Project, BagliharDam, etc. Salal Dam was started by India withoutinforming Pakistan, in violation of the IWT.Though an agreement was reached between thetwo countries, yet there is no guarantee that Indiawould not do the same in future. Now India hasgot the leverage to hold water for 25-26 days whichcan cause acute shortage of water for winter cropsin Pakistan. This, besides causing electricity short-age, can greatly affect wheat crop in the Punjab.According to Dr John Briscoe, Professor of the

Pakistan has the largest contiguous supply-basedcanal irrigation system in the world. In Pakistan,the muddy plains of the Indus basin cover approx-imately 25 percent of the land area. Whereas inIndia, the basin includes only 9.8 percent of thetotal geographical area of the country. On the negative side, the aqua environment of Pakistanhas been shrinking since the last two decades asthe World Bank had put the country in the cate-gory of ‘water-stressed’ in 2000. The availability of water in Pakistan has been declining over thepast few decades from 5,000 cubic meters percapita 60 years ago to 1,200 cubic meters per capi-ta in 2010.”

Pakistan’s water problem is not new.Following Independence, a political bound-ary between Pakistan and India was drawn

right across the Indus Basin, making the countrythe lower riparian to India. The headwaters wentto the Indian side, leaving Pakistan vulnerable asIndia got the physical capacity to cut-off vital irri-gation water.

Here are excerpts from Chandio’s historicalanalysis of the situation:� Negotiations commenced between Pakistan andIndia in 1951 under the World Bank and resul-tantly the famous Indus Waters Treaty (IWT) wassigned on September 19, 1960. It was the partitionof waters like land in 1947. Pakistan got the rights

HEATED RHETORIC

(Above) Protests inPatna against the

Uri attack


4 October 15, 2016

UNI

capability over river Chenab by 6-7 times. Aftercompletion of Baglihar Dam, India will be able tostop the flow of water in the river for 30-40 days ascompared to previous capability of only 8-10 days.Kishanganga HEP will also enhance Indian stor-age capability over river Jhelum with a stoppagecapability of 14 days. Also, Wullar Barrage will fur-ther enhance Indian storage capability in riverJhelum for an additional 30 days. So, dependingupon the degree of water regulation capability,India can create three types of effects:

�Drying up of rivers-related canal�Flooding of rivers�Fluctuate discharge of rivers

� Since water security has become a principal con-cern for sustainable development, so availability offreshwater is one of the greatest challenges thatthe world is going to face in the near future. Aswater shortages are growing, the result could be aseries of disasters and confrontations leading toregional crises. Nowhere else on earth are theprospects of water wars more serious than inSouth Asia, where two of the world’s greatest

Environmental Engineering and EnvironmentalHealth at Harvard University and former SeniorWater Advisor to the World Bank on the Bagliharcase, “in case of Baglihar, Pakistan’s vulnerabilitywas driven home when India chose to fill Bagliharexactly at the time when it would impose maxi-mum harm on farmers in downstream Pakistan.Following Baglihar is a veritable caravan of Indianprojects, i.e., Kishanganga, Sawalkot, Pakul-dul, Bursar, Dal Huste, Gyspa… The cumulativelive storage will be large, giving India an unques-tioned capacity to have major impact on the timingof flows.”� Water flows in river Chenab declined to about6,000 cusecs from a 10-year average of 10,000cusecs, mainly because of construction of over adozen Hydro-electric Projects (HEPs) upstream byIndia. To fill Baglihar Dam, India had consistentlyobstructed River Chenab’s flow. Resultantly, Pak-istan received lesser water when it should havebeen receiving a minimum of 55,000 cusecs perday. In order to achieve the required growth tar-gets in agriculture, Pakistan needs an estimated277 MAF in 2025. Otherwise, the shortage of sur-face water will result in drought and more depend-ency on ground water for irrigation; hence thewater table will go down causing water constraintsto the population. Indian water regulation capabi-lity has increased as with the completion of SalalDam, India has enhanced its water regulation

WATER WARS(center) The IndusRiver is the lifeline ofPakistan

(Left) BSF personnelpatrolling theChenab in Jammu

Experts say that Indian projects on therivers flowing into Pakistan createdstress as India could either reducewater flows there or cause floods.


UNI

Pakistan/Indus Water Commission Pakistan. Butat the non-governmental level, intellectuals/acade-mia in India have started asking for re-visiting/re-thinking the IWT and probably they are making acase for the future. Brahma Chellaney, a Professorof Strategic Studies at the New Delhi-based Centrefor Policy Research, said that “Pakistan’s reopeningof the water-sharing agreement could backfire, asit might prompt India to rethink a treaty that wasextremely generous to Pakistan. There was notreaty in the world which had been so generous onthe part of the upper riparian to the lower riparianstate. India was starving its own northern regionsand reserving four-fifths of the water for Pakistan.If Pakistan played this dangerous game, theywould make India review its generosity.”

Chandio refers to a report published morethan five years ago by India’s IDSA(Institute for Defence Studies and

Analyses), Water Security for India—The ExternalDynamics, in which the institute gives reasons andplans for re-visiting the IWT. According to thereport: “…with Pakistan, given some stringent pro-visions in the IWT that thwart India’s plans ofdeveloping projects on the western rivers, a ‘modi-fication’ of the provisions of the treaty should be

river systems crisscross the international bound-aries of the world’s largest and most densely-pop-ulated countries being:

� Indus River System (IRS)�Ganges-Brahmaputra-Meghna (GBM)

� Water issues are likely to continue as a majorsource of conflict between India and Pakistan inthe coming decades as forecasted by many ana-lysts. As populations rise, levels of economic devel-opment increase and the adverse effects of climatechange become more extreme, the South Asianregion will struggle to meet its growing demandwhile managing dwindling water supplies andtrans-boundary rivers, especially those in the IRSand GBM basins. These disputes could prove to bedangerous for world security since war over waterbetween two nuclear-armed states, i.e., Pakistanand India, would be dangerous. The possibility of such a war cannot be ruled out since water posesa survival issue; there is no substitute of this commodity.� Indians consider IWT generous to Pakistan andPakistan thinks it discriminatory right from itsinception. At official levels, there is no suchdemand by the Govt. of India/Indus WaterCommission India and so is the case with Pakistanas there is no such demand from the Govt. of

The Indus WaterTreaty of 1960

between PakistanPresident Gen Ayub

Khan (left) and PrimeMinister Jawaharlal

Nehru has so farwithstood tension

and wars betweenthe two nations.

6 October 15, 2016


a coercive tool and a bargaining instrument in thelarger politico-strategic objectives of India.”� “There is a fifth constituency that argues thatany attempt to review the treaty, can be done onlyafter India exploits the potential already permissi-ble under the treaty. Only a crying child, it is arg-ued, gets the mother’s milk. This constituencyargues that first India should fully exploit theexisting potential and then cry for more. Anyattempt otherwise to review the treaty may not beseen as logical. The IWT is a product of its timeand could be fruitfully modified and renegotiatedto bring it more in line with contemporary inter-national watercourse law, the Helsinki rules, andemerging concerns with water quality, environ-mental sustainability, climate change, and princi-ples of equitable sharing.”

Chandio observes that Pakistan’s serious pro-jected shortages, India’s trend of damming watersand global warming’s expected depletion of waterin the IRS “are a source of increasing tensionsbetween Pakistan and India. Based on supply

called for. Whether it is done through re-negotia-tions or through establishing an Indus-II Treaty,modifications of the provisions are crucial in caseof the western rivers. Under the draft provisions ofthe International Law Commission ‘Responsibilityof States for Internationally Wrongful Acts, 2001’,India can consider the abrogation of the treaty…Pakistan aids and abets terrorist actions from itssoil. India should quantify the damage it has sus-tained over the decades bec-ause of Pakistani sup-port to terrorism and seek as a first step suitablecompensation. If Pakistan does not comply, Indiacan possibly threaten to walk out of various bilat-eral agreements including the IWT.” Pakistan isusing water propaganda to get international atten-tion on Kashmir so India should “talk” to Pakistanbut not “negotiate”. The talks should be about“water needs” and not “water rights”.

According to the same IDSA report, quoted byChandio, there are five constituencies that ask forrevision or a re-think:� “The first constituency seeks to evolve an Indus-II under the provisions of Article VII and ArticleXII of the IWT for an integrated or joint develop-ment of the Indus water basin. Indus-II should befed into the current peace process as a means bothfor defusing current political strains over Indus-Iand managing adverse impact of climate change.”� “The second constituency while understandingthe merits of a new hydrologic relationship on theIndus does not see any viability of Indus-II andcontends that a totally new treaty has to be negoti-ated. The IWT was a partitioning treaty, like thepartitioning of the land. How can cooperation bebuilt on that basis?”� “The third constituency is the domestic pressuregroup in [Indian occupied] Jammu & Kashmirwhich feels that the IWT has restricted the state’soverall development by not allowing it the usage of“its” rivers, i.e., Jhelum, Chenab and Indus. It hasbeen calling for a complete review of the treaty.The [Indian occupied] Jammu & Kashmir govern-ment has been contending that in spite of havingan untapped hydro-electric potential of 15,000MW, the state continues to suffer from acutepower shortage and related agro-economic under-development.”� “The fourth constituency springs into actionwhen the political climate between India and Pak-istan becomes acrimonious. While war over wateris not an option, this group suggests strong-armtactics in dealing with Pakistan and using water as

Brahma Chellaney, professor,Centre for Policy Research

He says Pakistan’sreopening of the

water agreement couldbackfire, as it might

prompt India to rethink atreaty that was

extremely generous to Pakistan.

Khalid Chandio, formerresearch scholar at IPRIHe noted that the

possibility of a war overwater between India and

Pakistan cannot beruled out since waterposes a survival issueand that there is no substitute of this.



text of the IWT in a comprehensive way. Inter-national lobbying should be intensified on thepoint, i.e., water being the ‘lifeline’ issue forPakistan and this could trigger war.”

He adds: “Pakistan should be calling for asophisticated forecasting system, accurately esti-mating how much water flows into the IRS, asalmost 90% of the water in the Upper Indus RiverBasin comes from remote glaciers of Himalaya andKarakorum mountain ranges, which borderPakistan, China and India. This region is soremote that the authorities in Pakistan do notknow the exact weather conditions there. This system will also help in alleviating droughts in the country. The water forecasting system couldultimately help Pakistan in optimizing water allo-cation at the national level by working out howmuch water is used for irrigation, industry, anddomestic purposes.

“Internally, water management in Pakistan hasbeen poor. So, keeping in view the dwindling waterresources, water must be made part of new secu-rity agenda.”

Clearly, the Indus river threat by India—whether kite-flying or not—is not a bogeyman forPakistan. It is, as one of their top analysts argues inhis paper, a matter of grave security concern forthat country.

and demand projections, India faces its own waterscarcity, which would provide India an excuse tostore or divert river water that would otherwisereach Pakistan. Water shortages would pressurethe Pakistani government to increase its share ofwater drawn from the Indus system under thetreaty as Pakistan is heavily reliant on the Indusand has few alternative water supply sourcesunlike India. In this environment, renegotiation ofthe IWT may become an important diplomaticissue between India and Pakistan. With India,water issue will be far more political and strategicthan just water. India has also started propagat-ing that Tibet’s water is for humanity, not forChina alone. But they (Indians) forget that theIndus-Ganges basins are also for humanity, not forIndia alone.”

Chandio—from a purely Pakistani strategicperspective which makes for interesting readingand certainly food for thought for India’s owndefense and national security planners—suggests away forward for Pakistan to get out of what couldbe a mess. He recommends that as far as the “exist-ing treaty is concerned and keeping pros and consin mind, there is no need to revisit/review/rethinkthe IWT. Pakistan would not be in a better positionto have any revision in its favour. Instead, Pakistanshould continue lobbying that India has been vio-lating the IWT and India should be compelled toabide by the IWT in its true letter and spirit. Also,Pakistan should engage with India within the con- [email protected]

DISHONORINGAGREEMENTS?

(L-R) KishangangaProject and Salal

Dams were startedby India without

informing Pakistan,and in violation of

the Indus Treaty

8 October 15, 2016

OCTOBER 15, 2016

The Indus SutraIndia’s threat to use the river is not just a mere bogeyman for Pakistan but amatter of grave security concern. INDERJIT BADHWAR

3LEAD

Arms and the MoniesA plaintive plea for the powers-that-be to bring about pay parity between theServices and their civilian counterparts. BIKRAM VOHRA

20

VOLUME. X ISSUE. 3

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Editor Inderjit Badhwar

Managing EditorRamesh Menon

Deputy Managing EditorShobha John

Executive EditorAjith Pillai

Bureau ChiefsNeeta Kolhatkar, Mumbai

BN Tamta, DehradunPrincipal Correspondent

Harendra Chowdhary, Mathura Reporters

Alok Singh, AllahabadGaurav Sharma, Varanasi

Associate EditorsMeha Mathur, Sucheta Dasgupta

Deputy EditorPrabir BiswasStaff Writers

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Senior Sub-EditorShailaja Paramathma

Art DirectorAnthony LawrenceDeputy Art Editor

Amitava SenSenior VisualizerRajender Kumar

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PhotographersAnil Shakya, Bhavana Gaur

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Production Pawan Kumar

Senior Content Writer (Web)Punit Mishra

Technical Executive (Social Media)Sonu Kumar SharmaTechnical Executive

Anubhav Tyagi

10 October 15, 2016

Border BrouhahaDespite strident calls in India for military action against Pakistan, Prime MinisterNarendra Modi has realized that the situation requires deft handling and tightsecurity. SEEMA GUHA

14

A Deliberate Downgrade!With successive Pay Commissions, the gap between the remuneration scales ofmen in the Services and government employees has only widened, says Lt GenVijay Oberoi. USHA RANI DAS

24

REGU

LARS

In India, death is defined by two Acts—one which deals with circulatorydeath and the other with brain stem death. But experts are now pitching for a common law. SHOBHA JOHN

Death Throes 64

Follow us on Facebook.com/indialegalmediaand Twitter.com/indialegalmedia

32While dismissing a plea by international publishers, a judgmentholds that photocopying portions of text books is legitimate if carried out for academic purposes. AJITH PILLAI

On the Books

70Back in the fifties, the Supreme Court ruled that a ban on cattle slaugh-ter would seriously affect some occupations. But today, Dalits are beingtargeted by right-wingers to “protect” the cow. KALYANI SHANKAR

Holy Cow, Unholy Politics

Cover Design: ANTHONY LAWRENCECover Picture: INDIAN ARMY

COURTS

MEDICINE

SOCIETY

Google, Yahoo and Microsoft have been ordered to block wordsrelated to pre-natal sex determination advertisements so as tocomply with the PCPNDT Act. NAYANTARA ROY

52For the Girl ChildLEGAL EYE

This is a question exercising many Sikhs as an apex court judgmentseems to favor Akali Dals who want to debar Sehajdharis or unbap-tized Sikhs from voting in the SGPC polls. VIPIN PUBBY

26Who Is a True Sikh?


Progressive Judgment The court hasremoved needless red-tapism for prisonerswanting to abort theirfetus and facilitatedfaster examination forthem in hospitals.NAYANTARA ROY

60The gang rape and murder of a Maratha girl has led to protests acrossMaharashtra and a demand for reservations by this community.NEETA KOLHATKAR

The Maratha UprisingSTATES

Radiologists are up in arms against the PCPNDT Act which criminal-izes misuse of ultrasound machines for sex determination tests. Theyare seeking amendments to soften the law. DINESH C SHARMA

Sound the Alarm! 57

46

38In a sign of growing tension, the Tamil Nadu government has notgiven enough funds for the judiciary, forcing the Madras Court topass an anguished order in this regard. R RAMASUBRAMANIAN

What is the Fund-a?

42The Gujarat government’s move to provide 10 percent reservationto the economically backward classes has come unstuck with theHigh Court ruling it as unconstitutional. RK MISRA

No Quota for Poor

SUPREME COURT

India has belatedly agreed to ratify the December 2015 climate pact. Ithad been using it as a lever to join the Nuclear Suppliers Group. DARRYL D’MONTE

Our Bargaining ChipENVIRONMENT

Quote-Unquote ......................................................... 12Ringside .................................................................... 13National Briefs ........................................................... 29Supreme Court.......................................................... 30Courts........................................................................ 50International................................................................68Wordlywise ................................................................ 75Figure it out ................................................................81People ........................................................................82

76

“When he was 10, he wantedto join the army. One of his

videos shows he loved cricket. He would have loved

to play for India, notPakistan.”

—Muzaffar Wani, father ofBurhan Wani, on his son’s

dreams as a child, in The Times of India

“Societies are not weakened just by terrorismas much as they are byoverreactions. Under somecircumstances, restraintcan be a form of deter-rence, since the other sidedoes not get the politicalleverage it hoped for.”

—Political commentator PratapBhanu Mehta, in

The Indian Express

12 October 15, 2016

QUOTE-UNQUOTE

“He has a long record of engaging inracist behavior…. This is a man who has

called women pigs, slobs and dogs.”—Democrat candidate Hillary Clinton, attacking

her Republican opponent Donald Trump duringthe Presidential debate in the run-up to the

US elections

“I think the time has come to tell Indians aboutthe intellectual level and background of mostIndian Supreme Court judges…. I myself was aSupreme Court Judge for about five and a halfyears, and I was constantly interacting with mycolleagues…. The level of their conversation was

usually about cricket or the weather, never onany intellectual subject.”

—Former SC judge Markandeya Katju, in a blog

“I am not in a habit ofditching friends. He(Amar Singh) stood byme in my worst times andI cannot dump him now.”

—SP leader Mulayam SinghYadav, on the in-fighting in SP,

in Mail Today

“Truth and openness,no matter how uncomfortable, arebetter than gossip.”—Former SC judge JusticeRuma Pal, supporting JusticeChelameswar’s stand onopenness in Collegium, inThe Times of India

“They (competitors) want to ruin my reputation by doing ulterior things, so that the

perception of the public is that Leander is a bad man. It takes a whole lifetime to build a

reputation and it takes one second to ruin it.”—Tennis player Leander Paes, in Firstpost

“People are getting smarter nowadays; they are lettinglawyers, instead of their conscience, be their guide.”

� Will Rogers, American actor (1879-1935)

VERDICT


14 October 15, 2016

LEAD/ Diplomacy/ Indo-Pak Ties

THE India-Pakistan script isrunning true to form. Thecycle is the same, whether itis Atal Bihari Vajpayee, Man-mohan Singh or NarendraModi. There are efforts at pe-ace talks, enthusiastic build-

up and cautious hope. Even if a breakthr-ough was not possible, it was hoped that onecould live live-by-side as civilized neighbors.However, a terror strike or an incursionchanges the narrative and hardliners on bothsides of the border have a field day as theytrade volleys of accusations and get their twominutes of fame.

Vajpayee’s regime was marked by the

Lahore bus ride and Kargil as well as the2001 parliament attack. In 2008, Pakistan’spresident Asif Zardari was keen on peaceand sent his foreign minister, Shah Meh-mood Qureshi, to India. But the Mumbaiterror attack took place when the ministerwas here. The generals ordered him to cancelthe rest of his visit and peace went for a toss.

Similarly, Modi’s Christmas overturewhen he stopped at Lahore to meet his coun-terpart, Nawaz Sharif, came to naught afterthe Pathankot attack. The recent Uri attackhas dealt a death blow to hopes of rap-prochement between the two nuclear-armedneighbors. Unless there is a drastic change inthe situation, Modi will not travel to

Despite stridentcalls for action

against our belligerent

neighbor, Modihas realized that

this is easier saidthan done. Deft

handling andtightening security

are the need of the hour

By Seema Guha

Handling a Hot PotatoUNI


Islamabad for the SAARC summit in Nov-ember and relations will be in a deep freezeuntil the next cycle begins.

WAR CRYUri is not the first nor will it be the last terrorstrike. The public mood has changed drasti-cally since the 2008 Mumbai terror attack aspeople have got more and more impatientwith Pakistan. Anger in the army is also saidto be brimming over, with soldiers wantingto avenge the death of their colleagues in Uri.Also, the 24x7 TV coverage of the aftermathof the attack, interviews with families of thesoldiers killed and their funerals have mademost Indians angry. “Pakistan has to betaught a lesson’’, is the general refrain. BJP’sSeshadri Chari declared that Pakistan wouldnot survive to celebrate August 14, 2017, itsnext Independence Day. This kind of rheto-ric builds up the hysteria for revenge attacks.

