india legal: issue: 30 september 2014

NDIA EGAL L STORIES THAT COUNTFilm courtrooms: Reel vakils

September 30, 2014 `100

www.indialegalonline.com

IThe courts step in to control rampant misuse of the much-needed anti-dowry laws as weapons of vindictive persecution

Kerala liquor law:Bottoms down

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WHO ARE THE VICTIMS?

CBI MESS: Directors directoriesSHANTI BHUSHAN: Facing the heatSEX WORKERS: Green light ahead

Lions and the law: Rip-roaring rumpus

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HOW WILL THE US TAME

ITS OWN MONSTER? 68

SECTION 498A

ISLAMIC STATE

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PLUSWill J&K see a Hindu CM? The politics of toilets

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LETTER FROM THE EDITOR

ing that there are some seven eligible per-sons waiting for this post. And tongues arewagging that Dr Nigam enjoys this specialprivilege because her daughter happens tobe married to the son of Shashi KantSharma, none other than the powerfulComptroller and Auditor General of India(CAG), who is the nations top constitution-ally created watchdog for keeping a vigil onfraud, waste and mismanagement in thegovernment. The post is ranked along withthe judges of the Supreme Court in theIndian order of precedence.

This is indeed a bizarre story. DrNigam was actually given a fond,warm official farewell on August,2014, after she completed her second exten-sion. Curiously, on September 1, 2014, a new30th firman (office order 427/2014)descended from way up high, signed by thedirector (MA) of the headquarters of ESIextending her services wef 01.09.2014 foranother year.

So where does the buck stop in thisunusual grant of what seems to be an obvi-ous act of patronage in violation of the meritsystem. Sources say that the director generalof ESI Corporation had opposed the thirdextension based on the availability of eligiblecandidates and consequently, according tothe babu lingo, the file was returned by theMinister, Labor and Employment.

ROM time to time, I will carry inthis space commentaries and reve-lations concerning irregularities inmatters of governancewhetherperceived or realthat cause con-

cern regarding the sanctity of legal andadministrative procedures. Indias last gen-eral election was fought on the issue of pro-bity, and Prime Minister Narendra Modi hasmade it his personal mission to ensure that,like Caesars Wife, his ministers and bureau-crats are cleaner than a hounds tooth.

It is for this reason that matters such asthe one brought recently to my attentionbear scrutiny. It concerns repeated, ques-tionable extensions of service granted to Dr Renuka Nigam as Deputy MedicalSuperintendant (DMS) of the Indira GandhiEmployees State Insurance (ESI) Hospital,in Delhi. This is a mammoth governmentundertaking handling medical treatment ofthose who qualify under the governmentsliberal health insurance benefits. The fundsinvolved in handling tenders and contractsare huge.

The DMS directly deals with these mat-ters. It goes without saying that the post is aplum job, a coveted assignmentand DrNigam, 63, is now on her third extension inthis assignment following a series of back-to-back extensions given to her after sheattained the prescribed retirement age of 60years. Is this usual? Perhaps not, consider-

F

ESI AND THE BUDDY SYSTEM

INDERJIT BADHWAR

4 September 30, 2014

such officers and given training beforehandthereby minimizing the number of proposalsavailable for extension (Page 652, SwamysManual 2012).

The concerned department, I believe, isdefending the ESI extension on grounds oftime requirements and immediate eligibilitycriteria etcetera. Personally, I do not believethat a good officer should be retired at agesixty. I am all for a hefty raise in the retire-ment age so that humans are not put out topasture in their prime. Be that as it may, inthe current scenario, an extension results inthe denial of promotion to scores of officersand staff down the line.

There is a precedent that is notewor-thy. When a proposal for extension ofGR Nayar, former Insurance Commi-ssioner, was forwarded in 1989a timewhen that post was classified as one of thefive posts of principal officers and the gov-ernment was appointing officers through theAppointments Committee of the Cabinet(ACC)the move was shot down and a per-son in the feeder cadre with only six monthsservice was promoted by relaxing the periodof residency by 4 12 years.