Moreover, with the BJP and the largerSangh Parivar’s belief in a strong state, thecry for retaliation is gathering fever-pitch.Modi, who as chief minister of Gujarat had

poured scorn on Prime Minister ManmohanSingh for his weak-kneed response to Pak-istan, is now caught in his own rhetoric. Itwasn’t just Modi, but many BJP leaders whohad launched vitriolic attacks on the UPA fornot giving Pakistan a fitting reply. But now,the pressure on the government from boththe party and the Parivar is intense. Being inthe hot seat now, Modi knows the responsi-bility that comes with exercising power. Des-pite the hysteria, India’s reaction so far hasnot been about hot pursuit, though this wasthe stand long-favored by the party.

Thankfully, a week after the Uri attack,war clouds have lifted. A full-fledged warwith Pakistan is out of question. Instead,India has begun a diplomatic offensive at theUN and will continue talking about Pakistanas the fountainhead of terror, a phrase popu-larized by former foreign minister JaswantSingh after the parliament attack.

Countries will all condemn terror but nota single nation will place sanctions on Pak-istan or isolate it diplomatically. India knowsthat very well but there is nothing wrong

“We expose ourvulnerability everytime. This is theprice we pay forour mistakes. It istime we made our defensesimpregnable. Therest of the worldcannot save usfrom such attacks,we have to do itourselves.”Shyam Saran, formerforeign secretary

TROUBLESOME NEIGHBOR(Facing page) The wife ofa slain Indian soldier in theUri attack breaks down onseeing his body in a village in Jammu

(Left) The Mumbai terror attack became awatershed moment inIndo-Pak relations

16 October 15, 2016

in playing to a gullible domestic audience.Despite tensions between the US and Pakis-tan, Washington cannot operate in Afghan-istan without Islamabad’s help. Pakistan isalso central to talks between the Taliban andAshraf Ghani’s government in Kabul. ThePakistan military’s close ties with the AfghanTaliban give it leverage with both theAmericans and the Afghan government.

DEAL WITH PAKISTANThe US and Pakistan army completed ninedays of joint exercises on September 15.Both have been working together since theAfghan resistance against Russian troops.But for the first time, Pakistan and Russiaare holding military exercises starting Sep-tember 24. US aid to Pakistan may have beenslashed and a bill designated to dub it a ter-ror state is before the US Congress, but it isunlikely that this will ever be passed. Everycountry will have to deal with Pakistan itsown way.

Much of India’s diplomatic initiative willmean little on the ground. Talks of retalia-tory strikes deep inside Pakistan territory are

fraught with danger. A superpower like theUS, which is militarily far superior to anyother force, can fly into Abbottabad and takeOsama bin Laden out. India is not in thesame position to penetrate deep into Pak-istani territory and destroy militant camps,despite threats to that effect. At the most,camps near LoC can be targeted, but Pak-istan also anticipates this and is prepared torespond effectively. But before retired gener-als, officials and Sangh Parivar loyalists keepharping on retaliatory strikes, India has tofix its own glaring security lapses.

INTERNAL SECURITYIndia needs to make security in its armycamps and other defense establishmentsfool-proof. India is no stranger to terrorstrikes. Whether in Kashmir, the North-East, or more recently in the war againstMaoists, attacks on security forces and para-military have been going on. After every suchincident, commissions are appointed to findout the lapses that took place and promisesare made to plug those loopholes. But thereis no concrete evidence of it working.

REPETITIVE PATTERN(L-R) Atal Bihari

Vajpayee with PervezMusharraf in New Delhiin July 2001. This was

followed by the parliament attack in

December 2001

Prime Minister NarendraModi with Pakistan PM

Nawaz Sharif during hisimpromptu Lahore visit,which was followed by

the attack on Pathankot


UNIGetty Images


At a time whenKashmir is on theboil, how is it thatthe army unit in Uriremained casualabout security? It isalso well-knownthat army camps aremost vulnerableearly morning andat dusk when dutyshift changes takeplace. Yet, the ter-rorists could clam-ber in and get at thesoldiers when theywere busy withmorning ablutionsand unarmed. Howcould the terroristsget so far into the camp without being sight-ed? Uri has a relatively less hostile popula-tion and that perhaps could have lulled thecamp commander into complacency.

These are the mistakes that India cannotafford to make. If the camp had followed thecorrect security drill, the terrorists wouldhave been spotted and challenged earlier andprecious lives would have been saved. “Weexpose our vulnerability every time. This isthe price we pay for our mistakes. It is timewe made our defenses impregnable. The restof the world cannot save us from such att-acks, we have to do it ourselves,’’ said formerforeign secretary Shyam Saran.

Defense Minister Manohar Parrikar haspromised that such a lapse would not hap-pen again. There has to be accountability.Heads have to roll and the entire securitysystem hauled up. But the debate in thecountry has so far not focused on these obvi-ous flaws in the security establishment.

How does India deal with Pakistan, whe-re successive civilian governments have beenheld hostage to the military’s diktats? Unlesscivilian governments can break the strangle-hold of the army, not much can be expected.The army is paranoid about India, more orso after its humiliating surrender in Dhakaand the creation of Bangladesh in 1971. Pak-istan’s fear is further dismemberment byIndia. This is the reason that Rawalpindi

fears India’s footprints in Afghanistan. Itsrecurring nightmare is India and Afghan-istan getting together to help Baloch inde-pendence. Pakistan uses Kashmir to hit backat India.

TERROR STATEEncouraging anti-India terror groups andarming and training them have been a partof the Pakistan army’s policy. But it is notjust India, but the US and NATO that havehad a taste of the Pakistani army and its spyagency, the Inter-Services Intelligence

TROUBLE SPOTS(Top) Beefed-up security following theattack at Pathankot

The wreckage of anAmerican aircraft in aTaliban attack inAfghanistan

Countries will allcondemn terrorbut not a singlenation will placesanctions onPakistan. Indiaknows that verywell. But there isnothing wrong inplaying to agullible domesticaudience.

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18 October 15, 2016

(ISI). Pakistan’s credentials as a country thatuses terror groups is now recognized by mostcountries. In the 1980s and 1990s, Indiandiplomats in western capitals had a toughtime trying to explain Kashmir and Pak-istan’s role in stoking the unrest. But afterAfghanistan and the problems faced by theUS and NATO troops, it has become mucheasier. Naming and shaming Pakistan maygive satisfaction to the impotent rage inIndia, but will have little effect.

“Military conflict is not the answer,’’ saidSaran. “We have to look at our strategic inte-rests. Development, providing jobs and adecent living to people is India’s core inter-est. Resources will have to be diverted ifIndia goes to war and after Mumbai, whenthis option was considered by the UPA gov-ernment the decision was that the pricewould be too high to pay.”

INDUS WATER TREATY Among the non-military options that are onthe table for the Modi government is down-grading relations with Pakistan, withdraw-ing the Most Favored Status granted to it in2012 and abrogating the Indus Water Treaty.Downgrading diplomatic ties is unlikely and

withdrawal of MFN status will not make anyimpact. Overland trade between the two nei-ghbors is just over $2 billion, and the figuresare heavily weighed in India’s favor. Most ofthe trade is through a third country likeDubai. This does not get affected.

Revoking the Indus Water Treaty, signedin 1960 is being enthusiastically promotedby some strategists. India controls the flowof three Punjab rivers—Beas, Ravi and theSutlej, while Pakistan has the three mainrivers—Indus, Jhelum and Chenab—flowingthrough it. But stopping the flow of water toPakistan would affect the lives of ordinarypeople and agriculture. Any attempt to blockwater to Pakistan will not go with India’simage as a mature democracy, which hasproblems with the Pakistan government butnot the people.

India also needs to do tackle Kashmir.Whether it is the Congress or the BJP, neither party has tried to solve the genuinegrievances of the people of Kashmir. Gov-ernments wake up only during a crisis.Unless Delhi begins talks with its own peo-ple there and finds a solution within the con-stitution, Pakistan will continue to exploitour weakness.

Modi, who aschief minister of

Gujarat hadpoured scorn on

Prime MinisterManmohan

Singh for hisweak-kneedresponse to

Pakistan, is nowcaught in hisown rhetoric.

FIELD DAY FORHARDLINERS

Sena activists in New Delhi burning

Pakistan Prime MinisterNawaz Sharif’s effigy to

protest against the Uri attack


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20 October 15, 2016

LEAD/ Defense/Pay Scale Anomalies

THE terror attack in Uri andthe subsequent death of 18soldiers, the worst in a de-cade, dried out the risingdamp of controversy over theschisms between the salaryand emoluments of the Ser-

vices and their civilian counterparts.It is tempting at this highly emotional

juncture to sweep aside all the delays androadblocks that have allowed the 6th and 7thPay Commission to widen the gulf ratherthan bridge it and give the Forces what they

Arms and the ManDespite war clouds looming on the

horizon, a plaintive plea from theForces asks the powers-that-be to

bring about pay parity between the Services and their civilian

counterparts so that their moraleremains high in these trying times

By Bikram Vohra

ALL RISKS, FEWREWARDSSoldiers manning the airforce base at Pathankot,which came under terrorist attack in earlyJanuary this year

UNI


ask for so they can go andfight the good fight. The writ-ing on the wall indicates thatUri is only a link in an insidi-ous chain and there will bemore violence in the offing.

Ergo, the pressure is onthe government to keep itsforces sweet. But that is notthe way to do things. Let’sbacktrack a bit.

GENERAL DISCONTENT The armed forces count 36anomalies in the latest reportand the three chiefs had dis-patched a collective letter to Prime Minister NarendraModi and Defense MinisterManohar Parrikar rejectingthe 7th Pay Commission intoto and refusing to implement it.

After a lull in which this bold move by thegenerals was being seen as a major shift fromthe usual surrender to the civilian masters,the capitulation occurred almost anti-cli-matically. No one is clear what went on be-hind closed doors, but the three chiefs gavein and agreed to go ahead with the recom-mendations, subject to the government pro-mising to look into four points of contentionand setting up what would quaintly be calledan “Anomalies Committee”.

It would be disingenuous to believe thatthe three chiefs were so naïve as to acceptthis premise ipso facto, especially after therun around given to the ex-servicemen overthe OROP issue.

So why did they give in so easily to theblandishments of the PM and the defenseminister, knowing full well from experiencethat going into a committee was a deathknell for the issues they had brought up?Having bought time, the government couldwell have found itself comfortably in a posi-tion to slam the door on the uniform.

MEEK WITHDRAWALThat hopefulness and a possible media-dri-ven probe into why the chiefs so unctuouslygave in and meekly withdrew their writtenprotest was sideswiped by the terrorist att-

ack in Uri and eclipsed by rage, disappoint-ment and tension that now holds sway.Hardly had the story warmed up when itslipped off the front page by the harsh realitythat Uri might well be the beginning ofsomething more sinister.

Pakistan is now preparing for what it seesas India’s “Cold Start” tactic. In such a sce-nario, the Uri attack immediately demands acarefully planned invasion of Pakistan, earmarking its frontline military installa-tions and putting it so deeply on the back-foot that any retaliation means targeting itsown people. By “immediately” think min-utes, not days.

To offset this very real fear in the Pak-istani mind, Pakistan has already startedworking out a defense mechanism whichincludes turning highways into instant air-fields and runways in case its air bases areoverrun. To many minds, Pakistan is mental-ly gearing for war even if it’s only some self-indulgent sabre-rattling designed to sendIndia the message that the surprise elementis off the table.

One would agree that in these perilouscircumstances, the armed forces suddenlybecome very important and beloved. That’spar for the course. Self-preservationbecomes the operative dynamic and muchvirtue is dredged for and found in our

It would illbehove thechiefs to use this rocky andstressful momentto push for more perks and privileges,however justifiedthey might feel.The military mindset hasn’tgot the capacityfor blackmail.

TRYING TIMESSoldiers pay homage totheir colleagues whowere martyred during a militant attack on the Uribrigade headquarters

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22 October 15, 2016

military might.That said, it would ill behove the chiefs to

use this rocky and stressful moment to pushfor more perks and privileges, however justi-fied they might feel. Even ex-servicemenwho hunger-struck for months for OROPwould balk at arm-twisting authorities now.They are not likely to hold the government toransom because the military mindset hasn’tgot the capacity for blackmail.

PAY PARITYBut whether war or peace descends on thevalley, the question of creating parity in payscales will remain and it would be in keepingwith mutual good faith if the so-called“Anomalies Committee” was ordered to fast-track its conclusions. The points are not newand do not need in-depth study.

As I had written some time back… “thecurrent “attitude” is best seen in the last ofthe four points. It will probably get the leastattention and yet, stands testament to theway the services all too often get the shortstraw. �The disability pension for an additionalsecretary is `70,000 and that of a three stargeneral only `27,000. This disparity islaughable. Down the line where the jawan ismost vulnerable, it is whittled down to noth-ing. The odds on a man or woman in uni-

form getting injured or losing a limb is sev-eral times more likely than that of the civil-ian counterpart. What would a secretaryhave to do to be disabled? Fall out of his car.”

The other three points which deal withthe salary gap are:�While all central government employeesare provided 40 pay scales, the defense per-sonnel is grade-bracketed only in 24, reduc-ing their pay hikes �Refusal to give Junior CommissionedOfficers the recognition they deserve byupping their Military Service Pay which isthe same as that of the jawans they lead�A call for a non-functional upgrade whichis enjoyed by the civil services

These are largely irritants because theman (and woman) in uniform firmly believeshe/she is seen as inferior by the civilians whorun his/her life.

UNSYMPATHETIC ATTITUDEThis disparity has generated discord and thegeneral attitude in peace time is of uneasytolerance. Even the Indian public and themedia at large are unsympathetic to the uni-form per se in times of peace. It is not sur-prising then that there is a shortage of nearly15,000 officers and 90,000 men in just thearmy. Indian youth would rather duck thephysical rigors of military life for the rela-

tively softer 9 to 5 treadmillof a civilian job.

The genesis of this shabbysaga, reflected in the dismaythat the armed forces feel,lies in the lip service and pre-election gung-ho rhetoricfrom Modi and the Indepen-dence Day speech he gave.He had invoked the senti-ment of mera jawan (my sol-dier), followed soon after by apublic display of affectionwhen three of his lady minis-ters tied rakhis to soldiers,including those stationed atSiachen base camp.

The second tier was putinto place when Modi wenton record saying: “Those whohave to work from the table

India has ammofor 12 to 20 daysof intense battle

when it shouldlast 40 days. In areport, CAG had

stated that insome weaponry,

the shortagewas 84 percent.

FAIR DEMANDEx-sevicemen

participating in SainikAkrosh Rally

demanding OROP atJantar Mantar in New

Delhi in December 2015

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LEAD/ Defense/Pay Scale Anomalies


will work from the table; and those who haveto guard the border will work at the borderwith full strength. Each one will fulfill res-ponsibility entrusted to them. Our jawansare fulfilling their responsibility.” After thesedemonstrations of so-called good faith, thearmed forces felt done down when the 7thPay Commission went the same way as the6th and the gaps remain.

In the present circumstances, the govern-ment cannot be seen to be bribing the armedforces to maintain their integrity as the keep-ers of the gate. National security and payhikes are mutually exclusive for the now.

ARMS SHORTFALLAlso, the priorities are different. Drama-tically so. The need of the hour is expendi-ture on arms and ammunition. The WarWastage Materials which is the supply main-tained to consume projectiles at severaltimes the peacetime practice level is woefullyshort. India has ammo for 12 to 20 days ofintense battle when it should be at 40 days.In a report, CAG had stated that in someweaponry, the shortage was 84 percent.

This is criminal neglect by both theCongress and BJP regimes when the defense

budget is $40 billion. One day, the peoplewill ask their political echelons why this wasallowed to happen to compromise nationalsecurity. Go shopping, is what the soldierwill also say and make us sharp and ready toprotect the country.

India’s forces will not ask for more moneynow and the government must, therefore, dothe right thing for the right reasons regard-less of whether war clouds gather or not. Nowar lasts forever and once normality returnsto the border, this issue will be raised againbecause it won’t go away.

In legal terms, in February this year, well-known lawyer Ram Jethmalani took up thecase of the ex-servicemen and petitioned theSupreme Court. In July, the Supreme Courtsummoned the government in order to seekits response to the petitioner’s claims.

The national mood at this moment wouldensure that the babu brigade would have togive in to the military demands because ofthe tension on the border and the truthbehind the old lyric: “Gods and soldiers alladore, when in trouble, nevermore.”

One would rather the disparity wasaddressed because it deserves to be add-ressed and not done at the point of a gun. IL

Why did thethree Servicechiefs give in soeasily to theblandishmentsof the PM andthe defense minister knowingfull well fromexperience thatgoing into acommittee was adeath knell forthe for theissues they hadbrought up?

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24 October 15, 2016

LEAD/ Defense/Pay Scale Anomalies/Interview

“Actions of AllGovernments

Have DeliberatelyDowngraded the

Military.”

What in your view are the anomalies of theSeventh Pay Commission?There are broadly two types of anomalies,those relating to the Seventh CPC (CentralPay Commission) and those that have beencarried forward from earlier CPCs. The totalvaries from about 30 to 50, depending onhow different analysts have calculated them.Some, having remained unresolved overdecades, cannot be resolved now. An impor-tant anomaly that appears after every CPC isPay Fixation, which is wrongly carried out,intentionally or due to wrong interpretationof rules, resulting in some seniors getting lesspay than their juniors. This anomaly contin-ues. JCOs and junior ranks suffer the most.

Then the 7th CPC correctly termed Sia-chen as the riskiest and most hazardous areaand recommended Risk & Hardship Allow-ance (RHA) at `31,500 for officers and `21,000 for JCOs and lower ranks. Yet, forcivilian employees it has recommended 30percent of the basic pay (of the new pay

At a time when the clouds of war arehovering over India and Pakistan, thearmed forces, no doubt, stands unitedin countering any threat from acrossthe border. While our men in fatiguesare steadfast in their resolve to protectthe country, they have one grouse withtheir political masters. It’s over theirpay scales which show no parity withthat of government employees.

This gap has only widened with therecommendations of successive paycommissions. The recent Seventh PayCommission’s structuring of salarieshas caused much heartburn among the three forces which felt that the officers and men had been short-changed yet again.

LT GEN VIJAY OBEROI, formerVice Chief of the Army Staff, has beenquite vocal in condemning the step-motherly attitude shown by thegovernment to the men in uniform. Hespoke to USHA RANI DAS. Excerptsfrom the interview:


matrix) as Special Duty Allowance (SDA) toall personnel of All India Services (AIS), inGuwahati or in the salubrious climate of Shi-llong or Aizawl, to name a few places. Thisworks out to much higher amounts. Is it notmind-boggling that military personnel willonly receive RHA for Siachen at much loweramounts of `31,500 for officers and `21,000for JCOs and lower ranks, while civilian gov-ernment employees will get SDA at 30 per-cent of pay (`60,000) in the north east?

What do you make of Defense Minister Ma-nohar Parrikar’s promise that he will resolvethe issues related to the 7th CPC separately?The initial response of the defense ministerto the three service chiefs informing thedefense ministry that the recommendationsof 7th CPC would not be implemented till allanomalies are resolved, was both bureaucrat-ic and naïve. It indicated how little the min-ister understands the ethos, pride and élan ofthe military.

Curtailment of salaries, pension, and al-lowances of military personnel can hardly betermed as a correct strategy or policy to bal-ance the fiscal deficit, or whatever otherexcuse the bureaucrats and mandarins of thefinance ministry can come up with. The needis to ensure that soldiers are secure and satis-fied, so that they can focus on safeguardingour borders.

Is Parrikar's response a veiled move to pacifythe three service chiefs?The raksha mantri (RM) talks a lot andmakes grandiose promises, but only imple-ments simple and peripheral issues. Muchwas recently said by the sarkari media thatthe RM has carried out a reshuffle of theMoD, wherein he neither trimmed the bur-geoning bureaucracy, nor inducted any mili-tary officers in it, as has been the mandate ofthe government since 2001, when a Group ofMinisters (GoM) headed by the deputy pri-me minister of his own party had directed theintegration of the civil and military officialsin the MoD.

What are the challenges the Indian Militaryis facing due to the politics being played out?In generalized terms, the underlying theme

of the 7th CPC recommendations and theirapproval by the government appears to be yetanother attempt to downgrade the military.

Even a cursory study of what the centralgovernment has approved indicates that the7th CPC is heavily loaded in favor of the bu-reaucracy, the police and other non-militarygovernment employees.

The real problem does not lie in notresolving the large number of anomalies thatstretch back to over four decades, but theapproach that is increasingly being adoptedby the political leadership, at the behest oftheir bureaucratic advisers towards the oneinstitution which has always performed, irre-spective of the dangers and challenges.

Sadly, the Seventh Pay Commission re-port falls well short of the standards expectedof it. Therefore, if the three service chiefshave addressed the defense minister, it is forsound reasons.

Why has the Indian government neglectedthe welfare of the military all these years?The politico-bureaucratic nexus has beensystematically lowering the status and remu-nerations of military personnel. It is an at-tack on the very institution that guaranteesthe security of all citizens of India. Motivesneed not be spelled out, but do include arro-gance; inability to grasp what the militarydesires; personal agendas; and pure greed!These actions of all governments, irrespec-tive of political affiliations, have deliberatelydowngraded the military.

UNFAIR DEALLt Gen Oberoi feels thepolitico-bureaucraticnexus has been lowering the status and remunerations of military personnel

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26 October 15, 2016

SUPREME COURT/SGPC Polls

THE Shiromani Akali Dal (SAD)had been fighting to ensure thehold of Amritdhari or baptizedSikhs over the mini parliamentof Sikhs, the Shiromani Gur-dwara Parbandhak Committee

(SGPC). While it has been trying to maintainits hegemony over the organization, the Sup-reme Court too has put its stamp of approvalon the right of Amritdhari Sikhs followingan amendment in the law.

In 2003, the Punjab and Haryana HighCourt had struck down a government notifi-cation which had barred Sehajdharis fromvoting in the SGPC elections. But the SADwas able to get an amendment done to the

Sikh Gurdwaras Act, 1925, with the help ofits coalition partner, the BJP, so that onlyAmritdhari Sikhs were eligible for voting inthe SGPC elections. The SAD wants to beseen as a party following the true tenets ofSikhism and the Amritdhari Sikhs form thecore of its supporters.

The SC disposing of the petition againstthe HC judgment through a verbal order onSeptember 14 was a natural corollary to theamendment to the Act but as it has given lib-erty to the parties concerned to challenge theamendment the issue is likely to come up for another judicial review. The president ofthe Sehajdhari Sikh Federation (SSF), DrParamjeet Singh Ranu, has said that theorganization would move the appropriatecourt after studying the detailed judgment ofthe apex court.

PANTHIC VOTEThe SAD is touting the amendment as wellas the SC verdict as a victory for the SikhPanth and is eying the unstinted support ofthe Panthic vote. The party also enjoys amajority in the SGPC but there are indica-tions that the Panthic vote is moving awayfrom it in recent months. Firstly, it had faced

Who is a True Sikh?

This is a question that may be exercisingmany Sikhs as an apex court’s oral order

seems to favor Akali Dals who want todebar Sehajdharis or un-baptized Sikhs

from voting in the SGPC pollsBy Vipin Pubby in Chandigarh

Kh Manglembi


strong reaction after the Sikh clergy, underthe control of the SGPC, last year announceda controversial pardon to the Dera SachaSauda chief Gurmeet Ram Rahim Singh forhis alleged act of blasphemy. Subsequently, aseries of incidents of sacrilege were reportedfrom across the state and two protesterswere killed in police firing.

The SAD hopes to strengthen its positionamong the devout who advocate that Sikhsvoting for SGPC must adhere to all the stricttenets of Sikhism. The Amritdhari Sikhs aresupposed to follow rigid norms after beingadministered Amrit (holy water) and bap-tized by Panj Pyaras. They are not allowed toshave their hair and have to follow the five“K” rules of kesh (unshorn hair), kara(bracelet), kangha (comb), katchcha (shortlength white undergarment) and kirpan(ceremonial dagger). On the other hand, theSehajdhari Sikhs abide by the Sikh faith butare not baptized. They may or may not beborn in Sikh families but are followers ofGuru Granth Sahib and may not keep thefive “K”s. There are also other sub-groupslike Keshadhari which are akin toAmritdhari and Patit who have opted forbaptism after violating its rules.

EXCLUDED SIKHSAs per Dr Ranu, the 2011 Census had record-ed a population of 1.75 crore Sikhs. Aftersubtracting those who were below the age ofvoting, some 70 lakh Sikhs have becomeineligible after the amendment to the Act, hesaid. This would mean, he said, that theSGPC would not remain a representativebody of Sikhs.

The Punjab unit of the Congress is alsoopposed to the debarring of non-AmritdhariSikhs. Punjab Pradesh Congress Committeepresident Capt Amarinder Singh has saidthat the move would only divide the commu-nity. Calling it “the most regressive and ret-rograde move by the government of India atthe behest of the Akalis just to retain theirhold on the SGPC”, Capt Amarinder said in astatement that every Sikh who believes in thetenets of Sikhism must have the right to votein the SGPC elections.

Besides giving it a major say in Panthicaffairs, another big attraction for a hold overthe SGPC is the fact that it is a cash cow. Ithas an annual budget of `1,064 crore and thecollection from Golak (offering by devoteesin gurdwaras) runs into crores. Besides man-aging gurdwaras, the SGPC runs several

FOLLOWING THE FAITH(Left) Sikhs recite GuruGranth Sahib on GuruNanak Jayanti in Jaipur.Many Sehajdhari Sikhs,while not abiding by thefive “K”s of the faith,also follow Nanak’s teachings and followtheir holy book

(Facing page) AnAmritdhari Sikh

� Only Amritdhari Sikhsvoted in the 2003 SGPCelections following a notifi-cation by the governmentto restrict voters toAmritdharis.� The election was chal-lenged in the Punjab andHaryana High Court whichstayed its results on thegrounds that the notifica-tion was not valid.� Some parties, includingthe state government,moved the SC against the HC stay.� Meanwhile, the centralgovernment, where SAD isa part of the NDA, amend-ed the Sikh Gurdwara Actto restrict voting toAmritdhari Sikhs.� When the case came upfor hearing in the SC, itsaid that the grounds onwhich HC had stayed theresults are no longer valid.

IN A NUTSHELL

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28 October 15, 2016

welfare and educational institutions includ-ing medical colleges.

TERM OF OFFICEThe apex court has reserved the detailedjudgment and there is still no clarity on avital issue pertaining to the status of theSGPC general body. It had simply disposedoff the SGPC petition in the light of the SikhGurdwara (Amendment) Act, 2016.

The SGPC believes that the Court has re-instated the SGPC general body which waselected in 2011. The High Court had nullifiedthe 2011 elections. Now the bone of con-tention is whether the general body electedin 2003 has been resurrected and its five-year term counted or whether it has alreadyrun out its tenure.

SGPC authorities say that the HC orderhad nullified the election before the firstmeeting of the new House could be con-vened. This technically means the Househad not come into existence and its termwould start only when it holds its first meet-ing after the Supreme Court clearance. TheSSF, on the other hand, claims that theHouse stood constituted once the notifica-tion was issued by the center. This dispute,together with the fact that the next electionsto the SGPC are also linked to a petitionpending in the High Court pertaining to theformation of the Haryana SGPC, is likely todelay elections to this organization. It, in anycase, suits the SAD.

Given the anti-incumbency sentimentsagainst the SAD, which will be completing10 years in office in February, the party wou-ld not like to go in for fresh elections to theSGPC before the assembly elections. Any set-back in the SGPC elections is bound to havean adverse impact on its prospects in theassembly elections.

Punjab PradeshCongress Committee

president CaptAmarinder Singh

says it’s “the mostregressive and

retrograde move bythe government of

India at the behest ofthe Akalis just to

retain their hold onthe SGPC”.

SUPREME COURT/SGPC Polls

PETTY POLITICS (Top) Deputy CM of Punjab

Sukhbir Singh Badal with party colleagues. The SAD has

succeeded in amending the Gurdwaras Act with the

BJP’s help

(Above) SGPC president AvtarSingh Makkar with granthis at

the Akal Takht

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‘Blue economy’ dreams

The Niti Aayog has initiated discus-sions over integrating defense and

internal security to leverage India’sposition as a major maritime nationand its potential to be an important‘blue economy’. A comprehensive 15-year perspective plan has alreadybeen prepared by the Indian navy to address various issues which need

to be dealt with effectively, like asym-metric warfare. India has great pot-ential because of its 7,500-kms-longcoastline, two million square kilo-meters of exclusive economic zone,over 1,300 islands and a massive net-work of rivers. India also enjoys astrategic location within the IndianOcean region.

An FIR has been lodged atparliament street police

station in connection with themissing files of the IshratJahan murder case. The FIRwas filed on the complaint ofan undersecretary (home), UKUpadhayay. The FIR says thatfive files are missing. Theseinclude office copy of the let-ters sent by then home secre-tary GK Pillai to the attorneygeneral, draft affidavit evaluat-ed by the attorney generalalong with the draft affidavitamended by then home minis-ter P Chidambaram and copy

of the affidavit filed in theGujarat High Court. Police areprobing the matter underSection 409 of the IPC whichinvolves criminal breach oftrust by a public servant.

FIR lodged inIshrat case

The union government hasannounced the third list of

cities shortlisted under thesmart city project. The listincludes 27 cities taking thetotal count for the cities cho-

sen so far to 60. The citieswere evaluated on variousgrounds. Out of the 27 citiesannounced, five are fromMaharashtra and four eachfrom Tamil Nadu and

Karnataka. Some ofthe cities that havebeen shortlisted areAgra, Kanpur,Jalandhar, Kota,Thanjavur, Vellore,Kohima, Rourkelaand Ujjain. A sumof Rs 200 crore willbe allotted to eachcity to improveits infrastructure.

27 new smart cities onboard

To protest against the recentmob violence in Mizoram’s

Lunglei district and sessionscourt premises, the GauhatiHigh Court haswithdrawn allits three judgesfrom the court.Mizoram, alongwith ArunachalPradesh andNagaland, fallsunder theGauhati HighCourt’s jurisdic-tion. The districtcourt building

was attacked and the officialresidence of a civil judge wasransacked after police pro-duced a 26-year-old man

before the court,on allegations of killing anoth-er person. Afterthe violence, 17 people wereremanded inpolice custody.The district unitof Mizoram barassociation hasalso condemnedthe attack.

MHA probes Zakir’s NGOCourt judgeless after mob clash

The Home Ministry is prob-ing the involvement of an

assistant director-level officialwho gave a clean chit to ZakirNaik’s Islamic ResearchFoundation on the basis of itsJune 2014 accounts. The Min-istry had earlier suspendedfour officers for renewing theforeign funding license of theNGO. The investigation willalso inquire about the circum-stances under which the clear-ance was given even thoughthe clean chit was not accept-ed as satisfactory at the higherlevels. The inspection team

has made close to 30 adverseobservations after goingthrough IRF’s accounts fromJune 2 to June 6, 2014.

NATIONAL BRIEFS

— Compiled by Karan Kaushik

The apex court asked Bihar healthminister and Lalu Prasad’s son

Tej Pratap Yadav and criminal-turned-politician from Siwan,Mohammad Shahabuddin, torespond to allegations that theywere harboring people allegedlyresponsible for murdering a journoin Siwan.

The Court wanted them to filetheir replies within two weeks.Shahabuddin is out on bail afterserving more than a decade in jail.

The top court also issuednotices to the Bihar government andthe CBI, asking the latter to goahead with the probe and submit itsstatus by October 17, the day thecourt would take up the case again.

Rajdev Ranjan was murdered inSiwan in July this year allegedly onthe instructions of Shahabuddin. Apetition was filed in the top court byhis wife Asha Ranjan, who pleadedfor a probe against Shahabuddinand Tej Pratap and shifting of thecase outside Bihar.

While highlighting the stronglink between politicians andcriminals in the state, shecontended that Shaha-buddin was getting fullstate protection and the-re was no way justicecould be done. Whilenoting the reign of terrorprevailing in Siwan, theCourt asked Siwan SP tooffer adequate security tothe journo’s family.

No privatemedical

college canhold counselingsessions foradmissions toundergraduateand post-gradu-ate MBBS anddental coursesafter declarationof NEET results,as the prerogative lies only with the stategovernment.

The Supreme Courtissued this verdict whilehearing a plea from theMadhya Pradesh gov-ernment against someprivate colleges whichhad already held coun-seling sessions.

The apex courtmade it clear that stategovernments mustadmit students through

a centralized counselingsystem. It asked thestate government tostart the process. Italso directed that earlieradmissions done by acollege or varsity thatdid not conform to thisrule would stand can-celled automatically.

It, however, refrainedfrom taking any legalaction against institu-tions or universities that had flouted the procedure.

Admission blues

SUPREME COURT

Shahabuddin under scanner

The Supreme Court has asked thecenter to respond to allegations

made in a petition filed by NGOSwaraj Abhiyan that a few states hadpaid bribes for buying AgustaWestlandVVIP helicopters. The states men-tioned in the PIL were Punjab, J&K,Chhattisgarh, Jharkhand andRajasthan. The petitioner wanted theCourt to issue instructions for aCBI/SIT probe under its supervision.

The Court directed PrashantBhushan, who represented the NGO,to approach the center and the con-cerned states with the petition. The

matter will be taken up again inNovember.

Bhushan managed to prevail uponthe Court to take up the petition, argu-ing that the matter involved publicinterest. He contended that the CAGreport had clearly indicated thatsomething was amiss in the dealswhich were clearly not transparent. No proper tenders had been issued for purchasing the choppers, he pointed out. He pleaded that the dealsneeded to be scrutinized closely bythe CBI or ED, as was done in thecase of purchases by the center.

Probe chopper purchase: PIL

30 October 15, 2016

The plea for a renewed direction to theCBI for a probe into the alleged dis-

proportionate assets of SP supremoMulayam Singh and his family was struckdown by the apex court. The request wasmade by advocate Vishwanath Chatur-vedi, who contended that the apex court

did not respond to his reservationsagainst CBI’s conduct in the probe, madein 2008. Incidentally, it was on Chatur-vedi’s plea that the Supreme Court hadordered a CBI probe into the matter.

The Court ruled that all apprehensionsraised by Chaturvedi had already beendealt by it in its 2012 verdict. In thatorder, the Court had asked CBI to go full

throttle on the probe and with completefreedom without succumbing to anypolitical pressure. Later, the centralinvestigative agency had wrappedup the case and pronouncedMulayam “not guilty” in 2013 asthere was not enough evidence tonail him. Mulayam had been accu-sed of amassing illegal wealth ofover `100 crore between 1999-2005 disproportionate to his knownsources of income.

Anew law introduced by the Maharashtragovernment to regulate Mumbai dance

bars—Maharashtra Prohibition of ObsceneDance in Hotels, Restaurants and Bar Roomsand Protection of Dignity of Women (workingtherein) Act, 2016—became a bone of con-tention between the bar owners and the stategovernment in the apex court.

The law restricts the timings of dancebars from 6.30 pm to 11.30 pm, bans alcohol and mandates installation of CCTVs in bar rooms.

The Court did not take kindly to the moveto ban alcohol and install CCTVs. It felt thatthe step was “absurd”, “arbitrary” and“regressive”. It also raised objections as tohow the state government could order asweeping ban on alcohol when the bars hadvalid licenses. On CCTVs, the court felt theycould be put up only at the entrance.

Indian Hotel and Restaurant Association

raised several objections to thenew law. It contended thatCCTVs affected the guests’right to privacy. It alsopointed out that the newlaw hampered the busi-ness of bar owners anddance girls and took awaytheir fundamental right, apoint supported by SC in itsearlier verdict.

The state government stood itsground on the plea that it hadabsolute right to ban alcohol andinstalling CCTV was a move to keep a tab onunruly behavior and ensure law and order.

Putting the matter for further examinationon November 9, the court, however, allowedthree bars with valid licenses as of now toserve alcohol, run without CCTV and remainopen till 1.30 pm.

Regressive bar regulations

Plea against Mulayam quashed

—Compiled by Prabir Biswas, Illustrations: UdayShankar


The existing legal penalties for talk-ing on mobiles while driving are

not deterrent enough, the SupremeCourt ruled. It felt that the centermust consider tougher punishmentfor the offence. As of now, Section184 of IPC dealing with the violationmandates a six-year jail term and`1,000 fine. For repeat offenders, it isa maximum two-year incarcerationand `2,000 as fine.

Even the centre felt that the exist-ing laws were not enough to controlsuch offences. The court then askedit to ensure that the existing provi-sions are revised. The matter will betaken up on December 6.

Need strongerdeterrent

Case!D

OES photocopyingportions of an academ-ic work by students oron behalf of them amo-unt to infringement ofcopyright? On Septem-ber 16, Justice RS End-

law of the Delhi High Court delivered a 94-page landmark judgment in which he dis-missed a plea filed in 2012 by Oxford Uni-versity Press, Cambridge University Pressand Taylor and Francis (Routledge) againstRameshwari Photocopy Shop in the DelhiSchool of Economics and Delhi Universityfor infringement of copyright laws. The petitioners had demanded a compensation of `60 lakh.

The publishers had also sought a perma-nent injunction restraining the two defen-dants from infringing the copyrights of “theirpublications by photocopying, reproductionand distribution on a large scale and circulat-ing the same and by sale of unauthorisedcompilations of substantial extracts frompublications by compiling them into coursepacks/anthologies for sale”.

COURTS/ Delhi/ Copyright Infringement

While dismissing a plea by international publishers, a recent judgment holds that photocopying portions of text books is a legitimate exercise if carried out for academic purposes By Ajith Pillai

A Text Book

The plaintiffs (the publishers) submittedto the court “four course packs being so soldcontaining photocopies of portions of publi-cations varying from 6 to 65 pages”. It wasfurther their case “that the said course packssold by the defendant No.1 (the photocopyshop) are based on syllabi issued by thedefendant No.2 University for its studentsand that the faculty teaching at the defen-dant No.2 University is directly encouragingand recommending the students to purchasethese course packs instead of legitimatecopies of plaintiffs’ publications”. It was alsothe case of the publishers that the libraries ofthe University are issuing books published bythem to be photocopied.

DISMISSAL OF PLEAThe Court, while dismissing the plea, madesome key observations of the Copyright Actand its application in the modern technolog-ically advanced times. To quote: “Copyright,specially in literary works, is thus not aninevitable, divine, or natural right that con-fers on authors the absolute ownership oftheir creations. It is designed rather to stim-

32 October 15, 2016

ulate activity and progress in the arts for theintellectual enrichment of the public. Copy-right is intended to increase and not toimpede the harvest of knowledge. It is in-tended to motivate the creative activity ofauthors and inventors in order to benefit the public.”

The Court further held that “it is permis-sible for the defendant No.2 University to onpurchasing book(s) and stocking the same inits library, issue the same to different stu-dents each day or even several times in a day.It is not the case of the plaintiffs that the saidstudents once have so got the books issuedwould not be entitled to, instead of labor-iously copying the contents of the book ortaking notes there from, photocopy the rele-vant pages thereof, so that they do not needthe book again”.

Not everyone agreed with the court rul-ing. Some would even think it may set aprecedent which would discourage publish-ers from releasing their books in India. This,it was felt, would be a great setback for aca-demic study in this country. Moreover, thejudgment ignored the profits made by the

photocopy shop (see the counterview to thejudgment in the accompanying article).

Ironically, when the publishers had app-roached the Court six years ago, it triggeredprotests from the student community andnoted writers who author academic works.The latter came out in defense of the studentsand their right to photocopy and the Univer-sity, the right to recommend students to buycourse packs of books prescribed for addi-tional reading.

Press reports at that time indicated that300 academics wrote a letter to the publish-ers urging them to withdraw their case.Among those who supported the studentswas Nobel laureate Amartya Sen. NiveditaMenon, professor at JNU, was quoted on theAl Jazeera website as saying: “The number ofacademics who’ve signed the petition shouldbe clear indication that authors do not sharethese concerns (of the publishers). We wantour works to be available as widely as possi-ble. The action is entirely to do with profit,and nothing to do with the authors, whoseliving expenses are met by the publicly fund-ed university system, not piddly royalties."