The provisions for relaxation in therecruitment regulations in the general sidehave always been used for promoting peoplein the lower cadre to stimulate vibrancy inthe functioning of the organization and notfor extension for seniors to cause stagnancy.

It is not for me to judge Dr Nigams com-petence or integrity. But the circumstancesof her extension do raise questions aboutfavoritism and bending the rules to favor apowerful official at the expense of qualifiedcandidates. In the US, they call this thebuddy system.

Fairly, or unfairly, fingers are beingpointed at intervention from the PrimeMinisters Office for brushing aside objec-tion and pushing the unprecedented serviceextension. I am not for a moment suggest-ing that Modi personally intervened, or evenhas the slightest knowledge of it. But thatsthe perception price he must pay because ofhis image as a vigilant taskmaster, running atight ship under an omniscient, watchful eyeon every minister and ministry.

And the watchful eye, surely, mustfirst examine whether an extensionin service in the ESI Corporation isa simple matter. Point of fact, it is not. Thebabucracy has been careful to create anelaborate obstacle course. The Governmentof India prescribes filling a form with theproposal. Here are its elements:

In the case of medical officers, aDepartmental Promotion Committee (DPC)should be convened by the corporation toconsider the cases of all eligible officers. Inorder to give an incumbent an extension,the committees findings must show that allthe eligible officers in the feeder cadre areunfit. If the officers in the cadre are eligiblefor time-bound promotion, the proposal forextension should not result in denial of pro-motion to them.

In the case of vacancies in the generalside, the UPSC plays a role. It must convenethe DPC and find that all the eligible per-sons in the feeder cadre are unfit for promo-tion. The general rule is that the crucial dateof eligibility for the vacancies, which occursin a financial-year-based-vacancy-year, isthe preceding January 1st. But, there is nobar to promote officers who become eligibleon that day to be considered for promotionagainst vacancies that occur during the peri-od from 01.01.2013 to 31.03.2013.

Indias Department of Personnel andTraining clearly states that a systematicreview of the officers approaching the age ofsuperannuation should be conducted well inadvance so that whenever necessary, suit-able persons are selected in time to replace [email protected]

5INDIA LEGAL September 30, 2014

The circumstances of Dr Nigams extensionraises questions about favoritism and bending the rules to suit a powerful officialat the expense of qualified candidates.

SEPTEMBER 30, 2014

CONTROVERSY

Comprised Bureau of InvestigationCBI director Ranjit Sinhas visitors diaries reveal his connections with influentialcorporates named in the Coalgate and 2G scams. A probe by VISHWAS KUMAR

11

AAP leaders real faceSC excoriates senior lawyer Shanti Bhushan for a dubious attempt toinfluence a case. A report by INDIA LEGAL TEAM

15

Article 498A: A litany of misusesIt was meant to provide succor to hapless women suffering abuses at the hands ofin-laws; instead, the anti-dowry law has become a tool for educated urban womento harass men and their families. BHAVDEEP KANG and VISHWAS KUMARpresent some harrowing cases to highlight the lacunae

22

Where collegiums failedVeteran journalist and Rajya Sabha member HK DUA criticizes the collegium system for never laying down the criteria for appointment of judges

MY SPACE

FOCUS

LEAD

40

VOLUME. VII ISSUE. 26

Editor-in-Chief Inderjit Badhwar

Managing EditorRamesh Menon

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Number 2 solutionNarendra Modis team has come up withan ingenious way to woo dalits andchange electoral arithmetic in the northIndian states of UP and Biharprovidethem toilets, writes VISHWAS KUMAR

30

42Tipplers troublesKerala chief ministers decision to declare the statepartially dry has been met with widespread oppositionfrom several quarters. TK DEVASIA assesses thefinancial and social implications of the move

SOCIETY

60Filmy adalatsHeated arguments, incredulouslogic, dramatic monologues,last-minute evidence and mostdramatic turn of events JUI MUKHERJEE takes a lookat Bollywood courtroom sceneswhich, howsoever unrealistic,bring a filmy script alive