STUDENTS’ NEEDS Rameshwari PhotocopyShop in the DelhiSchool of Economicswhich was at the centerof the publishing storm


Anil Shakya

Others too joined the chorus. ThomasMetcalf, a professor emeritus at the Univer-sity of California, Berkeley, was quoted on thesame website as stating: “As an author whosewritings appear to have triggered this contro-versy, I am happy to accept smaller royal-ties on sales of my books to widen the audi-ence, especially in a developing country suchas India.”

INFRINGEMENT AND TECHNOLOGYThe Delhi High Court judgment seems tomake a case for the right of students to copy

portions of a book for the sole purpose ofstudy. It does not see such copying as anoffense. Having established this by quotingfrom the Copyright Act, it goes on to say: “Itcannot be lost sight that Section 63 of theCopyright Act constitutes infringement ofcopyright, an offence punishable with impri-sonment for a term not less than six monthsand extendable to three years—and with afine. (But) when an action, if onerously doneis not an offence, it cannot become an offencewhen, owing to advancement in technologydoing thereof has been simplified. That iswhat has happened in the present case.

“In the times when I was studying Law,the facility available of photocopying waslimited, time consuming and costly. The stu-dents then, used to take turns to sit in the lib-rary and copy by hand pages after pages ofchapters in the books suggested for readingand subsequently make carbon copies….However, with the advancement of technolo-gy the voluminous books also can be photo-copied and at a very low cost. Thus, the stu-dents are now not required to spend day afterday sitting in the library and copying pagesafter pages of the relevant chapter of the syl-labus books. When the effect of the action isthe same, the difference in the mode of actioncannot make a difference so as to make onean offence.”

The Court also pointed out that the issue

According to press reports, 300 academics, including Nobel laureate

Amartya Sen, had written a letter tothe publishers urging them to

withdraw their case.

Nivedita Menon,professor at JNU,

had told media thatthe number of

academics who’vesigned the petitionshould be a clear

indication thatauthors do not

share the concernsof the publishers.

34 October 15, 2016


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must be looked at in a different light in thisday and age. Justice Endlaw observed thatcell phone cameras could be employed bystudents to copy pages of a book. It couldthen be printed out, viewed on a larger screenor shared with others. This action, he noted“would again qualify as fair use which cannotbe stopped”.

The Association of Students for EquitableAccess to Knowledge (ASEAK) which waspermitted by the Court to become a defen-dant, is naturally happy with the ruling. Itspresident, Apoorva Gautam and general sec-retary Usman Jawed Siddiqi, in a joint state-ment, have called the judgment a “victory forstudents and access to knowledge”.

RESOURCE CRUNCHASEAK’s take reflects what the larger studentcommunity feels on the issue. “Sure, publish-ers are running profit-making enterprisesbut universities are not a market. Studentspursuing higher education in India comefrom starkly different socio-economic back-grounds and further, most public universitieswork with a severe resource crunch. This isworsened by the high costs and very limitedreach of academic books which the publish-ers anyway do not seem to be producing forstudents. They only make it to libraries andshelves of highly-paid academics. Photo-copying, then, is just a quick fix in a systemwhich is unable to meet simple demands ofstudents studying in universities. In this situ-ation, to put restrictions and further try tocontrol and profit from a system which initself is ramshackle and can hardly be afford-ed by a majority of students is pure evil,” saysits statement.

The student organization also rejected thepublishers’ argument that spending money“to purchase books will amount to nothingmore than a couple of extra coffees or aDominos pizza”. It pointed out that bookscost thousands of rupees and cannot beafforded by a vast majority of students whocome from economically weaker sections.Such classist thinking, it said, “tries to simplyerase the experience of the many who strug-gle against severe odds just to make it to theinstitutions of higher education in our coun-try. Moreover, it is uncomfortably at peace

with the idea that higher education may onlybe restricted to the rich”.

It is not clear whether the publishers willappeal against the Delhi High Court judg-ment. But the copyright issue has become awidely discussed one on the University cam-pus as well as in social media. For now, stu-dents can rest assured that photocopying istheir legitimate right, provided it is for aca-demic purposes.

WAR OF BOOKS(Top) Students comeout in support of photocopiers

(Above) It is not possible for students to buy books worththousands which arefound in libraries


Anil Shakya

ONE of the main arguments ofthe defendants in the copy-right case reads: “Studentswould be reluctant to buy theentire publication just for

reading a particular chapter/extract thereinand cannot afford to buy 35 to 40 books, por-tions of which are prescribed in the syllabiand/or suggested for reading”. It is this argu-ment, which has made the judgment appearfavorable to the interests of students. How-ever, the inclusion of students into this argu-ment is actually the insertion of a phantomparty. The term “phantom party” in the con-text of this trial means a party that is notactually a stakeholder in the outcome.

At no point in the trial were the plaintiffs

(the publishers) expecting students to pay forthese books. It is expected that institutionslike Delhi University (DU) and Delhi Schoolof Economics (DSE), charging fees for educa-tion and having themselves included thesetexts in their own syllabi, are expected to pur-chase and store multiple copies of such texts.The most well-stocked university librariesworldwide such as Oxford and Cambridgefollow this convention. Many Indian univer-sities do or are expected to do the same. It iscommon sense that if a university prescribesa text, it is expected to stock it in its library inadequate numbers.

No university library is expected to keep acopy per student for a prescribed text, but asufficient number that can be shared by the

While manyhave welcomedthe Delhi HighCourt judgment,some have serious reservationsabout it. Hereare three ofthemBy SampadPatnaik

Three Rebuttals

36 October 15, 2016

Counterpoint

Bhavana Gaur


IL

students is expected. Certainly, this maymean that students have to manage theirstudy hours and strategies to access books,but management within limited resources isan essential part of higher learning.

2. Protecting profit siphoning and cappingprofit making

The Delhi High Court has protected theprofits of the photocopier at DSE and DU,while capping the profits of the publishers.Both parties are part of the same educationbusiness. DU and DSE, which are obligatedto buy more copies of the books they havethemselves included in syllabi, are makingprofits by reducing expenses involved in buy-ing books for their students. RameshwariPhotocopy Shop is making profits copyingthe books on a regular basis; it gets largeorders precisely because the extracts areincluded in coursework and students have nooption but to buy copies.

So, while profit-siphoning on the part ofthe defendants is protected, profit-making ofthe publishers is not.

3. The risky path towards unregulated cor-porate personhood

Last, but not least, the Court has stret-ched the interpretation of the exemption inthe Indian Copyright Act, by substituting“institutions” in place of teachers. As per theterms of the Act, a teacher allowing a studentto make a copy of a book for specific queriesor research requirement is not infringementof copyright.

This situation is starkly different frominstitutions, DU and DSE, encouraging pho-tocopying on a regular basis because they donot wish to invest in learning resources.

“Teachers” cannot be the same as “institu-tions”. By drawing this equivalence betweenthe individual and the collective, the DelhiHigh Court has opened the Pandora’s Box of“corporate personhood”. This legal concept,widely controversial in the US, has allowedcorporations to have a right to free speechjust like citizens. This has led to unlimitedcorporate money in electoral politics in theUS, thereby undermining democracy.

Interest groups favoring the judgmenthave implied that even if the profits of the

publishing industry take a hit, a dent in pri-vate profits is of lesser importance than thesocial advantages of disseminating knowl-edge without cost barriers. However, theseinterest groups overlook the reality that thedisadvantage from this verdict is not restrict-ed to private profit of the publishing industry.For example, if publishers fail to make moneyon quality research on Indian economics,they will no longer be eager to commission orfund such studies.

In addition, high-quality research onIndian economics and society is not just usedby students to pass an exam. Such research isknown to have an almost imperceptible butreal, long-term, trickle-down effect. Researchin the social sciences, especially when com-pelling, trickles out of texts into academicseminars, into news coverage, wider publicattention, civic activism and policy correc-tion. If publications of quality research aredis-incentivized, then not just publishers andstudents, but the wider society is at a loss.

The publishers may or may not appeal.However, the outcome of the trial and its dis-cussion in the news has allowed a righteousfervor to swamp the sense of nuance andapplication of logic that must guide the deliv-ery of justice.

(The writer was a journalist withThomson Reuters and a former Legislative

Assistant to a Member of Parliament)

IN A BINDUniversities, which aresupposed to stackenough number ofbooks, cut on costs andlet photocopiers siphonoff publishers’ profits


Anil Shakya

IN an unprecedented move, a fullbench of the Madras High Courthas warned the Jayalalithaa gov-ernment that it would be con-strained to ask the central government to issue “adminis-trative directions” to the state

government if necessary funds are not allot-ted for the functioning of the judiciary in the state. The fund crunch has led to the

COURTS/ Madras/Funds

In a sign of growing tension, the Tamil Nadu government hasnot given enough funds for the judiciary, forcing the HighCourt to pass an anguished order in this regard By R Ramasubramanian in Chennai

cancellation of a training program for judi-cial officers, scheduled for the second weekof October.

The issue came up on September 14 be-fore a three-judge bench of Chief JusticeSanjay Kishan Kaul and Justices TS Siva-gnanam and R Mahadevan. The issue cro-pped up when the bench was hearing threePILs by different persons—one of the PILswas filed 14 years ago—praying for adminis-trative and financial autonomy for the high-er judiciary in the state. The PILs wantedthe judiciary not to rely on the state govern-ment for financial sanctions and also de-manded that the High Court be insulatedfrom such dependence on the state govern-ment so that it could maintain its auto-nomous status.

“It is with deep regret we note that a judi-cial training program scheduled for secondhalf of October 2016 has been cancelled onaccount of lack of funds with the judicialacademy. As on date, about 176 financialproposals are pending, with the govern-ment,” a visibly upset full bench noted in itsorder. The bench also said that “in the over14 years of pendency of this petition, the

What’s theFund-a?

38 October 15, 2016

that if the situation so arises administrativedirections can be issued by the central government.”

Referring to the state government’sresponse to the whole issue, the benchobserved: “Government pleader submits onbehalf of the state government that the pro-posals are being processed on an urgentbasis. We can only hope that a situation doesnot come to pass where recourse to provi-sions of the Constitution becomes necessaryon account of not making available thefunds for the functioning of the judiciary.”

FINANCIAL EMERGENCY Observers feel that this development clearlyproves the dire straits that the finances ofthe state judiciary are in and also betrays theinsensitive attitude of the state governmentto the whole issue. “This is a clear indicationof the financial emergency prevailing in thestate’s judiciary. That’s why the full benchhad warned that it may use the provisions ofthe Article 256 of the Constitution. The factthat 176 proposals were pending with thestate government for sanction is proof thatthe situation could be best described as suchone of ‘financial emergency’,” said P Wilson,a senior lawyer and former AssistantSolicitor General of India to India Legal.“Chocking the fund flow is nothing butstrangulating the judiciary.”

Another senior lawyer said that the prob-lem with the AIADMK government was

problem of finances for the judicial infra-structure and running the courts has stillnot been solved”.

ARTICLE 256 Then the bench in a surprise move sum-moned the senior-most central governmentlaw officer for Madras High Court—Addi-tional Solicitor General of India (ASG) G Rajagopalan—to its court hall and askedhim to assist the Court in finding a solutionto this vexed problem. The bench asked theASG how the Madras High Court couldfunction if fund flow from Tamil Nadu gov-ernment had dried up. It was at this junc-ture that Rajagopalan said that if the situa-tion so warranted, the High Court couldinvoke Article 256 of the Constitution.(Article 256 says the executive power ofevery state shall be so exercised as to ensurecompliance with the laws made by parlia-ment and any existing laws which apply inthat state. The executive power of the Uniongovernment shall extend to the giving ofsuch directions to a state government asmay appear to the government of India to benecessary for that purpose).

The bench in its order noted: “It is in theaforesaid circumstances that we called uponthe ASG of India to assist us as to how thefunctioning of the court would take place iffund flow does not arise from the state government. He has drawn our attention to Article 256 of the Constitution to submit

The three-judgebench of ChiefJustice SanjayKishan Kaul (L-R)and Justices TSSivagnanam andR Mahadevan was upset that

176 financial proposals arepending with thegovernment.


that there was no fixed allocation of fundsfor the judiciary to meet its expenses. “In theprevious DMK regime, a fixed amount wasallotted as a budgetary provision to meet theneeds of the judiciary in the state and thisamount was utilized in a fragmented man-ner over the years. But sadly, there is nofixed budgetary provision of this sort in theJayalalithaa government and this is precise-ly one of the reasons creating havoc in thefunctioning of the judiciary.”

The lack of interest on the part of theJayalalithaa government in ensuring freeflow of funds for the judiciary was enunciat-ed in the High Court order: “ASG furtherstates that there should be a better coordi-nation between the law officers of the central and state government for findingsolutions to this problem specifically in the context of the central government allocationhaving lapsed for two financial years 2014–2015 and 2015–2016 on account of the failure of the state government to utilize the funds.”

To mitigate this problem, a petitioner inone of the three PILs, advocate Elephant G Rajendran had this solution to offer: “Anindependent judiciary is a constitutionalmandate. The judiciary should not be madeto depend on the will and pleasure of thegovernment. For this, the concerned author-ities should provide sufficient consolidatedfunds every year.” The bench posted the casefor further hearing on November 10, 2016.

UNEASY CALMEver since Justice Kaul took over the reins ofthe Madras High Court, an uneasy calm hasprevailed between the judiciary and theJayalalithaa government. The fact that thereare over 1,000 contempt petitions pendingagainst the state government speaks vol-umes about this relationship. Repeatedadjournments sought for filing counter in

issues related with the state government hadangered Justice Kaul. At one point of time,he even started imposing a fine of `25,000for every second adjournment sought by thegovernment. Since then, the state govern-ment promptly files counters in cases com-ing up before a bench of the Chief Justice,but the situation is continuing as usual incases pending before other judges.

It may be recalled that this is the secondtime in the past year that Justice Kaul hassent an SOS to the center. “Last year, agroup of lawyers held a day-long protest inhis court hall demanding that Tamil be made as the official language of the court.A few days after that, more than two dozenlawyers laid a siege at his residence. Such activities forced a full court meeting to order Central Industrial Security Force(CISF) cover for Madras High Court premises. After the CISF took over, the functioning of the Court is pleasant andsmooth,” said A Kumaraguru, a central

“This is a clear indication of the financial emergencyprevailing in the state’s judiciary. Chocking the fund

flow is nothing but strangulating the judiciary.”—P Wilson, a senior lawyer and

former Assistant Solicitor General of India

40 October 15, 2016

COURTS/ Madras/Funds

government standing counsel.

UNRULY BEHAVIOURSome lawyers say there is more than meetsthe eye in the High Court. “Some unusualthings happened ever since Justice Kaultook over. The first day when he sat on hischair, a group of advocates barged in andshouted, ‘Justice Kaul go back to Kashmir’.This was followed by day-long protests andhis residence was sieged. It was night timeand the chief justice was not in his house. Afew lawyers urinated on the compound wallbut the police turned a Nelson’s Eye to thishooliganism. Then came the lawyers’ strikewhich went on for over three months as theydemanded that rules brought in the Advo-cates’ Act to tame the erring lawyers bewithdrawn. The way the lawyers’ strugglewas sustained has given the impression thatsome powerful influences from outside arebacking them to the hilt. Finally, the HighCourt announced that new rules to punish

LET LAW AND ORDER PREVAIL(Left) Following incidents of unruliness, the Madras HighCourt had to order CISF cover to ensure smooth functioning;(Below) Chief Justice Kaul’s judgment on Tamil writerPerumal Murugan’s case came in for much praise

erring lawyers will not be implemented. Soimpartial observers with minimum knowl-edge about the functioning of the judiciaryand the executive can draw their own con-clusions,” said a senior lawyer practicing atthe Madurai bench of the High Court.

Justice Kaul, one of the finest judges inMadras High Court, has given some path-breaking judgments during his tenure. Hisjudgment on Tamil writer Perumal Muru-gan’s case was praised both at national andinternational forums. This judgment virtu-ally resurrected the dead author.

Justice Kaul is expecting an elevation tothe Supreme Court. This will be a loss forMadras High Court.

The PILs wanted the judiciary not to relyon the state government for financialsanctions and demanded that the Courtbe insulated from such dependence.

IL


IF you sow the wind, you may well endup reaping a devastating whirlwind.And when governments go throughthis exercise with short-sighted gainsin mind, thousands pay the price for

it. It is precisely such a scenario that hasunravelled in Gujarat.

It was on May 1, Gujarat Foundation Day,that then Anandiben Patel government gran-ted 10 percent quota to the EconomicallyBackward Classes (EBC) in admissions toeducational institutions as well as in govern-ment jobs. An ordinance was hurriedlypassed to quell the agitation by Patidar Ana-

COURTS/Gujarat/EBC Reservation

The Gujarat government’s move to provide quotas to the Economically

Backward Classes has come unstuck inthe High Court. It now awaits resolution in

the Supreme Court By RK Misra in Gandhinagar

Quota Confusion

Rulesmat Andolan Samiti (PAAS) led by its con-venor Hardik Patel which was demanding re-servations for the Patel community under theOBC quota.

The state government, which moved inhaste, has had to subsequently repent afterthe Gujarat High Court struck down theOrdinance terming it unconstitutional. TheVijay Rupani government, which succeededthe Anandiben dispensation, has appealedagainst the decision in the Supreme Courtwhich is seized of the matter.

KNEE-JERK ACTIONCaught in the pincer of a knee-jerk govern-ment action and judicial review are thou-sands of students and their anxious parentswho have been gripped by uncertainty. Theissue has also thrown the entire admissionstimetable in the state out of gear, bringingrelated academic activity to a virtual crawl allover Gujarat.

As if this was not enough, the Gujarat go-vernment on September 23 evening issued agazette notification keeping in abeyance the

42 October 15, 2016

10 percent EBC quota. But later that verynight upturned the notification it issued afew hours ago. “It was a confusing notifica-tion so we withdrew it,” explained deputychief minister Nitin Patel seeking to pass itoff as an innocent gaffe.

However, the Congress opposition saw itas a strategic gamble come unstuck. “Thisentire move is a sham of the ruling set-up. Ifthe government was serious, it should havegone to the Vidhan Sabha with a Bill and gotit passed. This BJP government was neverserious about it,” said Shaktisinh Gohil,national spokesperson of the Congress. Har-dik Patel, the Patidar leader, exiled fromGujarat for six months under High Courtdirections and presently living in Udaipur,termed the promulgation of the ordinanceitself as a “lollipop” offered by the govern-ment. He saw the flip-flop as a deliberateattempt at misleading the over three croreupper caste population of the state.

The controversial notification issued onSeptember 23 said that the 10 percent EBCquota has been kept in abeyance. Earlier, the

Supreme Court in its September 9 interimorder had thought it fit to refer the issue to afive-judge Constitution bench. It also saidthat admissions given to students under EBCbefore August 8 would not be cancelled, butthere would not be any further admissionsunder the quota.

Given this backdrop, the gazette notifica-tion led to an explosion of sharp reactionsfrom all quarters, including the BJP’s ownranks. This unnerved the government whichlate in the night passed another gazette orderseeking to cancel its own order.

The Ordinance on May 1, 2016, to giveeffect to the EBC quota was done to knockthe wind out of the sails of the PAAS cam-paign which has been demanding reservationfor Patels in educational admissions and gov-ernment jobs under the Other Backward Cla-ss (OBC) category. In the last 18 months, thestir had gained considerable traction whichdented the Patel vote bank of the BJP. Theparty’s counter to it was to create the EBCquota knowing fully well that it would be setaside by the courts since any further reserva-tion would violate the Supreme Court’s 50percent ceiling on all quotas.

STATE GOES IN APPEALAfter the Gujarat High Court struck downthe Ordinance terming it as unconstitutional,the state government appealed against theruling in the Supreme Court. The three-jud-ge apex court bench comprising CJI TS Tha-kur and Justices AM Khanwilkar and DYChandrachud stayed the Gujarat High

Caught in the pincer of a knee-jerk state governmentaction and judicial review are thousands of students and theiranxious parentswho are grippedby uncertainty.

QUOTA POLITICS(Left and above) PatidarAnamat Andolan Samitileader Hardik Patel at theKranti Rally in Ahmedabad


UNI

UNI

IL

Court order but made it abjectly clear thatbeyond the admissions already grantedunder the EBC category, there will be nomore till it adjudicates on the matter.

So, the entire process stands delayed andis struck in a limbo until the Supreme Courtdecision is known. Following the High Courtdecision quashing the EBC quota, the stategovernment has put on hold all recruitmentsand admissions in higher education withimmediate effect. On August 8, a circular iss-ued by the Social Justice and Empowermentdepartment of the Gujarat government brou-ght all recruitment in 23 departments andinstitutes of higher education to a halt. Thestate government had firmed up plans torecruit 68,000 employees before the elec-tions due in Gujarat in November-December2017. However, the decision is on hold pend-ing the apex court’s final verdict.

CONFUSION PREVAILSThe confusion over admissions has beenmore pronounced in medical seats. The stategovernment was caught in a bind betweentwo Supreme Court orders. An earlier order,in another matter, mandated the completionof medical colleges admission process in thecountry by September, while in the EBCappeal, the admission process has beenordered to be kept in abeyance. Realizing theimplications, the Gujarat government decid-ed against implementing the EBC quota inadmission to medical colleges this year.

The million-dollar-question is what wasthe hurry when it was generally anticipatedthat the Ordinance may not be able to with-stand judicial scrutiny? The Gujarat HighCourt division bench of Chief Justice RSubhash Reddy and Justice Vipul Pancholi,in their judgment on August 4, 2016 settingaside the Ordinance, ruled that since thequota exceeds the 50 percent ceiling on re-servations fixed by the Supreme Court, it wasillegal. In Gujarat, OBCs get 27 percent, SCs7 percent and STs 15 percent reservationrespectively, taking the total quota to 49 per-cent. The Court also took exception to thegovernment not undertaking a technical im-pact assessment study or collecting empiricaldata before concluding that such reservationwas necessary.

Meanwhile, parents and guardians of thestudents who have secured admission underthe EBC quota are on pins and needles untilthe Supreme Court decides. “Imagine theirplight after running from pillar-to-post man-aging the requisite EBC certificate and nowfinding themselves stuck,” said Dr ManishDoshi, the spokesperson for the GujaratCongress, squarely blaming the governmentfor the mess. “The High Court has termed theEBC quota as unconstitutional but the rulingBJP wants to keep up this quota pretenceuntil the 2017 elections in Gujarat,” pointedout Hardik Patel.

Very clearly, politics rather than commonsense has prevailed.

Vijay Rupani,Chief Minister, GujaratHis governmenthas appealedagainst theGujarat HighCourt’s decisionin the SupremeCourt, which isnow seized ofthe matter.

Anandiben PatelFormer CM of GujaratThe AnandibenPatel governmenthad granted 10 percent quota toEBCs to quell the PAAS agitation led byits leader, Hardik Patel.

44 October 15, 2016

COURTS/Gujarat/EBC Reservation

46 October 15, 2016

COURTS/ Mumbai/Female Prisoners

ON September 19, the Bom-bay High Court gave a jud-gment which brought suc-cor to prisoners who werefinding it difficult to get anabortion due to unneces-sary red tape. The Court

found that procedures, not prescribed underthe Medical Termination of Pregnancy(MTP) Act, 1971, were being followed. Notonly were these procedures unnecessary, butalso served no purpose other than to delaythe termination of an unwanted pregnancy.

A City Civil and Sessions Court judge whovisited Byculla District Prison under theorders of the Bombay High Court cameacross a prisoner who was four months preg-nant and wanted to terminate her pregnan-cy. Her reason was that she already had afive-month-old baby who had many healthproblems, including convulsions/epilepsy,hernia, loose motions and fever. The prison-er herself was in bad health, suffering fromrepeated bleeding. Under the circumstances,she would not have been able to take care ofthe second baby. The medical officer of thejail was also of the view that the pregnancyshould be terminated.

The judge was informed thattermination of the pregnancy it-selfwould take a long time as permis-sion would have to be ta-ken from acommittee that look-ed into thesematters. Therefore, the matter wasplaced before the Bombay HighCourt.

QUICKER PROCESSLooking at the provisions of Sec-tions 3, 4 and 5 of the MTP Act, theCourt found that permission fromthis committee was not necessaryat all. What was required was thatmedical practitioners examine thepatient and if they felt that herphysical or mental health would beadversely affected by the birth ofthe baby, the pregnancy should beterminated as per her desire.

The High Court observed thatthe committee’s (formed under rule2(e) of the Medical Termination of

Abortion Made Easy

In a progressive judgment, the Court hasremoved red-tapism for prisoners wanting

to abort their fetus and has facilitatedfaster examination for them in hospitals

By Nayantara Roy

Rajender Kumar


Preg-nancy Rules, 2003 and referred to inSection 4 of the MTP Act, 1971) only func-tion was to grant approval in respect ofplaces other than hospitals, where medicaltermination of pregnancies could be effect-ed. Somewhere along the way, the committeehad started to decide which cases could besent for MTP, leading to delays which couldseriously affect the termination.

The Court had appointed a lawyer as ami-cus curiae in the case, who found anothercase—that of a 15-week pregnant prisonerwho wanted to terminate her pregnancy butwhose request was not being heeded. Underthe orders of the Court, she was admitted tohospital and after examination by doctors,the pregnancy was terminated.

The Court then put in place a process hel-ping compliance with the MTP Act and whi-ch facilitated faster examination of pregnantpatients. This included getting the women toOPDs of hospitals in time for testing.

LIVE-IN RELATIONSHIPSThe judgment has made some interestingstatements, some of them made in passingbut pertinent nevertheless. The observationof the judges that Explanation 2 to Section 3(2) of the MTP Act could be extended to live-in relationships, finds support from advocateGautam Bhatia, who also feels that the ambitof the section should be extended to includeall persons. Explanation 2 reads: “Where anypregnancy occurs as a result of failure of anydevice or method used by any marriedwoman or her husband for the purpose oflimiting the number of children, the anguishcaused by such unwanted pregnancy may bepresumed to constitute a grave injury to themental health of the pregnant woman.”

Bhatia attributed the legal justificationfor extending the failure of contraceptionclause to “live in” couples to an interpreta-tion of the constitution. He said: “Conseque-ntly, it would be vulnerable to a possible fu-ture constitutional challenge asking the Cou-rt to strike off the word ‘married’ from thestatute altogether, and extend its applicationto all women. Therefore, the Court’s laconicreading of ‘married’ to include relationshipsin the nature of marriage, despite its undeni-ably important practical implications, is so-

mething of a missed opportunity.”Critics of the current legislation say that

the clause relating to MTP on account of fail-ure of contraception should be extended toall people, and not just married couples. Inhis article, Bhatia also takes this position.

However, the rationale for extending theambit of Explanation 2 to “live in” couplespredates the constitution and has commonlaw roots. There have been several

The Medical Termination ofPregnancy Amendment Bill,

2014, gives women greater power inmaking the decision to terminate apregnancy. The current MedicalTermination of Pregnancy Act, 1971,requires a doctor’s concurrence toterminate the pregnancy in the first12 weeks and the concurrence oftwo doctors to terminate the preg-nancy in the period from 12 to 20

weeks. After that period, Section 5contains an emergency provisionallowing termination only if the life ofthe mother is threatened.

The Amendment Bill however,provides for termination of pregnan-cy in the first 12 weeks solely on thedecision of the pregnant woman.The concurrence of one doctor willbe needed for the period from 12 to24 weeks, if the Bill is passed.

In a recently Supreme Courtcase of Ms X, the Attorney Generalhad argued that an overly liberalMTP Act may lead to an increase infemale infanticide. One answer tothis argument, given by researchassociate Shweta Krishnan of IITMadras in her paper in the IndianJournal of Medical Ethics is thatlaws like the Pre-Conception andPre-Natal Diagnostic TechniquesAct, 1994, are among mechanismsto control that crime.

MTP Act

The observation of thejudges that Explanation2 to Section 3(2) of theMTP Act could beextended to live-in relationships, finds support fromadvocate GautamBhatia, who also feelsthat the ambit of thesection should beextended to include all persons.

IL

48 October 15, 2016

judgme-nts of late recognizing the rights oftwo people living together as a couple.

Pre-independence judgments have beenpassed where, when no proof of marriage co-uld be submitted, the fact that they had livedtogether and been accepted as such by socie-ty was accepted as a spousal relationship incommon law (see A. Dinohamyvs W L Bala-hamy, AIR 1927 PC 185).

WOMAN’S CHOICEMore importantly, the Bombay High Courtjudgment’s interpretation of the MTP doesnot restrict the application of the Act to thetwo Explanations to Section 3(2). The judg-ment said: “A woman irrespective of her ma-rital status can be pregnant either by choiceor it can be an unwanted pregnancy. To bepregnant is a natural phenomenon for whichwoman and man both are responsible. Wan-ted pregnancy is shared equally, however,when it is an accident or unwanted, then theman may not be there to share the burdenbut it may only be the woman on whom theburden falls. Under such circumstances, aquestion arises why only a woman should su-ffer. There are social, financial and other as-pects immediately attached to the pregnancyof the woman and if pregnancy is unwanted,it can have serious repercussions. It undou-btedly affects her mental health. The lawmakers have taken care of helpless plight ofa woman and have enacted Section 3(2)-(b)(i) by incorporating the words ‘grave inju-ry to her mental health’. It is mandatory onthe registered medical practitioner while for-

ming opinion of necessity of termination ofpregnancy to take into account whether it isinjurious to her physical or mental health.While doing so, the woman’s actual or rea-sonable foreseeable environment may betaken into account.”

The High Court in this suo moto publicinterest litigation by a division bench consis-ting of two women judges, makes some path-breaking observations. Pointing out that wo-men do not take the decision to terminate apregnancy frivolously, the Court said: “Theseare decisions taken by responsible womenwho have few other options. They are wo-men who would ideally have preferred toprevent an unwanted pregnancy, but wereunable to do so. If a woman does not want tocontinue with the pregnancy, then forcingher to do so represents a violation of the wo-man's bodily integrity and aggravates hermental trauma which would be deleteriousto her mental health.”

While asserting a woman’s right to con-trol her own body and make motherhood ch-oices a part of her right to life and personalliberty under Article 21, the Court also said:“According to international human rightslaw, a person is vested with human rights on-ly at birth; an unborn foetus is not an entitywith human rights. The pregnancy takes pla-ce within the body of a woman and has pro-found effects on her health, mental well-bei-ng and life. Thus, how she wants to deal withthis pregnancy must be a decision she andshe alone can make.” This is a strongly pro-gressive counter to the views of “pro-life” ac-tivists in the US.

While Bhatia sees the additional require-ment in the Act for a doctor’s opinion in “go-od faith” as being at variance with the princi-ple that a woman can make this decision onher own, the Bombay High Court has chosento view the doctor’s opinion as an expert’s aidto the woman’s choice. Circumscribed by thecurrent law, this is a harmonious interpreta-tion of the law alongside a wider understan-ding of rights.

Meanwhile, female prisoners in Bombaymust be grateful that the bureaucratic proce-dure erroneously put in place has been recti-fied by the suo moto action of the BombayHigh Court.

“If a woman does not want to continue with thepregnancy, thenforcing her to doso represents aviolation of the

woman’s bodilyintegrity and

aggravates hermental trauma

which would bedeleterious to her

mental health.” —Bombay High Court

COURTS/ Mumbai/Female Prisoners

COURTS

The Punjab and Haryana High Courtdid not approve the Haryana gov-

ernment’s move to earmark 10 percentquota for the Economically BackwardPersons (EBP) in admissions to med-ical colleges in the state. It asked theManohar Lal Khattar government to putit on hold.

Incidentally, on September 8 theCourt itself had permitted the stategovernment to go ahead with the quotabut with a rider that it was not final asa clutch of writ petitions on the issue

were pending before it, awaiting a verdict.

It ruled that henceforth, no admis-sions be made under this criteria andthose done after the Court’s order werealso null and void.

The high court was convinced withthe argument put up by petitioners thatthe 10 percent quota under EBS hadincreased the total reservation grantedto 60 percent, thus exceeding the capof 50 percent mandated by theSupreme Court.

No quota under EBP

Can’t ban pellet guns in J&K

Considering the tense situation inthe Kashmir Valley engulfed by

violence, the Jammu and KashmirHigh Court refrained from issuing ablanket ban on the use of pelletguns by the security forces againststreet protestors. It felt that as anexpert committee set up by thehome ministry was already examin-ing other options, it would not beappropriate to order a ban before itgoes into the findings of the panel.

The Court also observed thatforce had to be used in rare andextreme situations to control vio-lence. It also turned down a plea for

an order to take legal action againstofficers linked to the use of pelletguns. The Court observed that therewas no evidence as of now thatneedless force had been used orstandard operating procedures violated.

It ruled that the people managingviolence and attacks on the groundwere the best judge to decide “whatkind of force” needed to be used ina given situation and place.

The Court’s reactions camewhile it was dealing with a PIL fromthe Jammu and Kashmir High CourtBar Association.

The Punjab and Haryana High Court,while lambasting the Haryana govern-

ment, observed that it could go to theSupreme Court for relief if it did not likethe High Court keeping a close watch on

its probe into the Jat quota violence inFebruary this year. The state governmenthad objected to the Court’s interest in the matter, saying “discussions”, “deli-berations” or even “criticism” may comein the way of justice.

The Court clarified that it was forcedto pitch in as “the state was not seriousto pursue the cases” and seemed infavor of those who had unleashed vio-

lence because of political interest. Therewas no way it would keep out of the mat-ter, the court averred. The state’s and theCourt’s response came in when the latterevinced interest that CBI take over all thecases, which are at present being investi-gated by the Haryana Police.

The CBI on its part objected to thecases coming under its belt since it did-n’t have the wherewithal to handle them.

Monitoring Jatcases will continue

50 October 15, 2016

Reveal details behind Narada sting

— Compiled by Prabir Biswas; Illustrations: UdayShankar

The Madras High Court did notpass any order on the plea of

senior advocate and wife of sen-ior Congress leader and centralminister P Chidambaram, NaliniChidambaram, that she bedebarred from appearing beforethe Enforcement Directorate inthe Saradha chit fund case.

The agency is probing intomoney laundering chargesagainst her and wanted to ques-tion her on `one crore she hadgot as professional fees in a TVchannel purchase deal.

The counsel for Nalini plead-ed that: a) as per Section 160CrPC, she should not be asked toappear in person before police-

men and any inquiry must takeplace at her home; b) there wasno reference of Nalini whatsoeverin the chargesheet filed by theCBI in the case; c) she hadshown the amount received inher income tax returns; d) shehad cooperated with ED duringearlier summons, but the ques-tions posed were all similar.

Based on these arguments,the counsel pleaded that Nalinibe exempted from appearanceafter yet another summon andwanted the Court to debar EDfrom initiating any action.

The Court asked ED not totake any action against Nalini “in the meantime”.

Nalini awaits verdict

The Calcutta High Court has askedNarada News CEO Mathew

Samuel to unravel in an affidavit theentire background behind the stingoperation that allegedly showed sev-eral Trinamool Congress leaders

accepting cash for doling out favors.The sting done by the website hadthreatened to rock the Trinamool gov-ernment just before the West Bengalassembly elections this year.

The High Court observed thatwhat was shown in the stingoperation was only a “cli-max”, and the entire storybehind it, including the personwho planned it, was yet to befathomed. It was not ready toaccept outright what wasshown in the video as cogniz-able evidence to start legalproceedings.

Samuel was asked topresent all details byNovember 4. Till then theinterim stay for Samuelagainst the probe initiated byKolkata Police will apply.

Instant messaging service WhatsAPP wasgiven the go-ahead by the Delhi High Court

to implement its “privacy policy” fromSeptember 25. However, according to theCourt’s diktat, WhatsAPP will be able toshare all personal information of its users—who do not quit by September 25—withFacebook only after that date.

The Court also made it clear that Whats-APP will have to delete all data of users, whoquit the service, before September 25. It wasreacting to a PIL that raised objections on thepolicy, citing privacy problems. However, theCourt refrained from examining the privacyissue, saying that it was yet to be legallydecided. It also pointed out that WhatsAPPhad clearly indicated that its “privacy policy”was subject to changes and users could notnow confine it to what was originally prom-ised. The center and TRAI were also asked toframe regulatory laws.

Go-ahead for WhatsApp


LEGAL EYE/ Search Engines

The apex court has ordered Google, Yahooand Microsoft to auto-block certain wordsrelated to pre-natal sex determinationadvertisements so that they comply withthe Pre-Conception and Pre-NatalDiagnostic Techniques Act, 1994By Nayantara Roy

BlockTheseWords! I

N a recent order, the SupremeCourt directed internet searchengines Google, Yahoo andMicrosoft to fully comply with theletter and spirit of the Pre-Conception and Pre-Natal Diag-nostic Techniques Act, 1994

(PCPNDT Act) which bans pre-natal sexdetermination. The order was passed follow-ing a PIL by Dr Sabu Mathew George, whosought that these search engines comply withthe Act.

Pre-natal sex determination has beenbanned in India in order to put an end to thepractice of female feticide, carried out bymany families with a patriarchal mindset. A2006 handbook of the Ministry of Healthand Family Welfare explained the back-ground to the PCPNDT Act and delves intothe patriarchal mores which see the male asthe progenitor of the line and therefore, apreferred child. Dowry constitutes anotherevil social custom which encourages families

52 October 15, 2016

Bhavana Gaur

with a patriarchal mindset to treat daughtersas unwanted. The handbook said that oftenin such cases, women are not even allowedcontrol over their own bodies. The inferenceis that some of them may even be unwillingparticipants in the process.

FEMALE FETICIDEThe handbook said that prior to the develop-ment of technology in the 1990s, femaleinfanticide was an evil practice that some-times took place. After the development oftechnology which could tell parents the sex ofthe unborn child, there was a move towardsfemale feticide.

The handbook said: “Female infanticidenow in most places has been replaced byfemale foeticide and in fact sadly, femalefoeticide has made inroads into areas wheretraditionally there were no instances offemale infanticide. The moral guilt attachedto elimination of the girl child after she isborn is not felt equally if the child is eliminat-ed while still in the womb.”

These practices have led to skewed genderratios in some parts of the country. Thehandbook said that “things have come tosuch a pass that in some villages of Madhya

Pradesh, no marriages have taken place foryears because there are no girls and the boysare married by buying girls from faraway vil-lages of Bihar for paltry sums. In one districtin west Rajasthan, in 1997, the first ‘baraat’was received after 110 years and in anotherclan, there are only two female surviving chil-dren compared to 400 male children. Insome cases parents are prepared to acceptthe daughter if she happens to be the firstchild but thereafter they want only sons.”

Media reports have said that the sex ratiohas become worse in India. One report

Some effectivemethod will haveto be devisedwhereby gen-uine researchinto the issue ofpre-natal sexdetermination isnot blocked….George said hispetition was notagainst contentas such butagainst advertisments.

THE PRESSURE TOREPRODUCE BOYSA patriarchal mindset isthe root cause of femalefeticide and many atimes mothers-to-be areunwilling participants inthe process


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said: “Nationwide, the number of girls bornper 1,000 boys has dropped from 909 during2011-13 to 906 for the 2012-14 period, a gov-ernment survey has found. But, the fall issteepest in Delhi—from 887 to 876. UttarPradesh is next. The findings of the sampleregistration system (SRS) 2014, released lastweek, indicate that sex selection isn’t limitedto the Hindi heartland but is spreading tostates such as Tamil Nadu, where the numberdropped to 921 from 927.”

Improved pre-natal diagnostic techniqueslike amniocentesis, chorion villius biopsy andultrasonogrophy were meant to detect the

health of the fetus. Instead, they are beingmisused to abort female fetuses. What isworse is that many medical practitionersfound that aiding prospective parents in sexselection was a lucrative business and active-ly assisted in determining the gender of thefetus to enable abortion if it turned out to bea girl child.

INTRODUCING CHECKSThe health ministry handbook said: “Apartfrom the technique and timing varyingbetween female infanticide and female foeti-cide, for female foeticide the assistance of athird party namely a medical practitioner isrequired to determine the sex of the foetus.This intervention could have been a greatdeterrent in effectively countering femalefoeticide, instead the continuous demandand easy money has led to the medical prac-titioners colluding with parents and relativesto do sex determination. As a consequencesex determination centres have mushroomedin all parts of the country including small dis-tricts and villages.”

In order to stop this practice, parliamentenacted the Pre-Natal Diagnostic Techniques(Regulation and Prevention of Misuse) Acton September 20, 1994. When this Act wasfound wanting, it was replaced by the currentPre-Conception and Pre-Natal DiagnosticTechniques Act, 1994.