SPECIAL STORY

64The stamp of faithA temple near Almora sees devotees from acrossthe country appeal to Golu Devta for favorable decisions in court casessubmitting their requestson stamp paper. A report by RAMESH MENON

HUMAN INTEREST

POLITICS A L S O

Cover Design: ANTHONY LAWRENCE

Green light for red light areasDIVYA A probes whether legalizing prostitution willlower crimes against women, as well as provide abetter future for sex workers

48

REGULARS

Letter from the Editor ............ .........................................................4Letters..............................................................................................8Quote-Unquote ............... ................................................................9Ringside.......................... ..............................................................10Supreme Court..................................................................................17Courts................................................................................................20Briefs .................................................................................................77Consumer Corner..............................................................................78Is That Legal?....................................................................................80Wordly-wise .......................................................................................81People ...............................................................................................82

Cover Photograph: ANIL SHAKYA

34Mission KashmirThe BJP has embarked upon an ambitious mission of securing the chief ministership in the state. Its manoeuvres vis--visPakistan and separatist leaders, and its promptness during the floods, might just win it the day, writes VISHWAS KUMAR

Lawyers question a newconsumer bill that doesaway with their need indeciding cases .....51

Irom Sharmilas struggle against AFSPAand medias ignorance ofthe issue....................54

The tussle between MP and Gujarat over Gir lions.................56

Americas Frankensteinmonster IS, and the trailof atrocities in Iraq.68

Can a hefty compensation sum giveback a falsely accusedperson his wastedyears?...........................76


Please email your letters to:[email protected]

Or write to us at:India Legal, ENC Network,A-9, Sector 68, Gautam Buddh

Nagar, Noida (UP) - 201309

Crying for attentionYour editorial Maa Ganga will test Modis leadership (September 15, 2014) was evocative,informative and lyrical. Developmental concernshave tortured and maimed the river, so intrinsicto India, its culture and traditions. AlthoughNarendra Modi made tall promises beforeassuming power that he would free the riverfrom all the ills plaguing it, the progress report,as of now, is not promising at all. If Modi can dowhat the river needs, he will walk with glory inthe comity of nations.

Sandhya Gulati, Delhi

Packed with infoI enjoy reading the SupremeCourt, Courts, InternationalBriefs, Is that Legal? ConsumerWatch and the People pages. Itis amazing how so much ofinformation gets packed in.They offer a good read whentheres paucity of time. Also, thechoice of news is very interest-ing. Kudos to India Legal. I amalready looking forward to reading the next issue!

Usha Raman, Chennai

Monitoring the WestI enjoyed reading the story,Preachers Folly in theSeptember 15, 2014, issue. Wealways admire the West aboveall, especially the US, but thisstory proves that the West isnot squeaky clean either. Theyare equally, perhaps moreguilty, in committing grosshuman right violations.

It will be good if IndiaLegal covers international stories regularly to provide us abetter insight on world affairs.

Vinod Lal, Mumbai

LETTERS

www.facebook.com/indialegalmagazine

www.twitter.com/indialegalmag

Ills plaguing sportsI am happy to note that your magazine regularlytakes up issues that are of public interest.However, it would be nice if India Legal publishedcorruption in sports bodies and the governmentsapathy towards the development of sports,except cricket.

The government is still sitting on the contingents names for the Asian Games atIncheon, South Korea, starting from September19. As a result, India could not be part of theDelegates Registration Meeting, so crucial for registration of athletes to stay in the games village It just smacks of a casual approach.

Samaresh Das, Kolkata

Save the birdsI enjoyed going through the photo essay on birds(On the Last Flap, September 15, 2014). It is real-ly disheartening to see exotic and regular birds disappearing due to natural as well as man-madereasons. I was especially shocked to read thatIndian pharmacies continue to sell Diclofenac,which has been long banned.

I remember when I was a kid, our housewould be filled with the chirping of the adorablesparrows, but I havent spotted one in five years!Their silence is a wake-up call for us.