Former Chairperson of the NationalCommission for Protection for Child RightsKushal Singh said that such laws are neededbecause of discrimination against the girlchild. She makes it clear that she is notagainst abortion when it takes place for rea-sons of the mother’s health or other com-pelling reasons. It is when abortion takesplace only because the family does notwant a child of a particular gender that itshould be banned.

Dr Anita Kaul of Apollo Hospital’s Centrefor Fetal Medicine in Delhi said she doesn’toften receive inquiries about the gender ofthe fetus. Once in a while a family member,usually a mother-in-law, asks what the gen-der of the fetus is. Such attempts are quelledas soon as she tells them that it is illegalfor the doctor to tell them as well as for themto ask.

List of banned words complied by the government with regard topre-natal sex determination:

Gender selection, Gender selection Kits, Gender selection service,Gender selection clinics, Gender selection technique, Prenatal sex

selection, Prenatal sex selection kits, Prenatal sex selection service,Prenatal sex selection clinics, Prenatal sex selection technique, Prenatal sexdetermination, Prenatal sex determination kits, Prenatal sex determinationservice, Prenatal sex determination clinics, prenatal sex determination tech-nique, Baby gender selection, Baby gender selection kits, Baby genderselection service, Baby gender selection clinics, Baby gender selectiontechnique, Prenatal diagnostic tests for selection of sex before or after con-ception, Prenatal conception test, Prenatal diagnostic, Prenatal foetoscopyfor sex selection, Prenatal ultrasonography for sex selection, Sex selectionprocedure, Sex selection technique, Sex selection test, Sex selectionadministration, Sex selection prescription, Sex selection services, Sexselection management, Sex selection process, Sex selection conduct,Prenatal image scanning for sex selection, Prenatal diagnostic procedurefor sex selection, Sex determination using scanner, Sex determination usingmachines, Sex determination using equipment, Scientific sex determinationand sex selection, Gender test, Early Gender Test.

Banned words

54 October 15, 2016


22. Prohibition of advertisement relatingto pre-natal determination of sex andpunishment for contravention.- 1. No per-son, organization, Genetic CounsellingCentre, Genetic Laboratory or GeneticClinic, including clinic, laboratory or cen-tre having ultrasound machine or imag-ing machine or scanner or any othertechnology capable of undertaking deter-mination of sex of foetus or sex selection

shall issue, publish, distribute, communi-cate or cause to be issued, published,distributed or communicated any adver-tisement, in any form, including internet,regarding facilities of pre-natal determi-nation of sex or sex selection before con-ception available at such centre, labora-tory, clinic or at any other place. 2. Noperson or organization including GeneticCounselling Centre, Genetic Laboratoryor Genetic Clinic shall issue, publish, dis-tribute, communicate or cause to beissued, published, distributed or commu-nicated any advertisement in any mannerregarding pre-natal determination or pre-conception selection of sex by any

means whatsoever, scientific or other-wise. 3. Any person who contravenes theprovisions of sub-section (1) or sub-sec-tion (2) shall be punishable with impris-onment for a term which may extend tothree years and with fine which mayextend to ten thousand rupees.Explanation.—For the purposes of thissection, “advertisement” includes anynotice, circular, label, wrapper or anyother document including advertisementthrough internet or any other media inelectronic or print form and also includesany visible representation made bymeans of any hoarding, wall-painting,signal, light, sound, smoke or gas.

out of the page. They also said that the homepage already prevents links to such material;and that the message has been placed on theterms of the service page.

COMMERCIAL ADVERTISEMENTSThe petitioner’s counsel objected to the nar-row interpretation of Section 22 of the PCP-NDT Act by the companies. Section 22 bansadvertisements relating to pre-natal genderselection. The companies said that the sec-tion relates only to commercial advertise-ments for pre-natal sex determination

KEY WORDSThe PIL by Dr George was meant to ensurethat agencies do not advertise their pre-natalsex determination services over the internet.The apex court has sought that “auto-block”should operate instantly on any key wordsthat indicate information relating to pre-natal sex determination advertisements orany material banned under the PCPNDTAct. The government had compiled a list ofwords that should be auto-blocked, with theproviso that the list can be updated.

In response to a query by the Court as towhether the updating should be done by thecompanies or the government, the responseswere varied. However, it was generally agreedthat while the updated words should be pro-vided by the government, the search enginecompanies would reserve the right to reviewthe words, and would also update the list onthe basis of reported violations.

On the issue that a combination of suchwords might be used ingeniously by a persontrying to circumvent the auto block, the com-panies said that they would block these com-binations when they were brought to theirnotice. However, the Court felt that thisshould be an automatic feature, alreadyincorporated in the auto-block system.

The companies agreed to publish a “warn-ing message” in the space where the keywords are fed in, but they said they could notput a message on their respective home pagesas it would interfere with the design and lay-

WAITING FORGODOT?Skewed gender ratioshave led to buying of“brides” from Bihar forboys in MadhyaPradesh and in 1997,west Rajasthan receivedits first “baraat” after110 years

What Section 22 of the PCPNDTAct says:

Act on this!


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and not to other forms of search content suchas images, search results, videos and blogsand “search function that are algorithmical-ly/organically populated”.

The order of the Court says that thecounsel for the petitioner “… has pointed outfrom the affidavit filed by the petitioner thatthere are agencies which are still publishingadvertisements from which it can be deci-phered about the gender of the foetus.Learned counsel would submit that Section22 of the Act has to be read along with theother provisions of the Act and it should beconferred an expansive meaning and shouldnot be narrowly construed as has been doneby the respondents”.

Speaking to India Legal, the petitioner,Sabu George, said that it took eight years forthe case to reach this stage. Advertising wasdone through videos and images which wererelated to search suggestions. So the compa-nies must work out a way to prevent this.

PAST CASESGeorge said that this was not the first timethat Google and Yahoo had come up against

the laws of a country. In 2011, Google enteredinto a Non Prosecution Agreement (NPA)with the United States Attorney’s Office forthe District of Rhode Island.

According to an article by the US Att-orney for the District of Rhode Island, PeterNeronha: “Major Achievements in the Cou-rtroom: United States v. Google”, in Offices ofthe United States Attorneys published by theUS Department of Justice, Google agreed “toforfeit $500 million to the United States forallowing Canadian online pharmacies to tar-get U.S. consumers with prescription drugadvertisements.”

Earlier in 2000, Yahoo was sued forallowing internet sales of Nazi memorabiliain France, which is against the French crimi-nal code. In the LICRA v. Yahoo! case, Yahoolost the case in France and later even when ittook the case to US courts.

According to newspaper reports, earlier inthe PCPNDT related case, the search enginecompanies had said that a total block on key-words might affect research results. How-ever, they were ordered to comply with thePCPNDT Act.

Some effective method will have to bedevised whereby genuine research into theissue of pre-natal sex determination is notblocked. To use an example, if the searchwords “prenatal diagnostic”, which are in thelist of banned keywords (see box) are auto-blocked, even the text of the law itself or theorders of the Supreme Court could becomeinaccessible to the public.

But George said his petition was notagainst content as such but against advertise-ments. The search engine companies, there-fore, need to devise a way to block advertise-ments and information which aid female feti-cide while permitting other content.

BUSINESS BREWHOUSEIn the past, Google and

Yahoo have come upagainst the laws of the

country in the US and alsoin France

IL

The apex court ordered that “auto-block”operate instantly on key words relating to

pre-natal sex determination advertise-ments banned under the PCPNDT Act.

56 October 15, 2016



HEALTH activists and thosedemanding protection of thegirl child are agreed that themalaise of sex selection testsneeds to be checked if

India’s skewed sex ratio is to be corrected. Sothe threatened agitation by medical profes-sionals against the implementation of the sexselection law—Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act1994—is a retrograde one.

Radiologists are up in arms against the Act which restrains and criminalizes the misuse of ultrasound machines for sex determinationtests. They are seeking amendments to soften the law By Dinesh C Sharma

Unsound Demands Demanding changes in the law, a nation-

wide strike was launched by the IndianRadiological and Imaging Association(IRIA) from September 1 but they havedeferred it for three months. They also planto strike work if their demands are not met.

The threatened agitation seems unfairwhen we take cognizance of facts on theground. The latest census data indicate thatIndia’s sex ratio at birth (SRB) has fallenfrom 909 live female births for every

RADIOLOGISTSGROUSE

These professionalsare demandingchanges in the

PCPNDT law

LEGAL EYE/Sex Selection/ PCPNDT Act 1994

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58 October 15, 2016

1,000 male births in 2011-13 to 906 in 2012-14. As per the 2011 Census, child sex ratio (0-6 years) had declined from 927 females perthousand males in 2001 to 919 females perthousand males in 2011.

SKEWED RATIOThe real picture about child sex ratio (CSR)will emerge only in Census 2021, but fallingSRB is an indication that it could be worsethan feared. Generally, SRB is in favor of boysand the difference is only marginal. But inIndia, the gap is much higher than in theWest. A falling SRB and CSR indicate contin-uance of female feticide or selective abortionafter sex selection and also infanticide aftergirls are born. Lower SRB is a definite indica-tion of the rising trend of sex selection usingultrasound scanning.

The PCPNDT Act 1994 came into beingfollowing a public interest litigation and ad-

vocacy by health activists. The objective ofthe law was to arrest gender-based sex selec-tion through regulation of the use of ultra-sound machines. But the law remained onpaper for many years as rules and regula-tions, as well as the mechanism necessary forits implementation were lacking. Mean-while, the use of ultrasound proliferated andspread to rural areas.

It was only after the intervention of theSupreme Court in 2001 that measures andnecessary structures for the implementationof the PCPNDT Act were initiated, and regis-tration of ultrasound centers was started.The Central Supervisory Board (CSB), a mo-nitoring panel, was established in the healthministry and appropriate authorities—asmandated in the law—were notified in vari-ous states.

Still, health activists say that the imple-mentation of the Act is tardy and convictionsfor violations are rare. The Act has beenimplemented well in Maharashtra where vio-lators have been convicted. Jail terms wereawarded to two doctors from Pune in Sep-tember. In Rajasthan, ultrasound machinesmisused for sex selection have been sealed.

AMENDMENTS DEMANDEDThe Indian Medical Association (IMA) andIRIA have been demanding amendments tothe rules and regulations under the law, say-ing that the doctors are being punished evenfor minor errors which don’t amount to actu-al sex selection. “Clerical errors in Form F,not wearing of apron, non-display of noticeboard, not keeping a handbook on the PCPNDT Act should not be equated with sexdetermination and criminal offense,” said DrKK Aggarwal, secretary general of IMA. TheAssociation has also demanded that punish-ment under the Act should be graded in linewith the offence.

In addition, the demand is that ultra-sound machines should not be sealed andmedical registration of radiologists shouldnot be cancelled or suspended for “minorclerical errors”. The IMA also wants stan-dardized implementation of PCPNDT Actthroughout the country. Also non-pelvicultrasonologists should be kept out ofpurview of the Act if they give an undertak-

FOR GENDER EQUALITYSome feel an amendmentto the PCPNDT Act 1994

will throw a spanner in the Beti Bachao Beti

Padhao program

By asking to do away with paper work,medical bodies are actually seeking to

do away with crucial evidence whichhelps in conviction of violators.

Anil Shakya

LEGAL EYE/Sex Selection/ PCPNDT Act 1994


ing that they are not doing any antenatalwork. The Association alleges that appropri-ate authorities in many states are harassingradiologists for minor mistakes, which arebeing equated with sex determination, addedDr Jignesh Thakker, National Coordinatorfor PNDT at IRIA.

Dr Sabu George, whose relentless acti-vism led to the passage of the Act and its sub-sequent implementation, however, feels thatmedical lobbies want to stall implementationof the law. “Wherever the law has been imple-mented, cases booked and doctors convicted,it has had a direct impact on sex ratio in thatregion. Strict implementation of the law isthe only ray of hope for the unborn girl child,”he said. By pointing out to the so-called cler-ical errors and asking for doing away withpaper work, medical bodies are actually seek-ing to do away with crucial evidence whichhelps in conviction of violators, he explained.

“An amendment to the law at this stagewill not only weaken the PCPNDT Act butalso defeat the purpose of the government’sflagship program—Beti Bachao Beti Padhao(BBBP) that was launched in January 2015.The proposed amendments would allow tensof thousands of medical professionals to con-tinue profiteering from gender-based sexselection and escape criminal prosecution,” ajoint statement from health activists haswarned. BBBP action plan mentions strictimplementation of the Act as one of the keypoints of action in all the districts withskewed CSR.

Another contentious issue is the notifica-tion issued in June 2012 restricting radiolo-gists from visiting more than two ultrasoundcenters in a district. Litigation is also on insome high courts about qualifications ofultrasonologists as laid down in the Act. Thepetitioners contend that the six-monthstraining rule is beyond the scope of the PCPNDT Act and is inconsistent with theMCI Act, 1956 and Regulations.

The Delhi High Court in February 2016had made it clear that Rule 3(3)(1)(b) ofPNDT Rules which requires a person desi-rous of setting up a genetic clinic/ultrasoundclinic/imaging center to undergo six monthstraining imparted in the manner prescribedin the Act was ultra vires.

An expert committee was formed by theCSB to propose amendments to the Act andmedical bodies were assured that their griev-ances would be redressed.

While the fine for indulging/assisting/aiding in sex determination is proposed to beincreased, the amendments are soft on otherviolations as demanded by radiologists. Thefine is proposed to be increased to Rs 50,000and conviction will be a minimum of threeyears. But those not abiding by certain pre-scribed norms (such as not wearing an apronor keeping a copy of the Act), will be finedonly Rs 1,000 and Rs 500 per day in case ofrepeat violations.

The Act lays certain conditions as well asprohibitions on the sale of ultrasoundmachines. It is proposed to extend these con-ditions to any kind of transfer which may ormay not constitute a sale.

In order to make manufacturers of ultra-sound machines accountable, it is proposedto bring them under separate entities in theAct. They will be liable to a punishment ofnot less than three years and a fine not lessthan Rs 25 lakh if they refuse or fail to pro-vide details about sale of ultrasoundmachines to District Appropriate Authorityon a quarterly basis.

The ball is now in the court of theMinistry of Health and Family Welfare. IL

“Clerical errors inForm F, not wearing of apron,non-display ofnotice board, notkeeping a handbook on thePCPNDT Actshould not beequated with sexdetermination andcriminal offense.”

—Dr KK Aggarwal,secretary general of the

Indian MedicalAssociation

UNI

THE heinous gang rapeand murder of a 14-year-old girl in Kopardi villagein Ahmednagar on July 13has spurred a silent revo-lution in Maharashtra andrevealed caste and social

fault lines, making political parties restless.Never before have so many Marathas comeout in silent protests demanding change.

On July 13, the girl was returning from

STATES/Maharashtra/Silent Protests

The brutal gang rape and murder of a girl has led to protests across the stateand a demand for reservations and amendment of the Prevention of AtrocitiesAct. This will culminate in Mumbai by October-endBy Neeta Kolhatkar in Mumbai

Uprising of the

grandparents’ house when the crime wasperpetrated. Three men allegedly inflictedinjuries all over her body and broke herlimbs before throttling her. According to thepolice, the post-mortem report said her“hair had been pulled out, her hands haddislocated from the shoulders and her teethsmashed”. Her body was found a few yardsfrom the house. While the girl's family hasnamed these three as the accused, the policehave arrested only one person.

HEINOUSCRIME

Silent protestsin Maharashtraover the killing

of a 14-year-oldgirl in Kopardi

village inAhmednagar

60 October 15, 2016

Later, NCP president Sharad Pawar deman-ded abolition of the Prevention of Atro-cities Act for various reasons.

ATROCITIES ACTAs per the state records, cases under thePrevention of Atrocities Act have fallen inthe last five years — from 319 in 2010 to 290in 2015. In 2005, nearly 30 percent of allcrimes committed against Dalits werebooked under the Atrocities Act.

MarathasBut what has given caste and political

overtones to this crime is that she was aMaratha and the three accused were Dalits.After the murder, Dalit families along withother villagers wrote a letter to the sarpanchand demanded that the accused be hangedto death.

ISSUE POLITICIZEDSince the incident, leaders of all parties havetried to politicize the issue. Firstly, Dalitleaders such as Ramdas Athawale, a Unionminister, Prakash Ambedkar, grandson ofDr BR Ambedkar, and Jogendra Kawade, anMLA, were prevented from going to the vil-lage. However, Dr Bhalchandra Mungekar,Rajya Sabha MP and a Dalit leader, threat-ened to go on fast if he was prevented. “Thepolice tried to prevent me. I said either pro-vide security to me, arrest me or I will sit ona fast,” Mungekar told India Legal. He final-ly visited the village and thanked both com-munities in the village for dealing with thissituation well.

“I was shocked by this incident. ButI would like to point out that in theTanta Mukti Samiti (village dispute commit-tee) in Kopardi, Dalit families signed on astamp paper saying they want the accusedhanged. Their unity is exemplary,” saidMungekar. He added: “Despite Marathasbeing in the majority in Kopardi, they didnot blame the entire Dalit community forthis shocking incident.”

This issue was soon politicized. Oppo-sition parties like the Congress and the NCPinitially demanded the resignation of ChiefMinister Devendra Fadnavis. In the mon-soon session of the assembly, Fadnavis toldthe house that the government had appoint-ed Ujjwal Nikam as the public prosecutor.The government also announced that `5lakh would be given to the victim's family.

PLAYING POLITICS(Clockwise from aboveleft) Union minister andgrandson of Dr BRAmbedkar, PrakashAmbedkar; MLAJogendra Kawade and Dalit leader, Ramdas Athawale wereprevented from going toKopardi village


CM assures MarathasIn the wake of the wide-spread Maratha agitation,Maharashtra Chief MinisterDevendra Fadnavis hasstated that his governmentis committed to reserva-tions for Marathas in educa-tion and jobs. However, headded that the final deci-sion lies with the judiciary.

Maratha leaders say that due to theAtrocities Act under which Marathas areoften booked as culprits, and due to reserva-tion, the Marathas have got completely iso-lated in society today.

Marathas today comprise 32 percent ofthe population of the state and are a strongvote bank. But 35 percent of these Marathasare laborers and workers. Among the sui-cides of farmers in Marathwada, a majoritywere Marathas. But they have always beenaccused of inflicting abuse on Dalits, a

stereotype casting that was recently project-ed on the silver screen in the Maratha film,Sairat. Sairat shows a fisherman’s son and alocal politician's daughter falling in loveagainst caste norms. The boy is killed andthe Marathas are shown as villains.

Another allegation against the Marathasis that most of the chief ministers ofMaharashtra belonged to this caste. PravinGaikwad, a Maratha leader, said: “Our lead-ers have let us down. Pawar renamedAurangabad Maratha University as DrBabasaheb Ambedkar. The Mandal Commi-ssion also ignored us despite 35 percent ofour people being uneducated and poor.”

Six chief ministers from this communityand many ministers are known to havestarted educational institutions and thesehave become commercial enterprises whichare unaffordable to the poor of this commu-nity. “They set up educational empires butdeny admissions to the poor caste fellowsand vulgarize their power,” assertedMungekar. “This has created frustration,anger and disappointment.”

DALIT UNITYHowever, Dalit leaders have held the fabricof their society mostly due to devotion to DrAmbedkar. Maratha leaders, on the other

TYPECASTING LIFE(L-R) A poster and a still

from the Maratha film Sairat,which shows

caste stereotypes

“DespiteMarathas being

in the majority inKopardi, they did not blame the entire Dalitcommunity forthis shocking

incident.”—Dr Bhalchandra

Mungekar, Rajya Sabha MP and Dalit leader

62 October 15, 2016

STATES/Maharashtra/Silent Protests

hand, have misappropriated power and areindifferent to their community.

“Marathas are isolated today and weblame our own leaders for our condition.The leaders of OBCs and Schedule Casteslike Gopinath Munde and Chhagan Bhujbalmade their communities cohesive andensured they got protection. Our leaderspromoted dynasty rule and the communitycould not reap any benefits,” said Gaikwad.

When the Kopardi incident occurred, theMarathas circulated a message on Whats-App asking their community: “Do you wantan opportunity to study, do you want towork and do you want protection? If you area Maratha then join the morcha.” The resultwas a social revolution with lakhs joining inevery day.