S Ramaswamy, Delhi


If you look at Modisreality, quite clearly heis anti-Muslim, anti-Pakistan there is no reason why weshould be treating himlike a viceroy

Former Pakistan presidentPervez Musharraf, on PM

Narendra Modis Pakistan policy. ARY News

There is no constitutional provisionor even a statutory rule that the senior-most judge of the SupremeCourt should be appointed as theChief Justice of India.Justice Markandey Katju, on appointment of

CJIs, in his latest article

I knew that agreeing to write mystory would need me to be completely honest, as thats theway I have always played the game.

Sachin Tendulkar, onthe impending release

of his autobiographyPlaying It My Way.

The New Indian Express

He made it clear in severalways that he wasnt happy withthe fact that I was drawingmore applause.

Annapurna Devi, late Pandit RaviShankars former wife, on her

popularity wrecking their marriage. The Times of India

Who would like to stay confinedto a prison room for years?Everyone wants to lead a happylife and so do I. But my crusadeis of greater importance

Civil rights activist Irom SharmilaChanu, on whether she longed to lead

a normal life. The Times of India

Today, you can put me in aboxing ring. I may not be ableto beat another boxer, but Illbe able to give her a toughfight. Ive learnt it that much.

Bollywood actress Priyanka Chopra,on her abilities as a boxer after playing

the role of boxer Mary Kom in thebiopic film. Deccan Herald


QUOTE-UNQUOTE

In our state if the same situation develops, we will

think. Nobody is untouchable

West Bengal ChiefMinister MamataBanerjee, on the

possibility of the TMCtying up with the CPM.

Chobbis Ghanta, aBengali channel

The world will not wait for us. Wehave to run ahead of time. Weshould not say in 2014 that a projectconceived in 1992 will take somemore time.

Narendra Modi, asking DRDO to deliverprojects on time. The Times of India

Our government... teaches the whole people by its example. If the governmentbecomes the lawbreaker, it breeds contempt for law; it invites every man tobecome a law unto himself; it invites anarchy.

Judge Louis Brandeis

VERDICT


CONTROVERSY/ CBI director/visitor logbook

ranjit sinha is in a tight spot. influential corporate honchos meeting himare under the scanner for coalgate and 2g scams By Vishwas Kumar

THERE is more to the controversial visitors log-book at Central Bureau of Investigation (CBI)Director Ranjit Sinhas residence than meets theeye. In fact, some of the visitors are indirectlylinked to the Niira Radia tapes which, four years

back, exposed the nexus between corporate lobbyists, politi-cians, bureaucrats and journalists.

Preliminary analysis of Sinhas list reveals the names oflobbyists and middlemen who escaped scrutiny in the Radiatapes, as their names didnt figure in it. Among them are TonyJesudasan and AN Sethuraman, Anil Ambanis employees;Deepak Talwar of Talwar and Associates, who is close to for-mer minister Praful Patel; Shiv Babu alias Shiv Kumar, whoreportedly works for a top corporate which has interests in oil,gas, telecom and media; and Sunil Bajaj who works for Essar.(See Box: Roll of Dishonor)

UNDER SCRUTINYSo, why were these lobbyists meeting Sinha? The answer issimple. The companies they work for are under CBIs probe.In some cases, these visitors are directly under the agencysscanner. And they obviously need help. But the SupremeCourt probe into Sinhas logbook and constant monitoring ofCBIs handling of 2G and Coalgate scams have made mattersworse for these powerful corporates. Besides the fear of get-ting convicted and jailed, these visitors also fear losing thevast sums of money they made through scams. The 2G and Coalgate scams alone led to a loss of `3.76 lakh crore tothe exchequer.

Sinha, however, has defended his meetings with these lob-byists, saying no favors were granted to them. But facts tell adifferent story. Take the case of Anil Ambanis employees.Sinhas logbook reveals that between May 2013 and August

COMPROMISEDBUREAU OFINVESTIGATION?


Anil Shakya

2014, Jesudasan and Sethuraman visitedSinhas residence 50 times in 15 months, ie,almost every week.

Juxtapose this with Sinhas letter in April2014 to 2G cases Special Public ProsecutorUU Lalit (now a Supreme Court judge). Itsaid there was an urgent need to re-exam-ine the charges against six accused ofReliance ADAG (Anil Dhirubhai AmbaniGroup) due to fresh evidences in the case.The letter came at the time when the casewas in the final stage of trial, long after thechargesheet had been filed. This shows thatthere was a link between the visits to Sinhashouse and his letter.

STRANGE INTERPRETATIONMoreover, Sinha wanted a change in CBIsfundamental premise on which it had built acase against those accused in the 2G scam.His letter argued that Clause 8 of USAL(Unified Access Service License) guidelinesshould apply only to licenses companies andnot to the applicants. Clause 8 states that nosingle company or legal person, either direct-ly or through its associates, shall have sub-stantial equity (10 percent or more) holdingin more than one licensee company in thesame service area.

Since Reliance Telecom was already hold-ing several telecom licenses, the CBI foundthat it had violated USALs Clause 8 by hav-ing substantial control (more than 10 percent) in Swan Telecom, one of the many

AN Sethuraman & TonyJesudasan: Corporate lobbyists with Reliance ADAG.Their colleagues are involved inthe 2G scam.

Ashok Agarwal: IndianRevenue Service officer probedby the CBI, when he served inthe Enforcement Directorate, forallegedly implicating several bigbusinessmen. After a long suspension, he is back in thejob, facilitated by CBIs changein stand.

Moin Qureshi: Meat exporterwho is being probed by the ITDepartment for Hawala deals.His links with former CBIDirector Amar Pratap Singhcame to light during this probe.He is known to an influentialcorporate lobbyist.

Deepak Talwar: Corporate lobbyist named by CBI in one ofits preliminary enquiries in theNiira Radia case.

Sunil Bajaj: Corporate lobbyistworking for ESSAR group.

Ruia: Could be a member ofthe Ruia family that owns Essargroup. Involved in 2G scam.

Anil Bhalla: A close associateof Abhey Oswal, a close relativeof Navin Jindal. Several ofJindals companies are underCBI probe in the coal scam.

Shiv Babu: Corporate lobbyistconnected to a top corporatewith interests in oil, gas, telecomand media.

Nahata: Could be Mahendra

Nahata, owner of HFCL. He soldHFCL Infotel to Mukesh Ambani.

Subodh Kant Sahay: Formercabinet minister in the UPA government. His brothers company is a beneficiary of coalblocks.

Devender Darda: Son ofCongress MP Rajendra Darda,who is charge-sheeted in one ofthe coal cases.

Rajendra Darda: Congress MPwho was probed in the coalscam.

KD Singh: TMC MP and ownerof Alchemist Group. The ITDepartment recently raided hiscompanies and the EnforcementDirectorate too is examining it.

Dr Ketan Desai: Former president of the Medical Councilof India; was probed by CBI incorruption cases.

Vinay Saigal and SandeepSaigal: Vinay runs an exportfirm and Sandeep is a customsclearing house agent.

Pravesh Jain: A promoter ofParas Dyes and Chemicals.

Shailendra Pratap Singh:Corporate lobbyist working forseveral companies.

Mithlesh Jha: A retired juniorengineer, who is said to be aclose relative of an influentialbureaucrat working in theMinistry of Finance.

Rajshekhar Reddy: Could notbe identified.

Shiv Pal: Identity not known.

Honored guests?Names in the logbook of CBI director Ranjit Sinha



Anil Shakya

DUBIOUS NEXUS(Facing page) CBI directorRanjit Sinha, whose visitors logbook haskicked off the probe;(above) former cabinetminister Subodh KantSahay, whose brother is abeneficiary in coal allot-ments and whose namefigures in the logbook; UU Lalit, specialpublic prosecutor in the2G scam, who objected toSinhas stand

successful companies that had obtained a 2Glicense during the tenure of former TelecomMinister A Raja. In Reliances case, the appli-cant was DB Realty owner Shahid Balwascompany, Swan Telecom. And as per Sinhasargument, if Clause 8 didnt apply to Swan,the entire case against Balwa and Reliancewould collapse. However, Sinhas interpreta-tion of Clause 8 of USAL will not be limitedonly to Ambanis company officials. It can beused by other accused companies, whichhave similarly flouted the clause. It couldstall the entire trial at the final stage.