Gaikwad said that social media had beenthe true connector in spreading their mes-sage. They have three demands: Death sen-tence to the accused in the Kopardi incident,reservation for Marathas and amending theAtrocities Act. “The social fabric has beendestroyed due to this Act with false casesregistered. In most cases, there is no evi-dence and the accused are released. By then,the system has destroyed the individual andtheir families. Now in this case, why are theaccused not being tried under the AtrocitiesAct?” asked Gaikwad.

As these silent protests spread acrossMaharashtra, no one is prepared for thesocial aftermath. Many leaders likeSambhaji Raje, Udayan Raje Bhosale,Purshottam Khedekar and Vinayak Meteand leaders of the Sambhaji Brigade (astrong Maratha outfit) tried to take over theleadership but were shown the door.

SOCIAL CHURNINGThe politicians are in a quandary as to whatstep to take now. “These rallies are beingorganized without leaders and are silent.This is a new turning in Maharashtra poli-tics and it has taken all politicians by sur-prise. More so, prominent leaders are beingpublicly humiliated by being made to sit onthe floor while novices have taken the stage,”said Pratap Asbe, a political analyst.

These rallies, he explained, were success-ful because of the intense feeling of isolation

among Marathas. “Even Dalits thinkers andleaders need to understand that they have tomaintain a dialogue. The fact is that if theyparticipate, they too will be included inthese protests,” said Asbe.

However, the absence of a dialoguebetween Marathas and other castes or coun-ter rallies will only widen the social gap. Thefact is that the government has failed toassess the situation. The new Maratha lead-ers are clear that their protests will continueacross the state and finally culminate inMumbai by October-end. “This is the lullbefore the storm. We will get justice for ourcommunity,” said Gaikwad.

This uprising of the Marathas is akin tothat of the Patels in Gujarat as they demandmore reservations. While that agitation hasspiralled out of control for the BJP, this oneis yet to be nipped in the bud. IL

MARATHAS VS DALITS(Anti-clockwise from left)Chief Minister DevendraFadnavis was asked toresign by the opposition; NCP president SharadPawar demanded the abolition of the Preventionof Atrocities Act; thelate Gopinath Munde was credited with ensuringthe well-being of OBCsand SCs


MEDICINE/Defining End of Life

Death in India is defined by two Acts—one which deals with circulatory death

and the other with brain stem death.But experts are now pitching for a

common law where both definitions areclearly defined to remove all confusion

By Shobha John

IN India, over a lakh die of brainstem death annually. At any giventime, every major city will have 8-10 brain deaths in various ICUs.Some 4-6 percent of all hospitaldeaths are due to brain deaths. Insuch a scenario, it is essential that

there is clarity over what it means to be braindead and to have laws that are crystal clear inthis regard. Unfortunately, awareness aboutbrain death is very low in India.

When Death Comes Calling…

64 October 15, 2016

Anthony Lawrence

It was in 1994 that India passedthe Transplantation of HumanOrgans (THO) Act which legalizedbrain stem death. In 1995, THOrules were laid down whichdescribed the procedure to be fol-lowed for brain death certification.Yet, brain death is not promptlydeclared in India due to lack ofawareness and obfuscation of thelegal procedures. There is reluc-tance even on the part of doctors topronounce a patient brain dead.

Natural death is akin to the heartstopping irreversibly, leading tostoppage in blood circulation anddeath. In brain death, there is neu-rological death of the brain, leadingto death of the rest of the body. Asfar as brain death is concerned, inthe US, a person is certified as deadif there is complete death of the brain, in theUK, if there is brain stem death and in Australia, if it includes circulatory andbrain death.

A recent convention on medicine and laworganized by the Mumbai-based Institute ofMedicine and Law discussed this issue. Itbrought together doctors, lawyers, editors ofmedical and law journals, academicians, rep-resentatives from hospitals and policymakersto deliberate over legal issues relating tomedicine, including brain stem deaths.

DEATH’S DEFINITIONSAs far as the law is concerned, there are twodefinitions of death—one in the Registrationof Births and Deaths Act and the other, inTHOA. The former defines “death” as “thepermanent disappearance of all evidence oflife at any time after live-birth has takenplace”. THOA, on the other hand, defines a“deceased person” as one “in whom perma-nent disappearance of all evidence of lifeoccurs, by reason of brain stem death or in acardiopulmonary sense at any time after livebirth has taken place”. Confusing?

Currently, brain stem death is onlydefined in the context of organ donation.Both these definitions exclude the other.However, a brain stem death patient maytake two hours to 10 days to get cardio-respi-

ratory death. Experts now want just one def-inition of death instead of two and a uniformdeath certificate that also includes brain stemdeath. Therefore, they want an amendmentin THOA.

Dr Sunil Shroff, managing trustee ofMohan Foundation, a Chennai-based NGOwhich is in the forefront of organ donation,told India Legal that his Foundation hadwritten to the health ministry and the RajyaSabha Standing Committee in 2010 foramendments in THOA so that there was onedefinition of death. “We had also put it on theagenda for discussion at a National LawCommission meeting. With two definitions,there is difficulty in withdrawing support of abrain dead person unless it is for organ dona-tion. This results in unnecessary hospitalstay, escalating bills and needless use of theventilator when it can be put to better use,”he said.

Mahendra Bajpai, advocate, said: “Weneed a special law that defines death in India.The definitions in the Registration of Birthsand Deaths Act and THOA take us nowhereand we want brain stem death to be factoredin too. Certification of brain stem deaths isusually done only for organ transplants but ifa brain dead person doesn’t want his organsharvested, he can be taken home if there is alaw in this regard. Why hook him to the

SIMPLICITY IS KEYA uniform death certificatewhich includes circulatoryand brain stem deaths willmake it easier for familiesand hospitals as well asthose in need of organs


UNI

ventilator, a scarce resource, unnecessarilywhen it can be used for those wanting todonate organs.”

NEW CONCEPTTo go back in time, before 1960, death wasdefined as the complete and irreversible ces-sation of spontaneous cardiac and respirato-ry functions. However, with the advance ofmedicine and ICUs, ventilators allowed tem-porary cardiopulmonary function in theabsence of brain function, and the concept ofbrain-stem death evolved. But it is a relative-ly new concept in India and relatives still findit hard to believe that the patient is dead(brain dead) when his heart is still beating.

Often, there is confusion about whatexactly constitutes brain stem death? Can aloved one who is brain dead suddenly comeawake considering he is breathing normally?Should he be removed from the ventilator?Are doctors declaring him brain dead so as toharvest his organs? These are the many ques-tions spawning in the minds of people.

Though brain death is the permanent ces-

sation of all functions of the brain, individualorgans may function. But there is lack of res-piratory drive, consciousness and cognition,confirming that death is irreversible.Incidentally, once a person is brain dead,almost 37 organs and tissues can be harvested, including heart, kidneys, liver,lungs and pancreas.

RELUCTANT DOCTORSAnother issue regarding brain death is thereluctance of doctors to identify and certifysuch a patient. In spite of medical and legalacceptance globally, brain death is notpromptly declared and many such patientsare kept on life support needlessly. Dr HarshJauhari, chairman, renal transplant surgery,Ganga Ram Hospital and advisor, organtransplant to the Ministry of Health, said: “Inthe public’s mind, death is linked to organdonation. So they feel doctors are declaring aperson brain dead so that the organs can beharvested. We want people to understandthat both circulatory death and brain deathmean the same thing—the person is dead. So

“With two definitions ofdeath, there is difficulty inwithdrawing support of abrain dead person unless itis for organ donation.”

— Dr Sunil Shroff, managingtrustee of Mohan Foundation

“In the public’s mind, deathis linked to organ donation.So they feel doctors declarea person brain dead soorgans can be harvested.”

—Dr Harsh Jauhari, Sir Ganga Ram Hospital

“A panel of four is needed todeclare a person brain dead.We want to simplify this sothat even an MBBS doctorcan certify brain death.”

—Dr Rahul Pandit, Fortis Mumbai

66 October 15, 2016

MEDICINE/Defining End of Life

we want one certificate to declare a persondead, be it due to circulatory or brain death.”It was suggested that the public and doctorsbe educated that a dead body can have abeating heart.

In India, he said, people don’t accept theinevitability of death. Also, a person in comaand a brain dead person are two differentthings. “A person can be comatose due tobeing drugged, tumors, accidents, etc, andcan come out of it, whereas a brain dead per-son won’t,” he added.

Dr Rahul Pandit, head of Intensive Care,Fortis, Muland, Mumbai, and chairman,Indian Society of Critical Medicine, said thatironically, under the present Birth andRegistration Act, one can declare a personcirculatory dead but not brain dead. “Wewant to remove such anomalies. Also, underTHOA, a panel of four doctors is needed todeclare a person brain dead. We want to sim-plify this so that even an MBBS doctor withsome experience can examine, identify andcertify brain death.” The panel includes thedoctor in charge of the patient, the doctor incharge of the hospital where he was treated,an independent specialist of unspecified spe-cialty and a neurologist or a neurosurgeon.

While some states such as Tamil Nadumake identification and certification manda-tory in government hospitals, it is yet to beimplemented in other states. Certificationwill also make it easier for patients who don’twant to donate organs to be removed fromthe ventilator so that last rites can be done.

ORGAN DONATIONAnother suggestion was to amend THOA soas to include “Donation after CirculatoryDeath” (DCD). This was a way to improveorgan donation which is woefully inadequatein India.

In DCD, death is induced when there isfutility of care. Abroad, there are clear laws inthis regard, and if the families agree, the ven-tilator is willfully disconnected. In India,DCD is possible only under two circum-stances—when there is a brain stem deathbut the family wishes to donate only aftercardiac arrest. Second, if a donor has beengiven brain stem death certification and inthe meantime, develops cardiac arrest. But

active withdrawalof the ventilator is atough decision totake and is notprevalent in India.

It was also sug-gested that familiesof a brain dead per-son should beshown the angio -gram / CT scan orisotope brain scansso as to show thema visual imagedepicting “no brainactivity”. It wouldmake them morewilling to removethe patient fromthe ventilator.

Another sugges-tion was that doc-tors must wait for10 minutes afterthe absence of cir-culatory activity todeclare a persondead. There arecurrently no guidelines on how much time adoctor should wait after the heart stops beat-ing to retrieve organs. Different countrieshave prescribed different timings.

Better awareness of these issues wouldalso help organ donation in our country, saidDr Shroff. “India is still to achieve the magi-cal figure of one donation per million popula-tion. In the US, it is 22 per million, whileSpain does about 35 per million. Tamil Nadu,Andhra Pradesh, Kerala, Maharashtra,Gujarat and Karnataka are quite active inorgan donation. Tamil Nadu’s organ dona-tion rate is 10 times the national average.” DrJohri said that Tamil Nadu has a culture ofdonation and even the government is veryproactive, leading to registration of brainstem deaths. It is time that things are madeeasier for all stakeholders who handledeaths—the patient foremost, his relativesand even hospitals.

As Isaac Asimov, the famous Americanauthor, said: “Life is pleasant. Death is peace-ful. It’s the transition that’s troublesome.”


IL

Anthony Lawrence

68 October 15, 2016

One of Britain’s leadinglegal firms, Freshfields

Bruckhaus Deringer hasannounced that it would notbegin communication with“Dear Sir or Madam.” In its USoffice, all correspondence—both internally and to clients—will start with “Dear Ladies andGentlemen.” For correspon-

dence across the world, it willuse equivalents in Cantonese,Mandarin and European lan-guages. This decision makesFreshfields UKs first legal prac-tice to go gender-neutral.Another major law firm,Linklaters might soon ban theuse of “Dear Sirs” from all itslegal communications.

Days over for “Dear Sirs”

INTERNATIONAL BRIEFS

Poland’s decision to criminalizenearly all abortions has

women’s groups and human rightscampaigners in Poland see red.

Thousands protested against theproposed law that has the backingof the church and will make termi-nation of a pregnancy possible onlyto save a woman’s life. If passed,the legislation would mean jail sen-tences of up to five years for caus-ing “the death of a conceivedchild”. It would apply both towomen seeking abortions and doc-tors and health professional carry-ing them out.

Australia is considering changingits law to prevent asylum seekers

from offshore Australian destinationsfrom visiting the country or gainingcitizenship. It is also trying to moverefugees out of its camps in Nauruand Papua New Guinea.

Australia’s Channel 7 has report-ed that the ban can also apply topeople who become citizens ofanother country after having beenaccepted as refugees. In the past,New Zealand had accepted some ofthe people kept in waiting byAustralia, but they were allowed tomove to Australia later on.

Troubles down under

An 18-year-oldAustrian girl has

sued her parents forallegedly postingaround 500 childhoodpictures of hers ontheir Facebook pagesince 2009 without herconsent. She was driv-en to sue them as herparents did not deleteher pictures despiterepeated requests.

Seven-hundred FBfriends of theirs haveaccess to these pic-

tures, which includeshots of nappy chang-ing and potty-trainingmoments.

In Austria, privacylaws concerning socialmedia are not as strictas in France, wherepublishing and distrib-uting images of anoth-er person, including ofone’s own kids, with-out consent can landone in prison andincur a fine up to€45,000.

When Apple refused to assist theAmerican government in

unlocking Syed Rizwan Farook’sencrypted iPhone, the FederalBureau of Investigation used a third-party tool to overcome the phone’ssecurity measures. What hadsparked controversy over digital pri-vacy rights has now turned into alegal quest for USA Today, theAssociated Press and Vice Media asthey have filed a federal complaint

against the FBI wishing to learn howthe government overcame theencryption on Farook’s iPhone, thattoo without Apple’s help, as wasalleged. Farook and his wife hadcarried out the mass shooting inSan Bernardino, California in 2015.

FBI’s incognito mode

—Compiled by Shailaja Paramathma

Protest against anti-abortion law

Careful with what you share

NO HOLDS

BARRED

NDIA EGAL EEL September 15, 2016 `100

www.indialegalonline.comNI

Tortuous Road to JusticeTTTTortuTortu

Chief Justice TS Thakur

22 lakh cases pending ...and still counting By Ramesh Menon

20

Judges should take less holidays By Justice K Chandru

Ajith Pillai Taming the Algo Trade 48

Shobha John Tax on Fat 54Seema Guha Balochistan Missile 70

Nayantara Roy Judiciary’s Helping Hand 36

NDIA EGAL EEELAugust 31, 2016

`100www.indialeg

alonline.com

NI56

50Nayantara Roy:

LG vs Kejriwal:

Battling for the Durbar

Justice K Sreedhar Rao:

Why Blanket

Protection for Judges?

Ajith Pillai Encouraging Child Labor 38

Sujit Bhar Mystery of Netaji’s Gold 34

Ramesh Menon

Poisonous Milk 26

KASHMIR PLEBISCITE

Bikram Vohra Forgotten POWs 60

“Don’t make a fool

of yourself…”This admonition from an American professor could well apply to the eminent

lawyer’s controversial advocacy of a referendum in the troubled state

By Inderjit Badhwar 8lawyer’s controversial advocacy of a referendum in

By IB nderjit Badhwar 8

Prashant Bhushan

NDIA EGAL EEL September 30, 2016 `100

www.indialegalonline.com

NIWhose

Baby Is It Anyway?

A draft law to ban commercial surrogacy is fraught with complications and

may drive it underground By Ramesh Menon 10

?and anandanand

Extracts from Pinki Virani’s book, Politics of the Womb

22Honoring a Legend: India Legal Research Foundation Felicitates Prof Madhava Menon on Teachers’ Day

Nayantara Roy Travails of Triple Talaq 40

Karan Kaushik Death on the Beat 50

Water War: Face-off over Cauvery 72

Shobha John Clipping Wings of Pilots 66

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SOCIETY/ Gau Rakshaks

TALK about the holy cowand unholy politics. Asgau rakshaks go rampag-ing all over India, is ourcountry’s social fabricunder threat? JD (U)leader Sharad Yadav

asked a pertinent question in the RajyaSabha recently: “Who created these gau rak-shaks? Why doesn’t the government banthem? What is this tamasha? We talk aboutTaliban… our caste system has a Taliban-likeattitude, we need to discuss that.” He was

Milking the CowWay back in the fifties, the Supreme

Court ruled that a ban on cattle slaughter would seriously affect some

occupations. But today, we are witnessing more dangerous and

mindless acts of violence as right winggroups try to “protect” the cow

By Kalyani Shankar

FULL PROTECTIONLoading a stray cow

onto a truck at JantarMantar, New Delhi

UNI

70 October 15, 2016

not wrong when he said this, as every day,new incidents of aggressive cow vigilantismand systemic cruelty towards the weakersections and minorities are reported.

While millions of Dalits are dependenton jobs where leather is skinned from deadanimals, Muslims tan them. In recent times,cow vigilante groups have taken the law intotheir own hands emboldened by the ascen-dency of the saffron party. Of the 18 suchincidents from last October to August this year, 16 have been reported from BJP-ruled states.

COW VIGILANTISMIn Madhya Pradesh, two Dalit women wereassaulted for supposedly carrying cow meat.In Punjab, two boys were beaten up and uri-nated upon for the same reason. A 16-year-old Kashmiri Muslim youth was murderedfor riding on a truck transporting cattle. TwoMuslims allegedly transporting beef inHaryana were made to eat cow dung. InJharkhand, two cattle traders were hangedfrom a tree in March. Dalits and Muslimssee some connection in these incidents.

No doubt, the cow has become a pollissue. Politically, these mindless attacksmight push Dalits and Muslims to cometogether. BSP chief Mayawati observed: “Inthe name of cow protection, in the past one-and-a-half years, first there were atrocitiesagainst Muslims, now we see even Dalits arenot being spared. This is not just in Gujaratbut across the country, especially in BJP-ruled states.”

Mayawati’s observation is pertinent inview of the crucial assembly elections inPunjab, Uttar Pradesh, Goa, Manipur andUttarakhand next year. In 2018, Gujarat,Himachal Pradesh, Karnataka, Meghalaya,Mizoram, Nagaland, and Tripura go to thepolls. The BJP, which is on the back foot,will make every effort to mollify dissentinggroups before the electoral race begins.

POLITICAL GAINSThe Sangh Parivar has always been in favorof cow protection. In 1966, a mob of around10,000 stormed parliament demanding aban on cow slaughter. The VHP is planningthe 50th anniversary of this event on

November 7. But there is a difference bet-ween cow protection and cow vigilantism.Gau rakshak committees have mushroomedin the past two years and the BJP has real-ized the damage some of the cow vigilantegroups are doing to its poll prospects.Significantly, Punjab has a 31 percent Dalitpopulation. With just a two percent differ-ence in vote share between the Congress andthe ruling Akali-BJP combine, Dalits andMuslims cannot be ignored. In UP, the polit-ical equation is even more formidable asDalits comprise 22 percent and Muslims, 18percent. Though the BJP was enthused byDalit support in the 2014 polls when theparty got 71 out of the 80 seats in the state,will this situation hold in future? If Muslimsconsolidate behind Dalits, Mayawati canswing the results in as many as 250 seats outof a total of 403 in UP.

The opposition is using the cow vigilanteissue to attack the Modi government.Congress leader Ghulam Nabi Azadobserved in the Rajya Sabha: “The PM talksof building India as a superpower. What Idon’t understand is how will he do this byisolating those who make up almost 45 per-cent of the country’s population.” Otherleaders have also bashed these vigilantegroups and are appalled at their audacity intaking the law into their own hands.

CASTE VIOLENCEA victim of caste violence at CivilHospital inAhmedabad

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BOVINE POLITICS(Clockwise from below)

Puja being performedfor an old cow at

Sree PadmanabhaSwamy temple in

Thiruvananthapuram;Hema Malini, MP,

feeding a cow duringthe inauguration of

Gau AnusansadhanSansthan Parisar in

Mathura; VHP leaderPraveen Togadia

There is no doubt that for Hindus, thecow, worshipped as “Gau Mata” remains aprotected animal. They use panchagavya ofthe cow—milk, curd, ghee butter, urine anddung—in puja. They believe that cow urinedetoxifies the body and can cure healthproblems like diabetes, high blood pressure,arthritis and skin disease. There is ademand that the cow should replace thetiger as the national animal. The Modi gov-ernment has spent ` 5.8 billion for cow shel-ters. Rajasthan has gone further, creating aministry of cow affairs. Yoga guru BabaRamdev’s Patanjali Ayurveda proposes toinvest ` 500 crore in four mega cow shelters

across the country. Punjab wants to tax alco-hol to pay for shelters for stray cattle.