Lalit, who was appointed by the SC toassist the CBI in court, strongly objected toSinhas suggestions. In a letter to Sinha, hewrote that the draft (letter) sent by the CBIis tantamount to weakening the case. The SChas now taken the letters exchanged betweenSinha and Lalit and is examining them in thewake of the fresh controversy which haserupted over the logbook.

CBI OVERRULEDSimilarly, in the Coalgate probe, Sinha want-ed to close the case against 14 companieswhich were beneficiaries of 64 coal blocksallocated by the government. All these coalblocks, as per the Comptroller and AuditorGeneral, were given by the government tocompanies at throwaway prices without fol-lowing the auction process. Followingprotests from PIL petitioners in the case, theSC took an unprecedented step and referredthese cases to the Central VigilanceCommission (CVC).

The CVC overruled CBIs conclusions andsaid that all these cases need to be probedand a criminal case registered. The SC agreedwith the CVC, casting further aspersions onSinhas leadership.

Meanwhile, one of the petitioners in theCoalgate case, Prashant Bhushan (he is also a petitioner in the 2G case), recentlydemanded that Sinha be removed from theCoalgate probe. He had also asked the SC toexamine Sinhas list of visitors and find out ifthere was any nexus between him and these14 companies.

Meanwhile, Sinha has claimed that thelogbook was unauthorized and riddled with

inconsistencies. He also denied the frequencyof meetings, but accepted that he had metthe visitors at his official residence at 2Janpath, New Delhi. The SC on September 9asked Sinhas lawyer, Vikas Singh, to file adetailed affidavit within 10 days on the alle-gations of influencing the probes being car-ried out on its directions in the 2G andCoalgate cases.

SILENT GOVERNMENTSinhas alleged hobnobbing with corporateentities that his organization was investigat-ing has shocked many. It has also put theModi government in a tight spot.

Sharad Yadav, president of the Janata


Anil Shakya

Dal United accused Sinha of running a gangof corrupt officers. He also questioned whythe Modi government was silent though ithad been elected on an anti-corruptionplank? Why has the government not sus-pended this man (Sinha)? No director hasharmed the CBI as much as he has. Arresthim, suspend him but do something, Yadavsaid, claiming he had in his possession, doc-uments which would nail Sinhas involve-ment in corrupt practices.

Yadav said a naked dance of corruptionwas happening right under the nose of thegovernment. Earlier, Bhushan, too, had writ-ten a letter to Prime Minister Narendra Modidemanding action against Sinha.

The government, however, is moving cau-tiously in this case. Sinha had already comeunder fire for giving a clean chit to Modisclose aide Amit Shah in the Ishrat Jehancase. Moreover, the government is handi-capped due to an earlier judgment of the SC,which gave the CBI director a fixed term oftwo years. While this was done to protect the

director from any extraneous influenceswhile carrying out sensitive probes againstthe government, he can be removed in excep-tional circumstances. The governmentwould, therefore, prefer to wait for the SCsdecision in this case.

However, there are reports that the gov-ernment may ask the CBI director to proceedon leave till the matter is disposed off.Another option is to ask him to voluntarilyrecuse himself from both the Coalgate and2G scams. Sinha, incidentally, still has threemonths in office before he retires onDecember 3.

Ironically, it was the SCs own decision inthe Vineet Narain case in 2003 that hascome back to haunt it. It freed the cagedparrot (as the CBI was described by thejudge) and gave it financial and administra-tive authority. Similarly, last year, Bhushanhad objected to the governments move toinclude Delhi Police Commissioner NeerajKumar in the list of probable candidates forthe post of CBI director. He brought on friv-olous charges and thus, facilitated theappointment of Ranjit Sinha.

DIN OVER DEALS(Clockwise from top left)

Prashant Bhushan wants aprobe into Sinhas dealings;JD (U) leader Sharad Yadavquestions Modis silence onthe issue; and Ketan Desai,

former president, MedicalCouncil of India, being probed

in corruption cases, was oneof Sinhas visitors

The Supreme Court probe into Sinhas logbook and constant monitoring of CBIs

handling of 2G and Coalgate scams havemade matters worse for powerful corporates.



IL

Anil Shakya

RAREREPROACHthe senior advocate was pulled upby an apex court bench for trying toforce one of the judges to recusehimself from a caseBy India Legal Team

IN a surprising development, a champion againstcorruption was given a rap on the knuckles by aSupreme Court (SC) bench, for being motivated bythe wealth of his client and forgetting his duties tothe court. Senior advocate Shanti Bhushan was

pulled up by Justices Arun Tandon and Arvind KumarMishra for trying to intimidate one of them to recuse himselffrom a case which Bhushan was representing. This is signifi-cant as Bhushan, along with his son Prashant, have beentorchbearers in the fight against corruption. Besides, the for-mer law minister is a patron of the Aam Aadmi Party.

EMBARRASSING INDICTMENTThe benchs scathing indictment said: A senior seasonedadvocate should not reflect uncertainty in his accomplish-ments by adopting a sharp practice like deliberately intimi-dating a judge to recuse himself through a theatrical per-formance encouraged only by the purse of his client asagainst his true obligations towards the court and society atlarge, where he keeps preaching all the time about the mal-adies of a corrupt mind. He should not appear hypocritical bypretending to go to heroic lengths in the devilish interests ofhis clients. He should not allow his rationality and objectivityto be overtaken with the aid of aggression and intolerance.

The case involved the appointment of one Arun KumarMishra to the Uttar Pradesh State Industrial DevelopmentCorporation Ltd (UPSIDC). He was being represented byBhushan, one among the other advocates before him. This

Photos: Anil Shakya

FOCUS/ fraud case/shanti bhushan


heard by some other bench. The applicationwas rejected for being thoroughly improperand lacking in substance. On February 21,the matter again came up before the bench,but was filed by another counsel, SiddharthaSingh. But after he saw the contents of theearlier application and the order of the chiefjustice, he himself withdrew the petition. Buta new set of counsels came to the fore, KartikSeth and Anoop Trivedi. As records had notbeen produced by the university concerned,the vice-chancellor was asked to come tocourt. Realizing that his goose was cooked,Mishra apologized and said the February 21application was an ill-advised one. This pleawas placed before court after ShantiBhushan was engaged as Mishras counsel.

However, on March 11, 2014, Bhushanfiled an application stating that he wantedone of the judges of the bench, Arun Tandon,to recuse himself from the case. He went sofar as to file a personal affidavit to supportthe recuse application. The bench rejectedBhushans request.

But what irked the court was Bhushansabsence from court. It said: He did not havethe courage to press the application beforethe court and conveniently avoided attendingcourt proceedings after sometime. The courtmade it clear that it was not personally inter-ested in the hearing of any particular case.The oath of the office commands us to dojustice without fear or favor, it said. We holdthis recusal application is motivated with apurpose to avoid this court...It is, hereby,rejected.

The activism by courts in recent years wasalso evident when it clearly stated: Thecourt will not hesitate to do whatever is within its lawful powers to protect the inde-pendence of the judicial system of this coun-try, failing which the entire legal systemwould be brought to its knees. We have nodoubt that better sense shall prevail andcounsels shall keep in mind that, for ademocracy to work, independence of judici-ary is utmost and any attempt to browbeatthe court can never be in the larger interest ofa democracy.

This was indeed a nasty judicial cut on theso-called champions against corruption.

DOUBLE-FACED?Shanti Bhushan (extreme

right) at a meeting withAnna Hazare and Arvind

Kejriwal in June 2011

FOCUS/ fraud case/shanti bhushan

The case involved the appointment of ArunKumar Mishra to UPSIDC. He was

represented by Bhushan, who even filed apersonal affidavit for the recusal application.

appointment was challenged by one AnilKumar Verma, who filed a case againstUPSIDC and four others, including ArunKumar Mishra.