LEGAL HISTORYThe ban on cow slaughter has its own legalhistory. Way back in the fifties, an apex courtruling on the constitutionality of the BiharPreservation and Improvement of AnimalsAct, the UP Prevention of Cow SlaughterAct, 1955, and the CP and Berar AnimalPreservation Act, 1949, observed: “Total banon the slaughter of cattle, useful or other-wise is calculated to bring about a seriousdislocation, though not a complete stoppageof the business of a considerable section ofthe people who are by occupation butchers,hide merchants and so on.” However, in2005, a larger Supreme Court bench upheldas constitutional a total ban on slaughter ofcattle, irrespective of age and usefulness.

Of the 29 states, 24 have passed legisla-tion outlawing cow slaughter. States likeMaharashtra, Haryana and Jharkhand havetightened laws against cow slaughter in thepast two years. Haryana has constitutedthree special teams for cow protection.

It is nobody’s case that Modi had encour-aged these cow vigilante groups and madecow protection a key poll issue in his 2014campaign, criticizing the “pink revolution”and making speeches about how slaughterfor meat is a major threat to cows. Then


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72 October 15, 2016

states to take stringent action against self-proclaimed cow vigilante groups. Thesestrong words were meant to cut the BJP’slosses vis-à-vis Dalits. Modi’s gamble wasthat while some BJP core voters might havebeen offended, these words would assuageDalit voters.

The damage control came at a time whenthe RSS was desperately trying to consoli-date in Gujarat and elsewhere to bringDalits and other backward Hindu commu-nities within its fold. Interestingly, RSS gen-eral secretary Suresh Bhaiyaji Joshi alsocondemned the attacks on Dalits. Now, ano-ther RSS leader, Suresh Soni, has beenasked to douse the Dalit fire.

Understanding the politics in Modi’s out-burst, Mayawati likened him to the mythicalKumbhakarna. “He has woken up now

Sharad Yadav, JD (U) leader“Who created these gau rakshaks? Why doesn’t thegovernment ban them?What is this tamasha? Wetalk about Taliban… ourcaste system has a Taliban-like attitude.”

Mayawati, BSP chief“In the name of cow

protection, in the past one-and-a-half years, first

there were atrocities againstMuslims, now even Dalits

are not spared.”

Ghulam Nabi Azad, leader of opposition “The PM talks of buildingIndia as a superpower. How will he do this by isolating those who make up almost 45 percent of the population?”

came the beef ban in Maharashtra last year,which hit Muslims and Dalits. Beef ban wasan issue even during the October 2015 Biharassembly polls but voters rejected cow poli-tics. The lynching of Mohammad Akhlaq inDadri in UP by a right-wing Hindu mobover rumors of possessing beef made inter-national headlines. Meanwhile, Dalit con-solidation was also seen after the tragic sui-cide of Rohith Vemula, a Dalit scholar inHyderabad. The immediate provocation forthe present Dalit uprising was a July 11 inci-dent when four members of a Dalit family inUna in Gujarat were stripped, tied to a car,dragged for about a kilometer and thenbeaten with iron rods by self-proclaimedgau rakshaks.

MODI REACTSWith more and more incidents of atrocitiesby cow vigilante groups coming to light,Modi personally had to step in to find a bal-ance between Dalit anger and Hindu rightwing groups. Breaking his silence on August7, Modi remarked in Gajwel in Telengana:“If you have to attack, attack me. Stopattacking my Dalit brethren. If you have toshoot, shoot me, but not my Dalit brothers.This game should stop.” The next day in aTown Hall meeting in Delhi, he lashed outat “fake cow protectors” for trying to create“tension and conflict” in society and asked

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IL

because assembly elections are going to takeplace in Uttar Pradesh and some otherstates. He knew that he would not get a sin-gle Dalit vote. He gave the statements to getDalit votes,” she said.

Significantly, while the PM tried to showthat Dalits pain was his own, he did notshow any empathy for Muslims who wereequally affected.

CRITICS GALOREBut Hindutva hawks are upset with Modi’soutburst. His one-time-friend-turned-foe

VHP leader Praveen Togadia dared Modi onhis gau rakshak remarks and demanded thathe withdraw them. Criticism against Modialso came from the Shiv Sena.

“Our question to Modi is, why is thatsuch people, who in the name of cow protec-tion carry out illegal activities, cropped upin the last two years,” an editorial in Senamouthpiece Saamana asked. The HinduMahasabha promised to do a yagna to helpthe PM “regain his senses”.

It is time that the BJP stopped playingcow politics and targeting innocent Dalitsand Muslims for political gains. It shouldrealize that people will no longer buy this lipservice and would like action on the ground.It is time political parties realized thatDalits and Muslims can’t be treated as votebanks. When leaders like Congress vice-president Rahul Gandhi or BJP chief AmitShah make a big show of dining with Dalits,is it likely that they can’t see through this sham?

Caste-based discrimination is a realityeven in the 21st century. Dalits, Adivasis andMuslims continue to get a raw deal. Whilethere was no avenue for Dalit expressionearlier, now with a very visible media andsocial media, atrocities against them cannotbe hidden. They have begun to assert them-selves and with Mayawati as their leader,sooner or later, they may achieve it.

Modi hadencouraged

these cow vigilante groups

and had madecow protection akey poll issue in

his 2014 campaign,

criticizing the“pink revolution”.


HOLY COW(Top) Rashtriya Ahimsa

Manch members perform hawan for Gau Raksha (cow

protection) at JantarMantar in New Delhi;

(Above) A womanpastes cow dung cakes

on a wall to dry in Allahabad

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74 October 15, 2016


1. Poker faceA. Swollen faceB. Expressionless faceC. Gloomy faceD. Ugly face

2. Long suitA. Night-dressB. Life goalC. Legal battleD. Special skill

3. Play one’s last trumpA. Use one’s last assetB. Resign C. Be at death’s doorD. Commit suicide

4. CoxcombA. Ugly buildingB. Police torchC. FoolD. Swindler

5. TomeA. MemorialB. Large bookC. Fruit basketD. Old, torn book

6. Tempus fugitA. Time fliesB. Temporary truceC. Freezing coldD. Calm down

7. GyveA. DanceB. InsaneC. Shackle

D. Prayer

8. StratocracyA. Rule by militaryB. Rule by slavesC. Rule by old menD. Rule by rich

9. HirsuteA. Skin diseaseB. GuardC. HairyD. Corpse

10. UnderstrapperA. MagnetB. AssistantC. NeighborD. Secret pocket

11. Equine refers to.... A. ElephantsB. SharksC. HorsesD. Birds

12. PeachA. Sick personB. Useless deviceC. Fatty womanD. Attractive woman

13. TyroA. BeginnerB. VeteranC. BoxerD. Blunder

14. IngrateA. Infertile

B. UngratefulC. ToughD. In-built

15. Off one’s rockerA. MadB. SackedC. RetiredD. Angry

16. Fall off the perchA. Lose touchB. Turn poorC. DieD. Lose job

17. All my eye!A. Out of my sight!B. Nonsense!C. Anything for you!D. Wow!

18. No diceA. Not kiddingB. FreeC. Definitely notD. Not good

19. Straight as a dieA. HonestB. InsultingC. BoringD. Easy

20. Hard cheese!A. Good luck!B. Have a ball!C. Bad luck!D. Face it!

1. Expressionless face2. Special skill3. Use one’s last asset4. Fool5. Large book6. Time flies7. Shackle8. Rule by military9. Hairy10. Assistant11. Horses12. Attractive woman13. Beginner14. Ungrateful15. Mad16. Die17. Nonsense!18. Definitely not!19. Honest20. Bad luck!

SCORES

0 to 7 correct—Youneed to do this more

often. 8 to 12 correct—Good,

get the Scrabble board out.

Above 12—Bravo! Keep it up!

Have fun with English. Get the right answers. Play better Scrabble.

By Mahesh Trivedi

WORDLY

WISE

[email protected]

ANSWERS

INDIA was dragging its feet onratifying the climate agreementthat was concluded in Paris inDecember 2015. One unstatedreason is that it was using this asa lever to pressurize the US intogetting it admitted into the

Nuclear Suppliers Group (NSG). Along withhydro, wind and solar power, India claimsthat it is including nuclear as a clean fuelwhich doesn’t cause global warming.

ENVIRONMENT/Paris Pact

The climate agreement of December 2015needs to be ratified by countries, which together

emit at least 55 percent of global greenhousegases. India has belatedly agreed to do it but

was using it as a lever to join the NuclearSuppliers Group

By Darryl D’Monte in Delhi

Climate:India’s

Bargaining At the recent G20 meet in China, the

host country and the US—the first and second biggest emitters of greenhousegases—ratified the agreement. Together,they account for 38 percent of the world’semissions. If the EU isn’t treated as oneentity, India is the third biggest emitterbecause of its huge population, though itsper capita emissions are far lower than thetwo biggest countries.

The agreement isn’t legally binding, butit imposes certain obligations on those whoratify it. Each country has what is known inUN jargon as “Intended Nationally Deter-mined Contributions” or INDCs, whichspeaks for itself. In other words, each coun-try states, by how much it can cut the use offossil fuels and will, in time, subject these tointernational scrutiny. There are no penal-ties for not keeping to one’s commitment,only global censure.

76 October 15, 2016

UNI

According to Climate Transparency,between 1990 and 2013, fossil fuel consumption went up by a staggering 56 percent.

certain states and political parties intofalling in line in cutting emissions, the truthis that it only required the cabinet to give itthe go-ahead and doesn’t need parliament’sapproval. The EU is facing somewhat simi-lar problems because some member coun-tries—like Poland, a major coal producer—are reluctant to commit to cutting the use offossil fuels.

Likewise, India is opposed to a deadlinefor ending fossil fuel subsidies. According tothe International Energy Agency, theseglobally amounted to $493 billion in

CLIMATE CHANGE(L-R) A thunderstorm in Nanning, China, and a typhoon in Manila, Philippines

MOROCCO MEETFor the agreement to come into force, atleast 55 countries of the 174 which signedthe treaty this April must ratify it. These col-lectively must contribute an equivalent—55percent—of global emissions, which indi-cates how much the Big Two emit. Sixty-onecountries have ratified it so far, but more areexpected to by the next UN FrameworkConvention on Climate Change (UNFCCC)meet in Morocco this November.

India had earlier preferred to state,ambiguously, that it would consider doingso “by the end of the year”.

Arvind Panagariya, Niti Ayog vice-chair-man, dubbed a “sherpa” or key aide to thePrime Minister at the recent G20 meet, hadsaid: “We have sought flexibility. Yes, we arecommitted to ratifying it, but cannot com-plete domestic procedures by 2016-end.”

While there may be issues in compelling


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2014, mainly in rich countries. However,India faces the problem of removing suchsubsidies on kerosene and LPG which aremeant for the poor.

INDIA’S PREVARICATIONBy itself, India’s recalcitrance hardly jeop-ardized the ratification of the Paris agree-ment since it will be operationalized only in2020. But it would stand to face the oppro-brium of other countries as the only majoremerging nation to be prevaricating on thisscore. President Barack Obama is keen to

see the agreement through before the end ofhis presidency, particularly if Donald Trumpcomes to power.

China is being proactive because it isprojecting itself as the world leader inrenewable forms of energy like solar andcorrectly sees that there is a huge market inthis area—not least in India itself—waitingto be tapped.

The Jawaharlal Nehru National SolarMission seeks to “establish India as a globalleader in solar energy, by creating the policyconditions for its diffusion across the coun-try as quickly as possible”. India is attempt-ing to require solar power developers—everyday sees the entry of new players likeAdani—to use solar cells and modules madein India in various phases of their projects.In return, the government would buy theirclean power at a fixed rate for 25 years.

WTO PANELHowever, the US, which has major playersinvesting in India’s solar industry, likeSunEdison (which recently bowed out), tookIndia’s decision to the World TreatyOrganization (WTO) on the ground thatthis was a protectionist move, discriminat-ing against US products.

The US argued, and the WTO panelagreed, that by imposing such requirements,India accorded imported solar cells and

DIFFERENT PRIORITIES(Below) A demonstration for

climate protection in Tokyo onNovember 28, 2015, a few daysbefore the Paris Climate Summit

(Bottom) Prime MinisterNarendra Modi launching a

book titled Parampara at theParis Climate Summit

78 October 15, 2016

Eight US states offer renewableenergy credits

for eachmegawatt hour

of electricity generated from

a renewableenergy system

constructedusing equipment

made in these states.

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modules less favorable treatment than simi-lar products manufactured in India. ThisFebruary, the WTO ruled against India,arguing that its policy violated its commit-ments under the global trading regime,specifically the General Agreement onTariffs and Trade (GATT) and the Agr-eement on Trade Related Investment Mea-sures (TRIMs).

According to an article co-authored byconsumer activist Pradeep S Mehta: “Indiaargued that the measure was exempted fromthe scrutiny under the WTO agreements be-cause the government ultimately procuredthe electricity so produced and was thus betreated as government procurement. How-ever, the WTO panel, relying on earliercases, held that the product procured waselectricity, whereas the product discrimi-nated against was the inputs used to pro-duce electricity and hence the exception didnot apply.”

India also argued, unsuccessfully, that itwas required to protect its nascent solarindustry due to its commitment to cut fossilfuel consumption under the UNFCCC. Butthe WTO stated, incongruously, that inter-national environmental obligations imposedno binding commitments on nations andthus they were not “laws or regulations” thathad to be complied with. Trade obviouslytakes precedence over the prospect of cata-strophic climate change.

India finally raised a counter-dispute


against the US at the WTO on September 9over domestic content requirements andsubsidies provided by eight American states—Washington, California, Montana, Massa-chusetts, Connecticut, Michigan, Delawareand Minnesota—for renewable energy com-panies in violation of national treatmentand other provisions.

It cited several incentive programsoffered in these states to promote the renew-able energy sector in violation of core WTOrules and launched dispute settlement pro-ceedings against the US.

US’ DOUBLE STANDARDSAccording to the Penang-based Third WorldNetwork (TWN), which tracks internationalclimate and all development negotiationsminutely, the US had to respond to India’scomplaint within 30 days. India could callfor a dispute settlement panel to adjudicateover the allegedly inconsistent practicesadopted by the eight states if the two sidesfail to come to an understanding.

In the programs India mentioned, theUS states offer renewable energy credits foreach megawatt hour of electricity generatedfrom a renewable energy system construct-ed using equipment made in these states.

In California’s solar incentive program,for example, it was prescribed that photo-voltaic modules and solar power equipmentmust be manufactured within Los Angeles.TWN notes that “the US provides subsi-

“We have sought flexibility. Yes, we arecommitted to ratifyingit, but cannot completedomestic proceduresby 2016-end.”

—Arvind Panagariya, Niti Ayog vice-chairman

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dies worth tens of billions of dollars for pro-moting solar energy”.

However, the appeal failed on September16, with the US Trade RepresentativeMichael Froman saying that India’s “domes-tic content requirements (DCR)” were “aclear victory for American solar manufac-turers and workers”.

The dispute also places a question markover the bonhomie exhibited by Obama overPrime Minister Modi’s announcement, onthe opening day in Paris, that India waslaunching an International Solar Alliancewhich would be based in the country, andwas committing land and $400 milliontowards it. This is a potential game-changer,considering that India could position itselfas a technology hub for this clean energy.

FOSSIL FUELThe supreme irony is that whether India rat-ifies the agreement or not, the G20 coun-tries are increasing, not decreasing, theirfossil fuel consumption. According to Cli-mate Transparency, a group of international

researchers, between 1990 and 2013, its usewent up by a staggering 56 percent. Aus-tralia, Canada, Saudi Arabia and the UShave the highest per capita energy-relatedCO2 emissions.

Even if each and every country ratifiesthe agreement, there is no way that theglobe’s average temperatures will not cross2oC above pre-industrial levels, leading toirreversible climate change. At Paris, small-island countries, which are the most affect-ed, wanted this limit brought down to 1.5oC,which the agreement pays lip-service to as agoal, but is an even more remote possibility.

The only binding UNFCCC law was theKyoto protocol, which was signed in 1997and came into force in 2005. It laid downspecific binding emission levels for industri-al countries and penalized those who didn’tadhere to them.

It is little wonder that the US refused toratify it, saying that China and India shouldfirst come on board. A few years later, evenits host country, Japan, withdrew.

Since the abortive Copenhagen summitin 2009, it has been a downhill slope innegotiations to rein in the prospect ofunprecedented global warming. This istermed “The Great Derangement” by novel-ist Amitav Ghosh, in his latest non-fictionbook of that title. It addresses the refusal ofnations—and individuals—to look at cata-clysmic climate change in the face.

India raised a counter-dispute against the US at the WTO over subsidies

provided by eight American states forrenewable energy companies.

DOMESTIC CONSTRAINTS(L-R) Despite awareness about

the harm that fossil fuelscause, most countries are

dependent on them

80 October 15, 2016

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IL


� At present, India is home to fivemega cities with over 10 millionpopulation—Delhi, Mumbai,Kolkata, Bengaluru and Chennai.But by 2030 Hyderabad andAhmedabad will also become megacities, says the 2016 World CitiesReport issued by the UnitedNations’ department of economicand social affairs.

� In India, there are one millionpatients of thalassemia, an inher-ited blood disorder.

� As many as 116 farmers havecommitted suicide in the past three months, drought-proneMaharashtra alone accounting for 57 such deaths.

� Dengue and chikungunya have claimed 30 lives in Delhi this year.

� According to the QS WorldUniversity Rankings 2016-17, the Massachusetts Institute ofTechnology, US, is the world’s bestuniversity for the fifth consecutiveyear. The Indian Institute ofScience, Bengaluru, remainsIndia’s highest-ranked institution.There are just four Indian institu-tions among the world’s top 100.

� India is the fastest-growing aviation market, clocking a 22percent rise in domestic traffic.The government hopes to increasethe number of flyers from eightcrore to 30 crore by 2022.

� There were 45,000 maternaldeaths in India last year, which is15 percent of the global total.

� A World Metro Database com-pilation of Metro fares of 55 citiesshows Delhi to be the cheapest.

� Hindi film Pink, released lastmonth, was Amitabh Bachchan’s219th movie in his 47-year career.

� Mandi in Himachal Pradesh isIndia’s cleanest district followedby Sindhudurg in Maharashtra,according to the first-ever surveyof rural areas. Seventy-five dis-tricts were short-listed across thecountry by the Quality Council of India.

� India is the world’s second-largest English-speaking countrywith 125 million Indians speakingthe language.

� The prevalence of diabetesincreased by 80 percent amongwomen between 1980 and 2014.The estimated cases of diabetes in India in the age group of 20-70 years were 6.68 crore and6.91 crore in 2014 and 2015,respectively.

India is among the top threecountries in the world with a dia-betic population. China has thelargest number of cases of dia-betes (109.6 million), followed byIndia (69.1 million) and the US(29.3 million) in 2015.

� Cybercrime went up by 20 per-cent in 2015 compared to 2014, logging a 2,400 percent increaseover the past decade. Cybercrimecases rose from 9,622 in 2014 to11,592 last year, nearly one-third ofthe crimes being committed forfinancial gain.

—Compiled by Mahesh Trivedi

FIGUREIT OUT


PEOPLE /

Believe it or not, Keralites used to consume alcohol worth over `30 crore every day! That is

nearly 14 percent of the national consumption rate!Backing the Kerala government’s move to ban

liquor, the Supreme Court had asked states to at leastcontain, if not stop consumption. The apex court saidthat free trade in alcohol denudes family resourcesand reserves and leaves women and children as its most vulnerable victims. The apexcourt had agreed with Kerala’s stand that it wantedto curb excessive alcohol consumption.

Kerala’s Excise Department, which was earlier amajor revenue earner for the state through sale ofliquor, has given a facelift to the walls of its headquarters in the city with paintings depicting the ill-effects of alcoholism in order to create public awareness.

— Compiled by Kh Manglembi Devi Photos: UNI

Misery of Liquor

82 October 15, 2016

Drowning in Drinks

.

RNI No. UPENG/2007/25763 Postal Regd. No. UP/GBD-197/2014-16

india legal 15 october 2016

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