On January 29, 2014, the high schoolmarksheet and examination certificate ofMishra (Respondent 3) were producedbefore a division bench of the SC. But he wasasked to produce the original cross list of thehigh school examination of 1976 with refer-ence to the roll number. At the same time,Awadh University, from where Mishra grad-uated, was asked to produce the cross list ofthe B Tech examination for 1983. The hear-ing was posted for February 5, 2014.

But from the time the case started, Mishraand his advocates tried to get the case heardthrough some other bench as they felt thepresent one was not favorable to them. Thesequence of events shows how persistentMishra was.

DELAYING TACTICSOn February 12, 2014, Mishras first advo-cate, Shishir Prakash, made an applicationbefore the chief justice that the petition be IL


Suspended BCCIpresident N Srinivasan israther thick-skinned.He asked the SupremeCourt that he be givenback his post, as theMukul MudgalCommittee, probingspot fixing and betting controversy in IPL2013, was taking toomuch time to wind upits report. But this didnot cut ice with theSupreme Court.Srinivasan pleadedthat he needed to be inthe chair for signingthe accounts as BCCI elections were round

the corner. Turning down his

request, a two-judgebench felt thatSrinivasans job athand was not that critical for the court toreinstate him, and heneeded to wait tillabsolved of all chargesby the panel.

The bench, censuring the panel,asked it to completethe probe as quickly aspossible. It extendedits tenure by twomonths. Srinivasanwas forced to stepdown as BCCI president in March.

No to Srinivasan

Illustrations: Udayshankar

After NarendraModis insistenceon fast-trackcourts to decide criminalcases against politicians,and the Supreme Courtscontention that such casescant be separated fromothers in the same category, the ball is back in the centers court.

A five-judge bench,while dealing with a PILseeking removal ofchargesheeted ministers,has put the onus on theprime minister or chiefministers not to includetainted MPs or MLAs,against whom chargeshave been framed by a

trail court in a criminal orcorruption case, as ministers. As a trustee ofthe constitution, the primeminister was expected touphold its propriety, thebench said.

As of now, there is noconstitutional provisionthat debars the entry ofimmoral politicians on thelist of ministers. But thecourt refrained from adding a disqualificationclause to Article 75, andleft it to the wisdom of theprime minister or chiefministers to exercise theirdiscretion on the matterfor upholding morality andgood governance.

Onus on center

SUPREME COURT


SUPREME COURT

Now it is armys turnThe full-blown controversy over the2011 Jorhat dacoityincident that had almosthalted Dalbir Singh Suhags(now army chief) elevationas head of the armys eastern command is back inthe limelight. The SupremeCourt, while taking up apetition from Renu Gogoi,roped in the Ministry ofDefense, Assam govern-ment, army headquarters,Suhag and the CBI as par-ties to the whole affair. Italso sought responses fromthe center and Assam gov-ernment on the PILsdemand for a CBI inquiryinto the purported crime.

The alleged robbery tookplace at Gogois house inJorhat, Assam, onDecember 21, 2011, underthe so-called intelligenceoperation by the Armys 3Corps Intelligence andSurveillance Unit. The PILpointed out that no actionwas taken after an FIR wasfiled by Renus husbandafter cash and valuablesworth several lakhs wereallegedly looted. It pleadedaction against senior officers, Eastern Command,at that time, includingGeneral Suhag, who wasthen the head of GOC 3Corps, for interfering inprobe to shield the guilty.

The apex court was facedwith a strange situationrecently: breaking ofdecorum by advocates while putting forth their arguments on the National JudicialAppointments Commission Bill. They tried to attract theattention of the concerned benchby speaking out of turn andbeing too loud and provocativewhile expressing their points ofview. Things came to such a passthat the three-judge bench statedthat probably it was time theapex court started a course onbasic etiquette in courts.

A casefor correctbehavior


THE armys so-called strict and fair court martialprocess came under the scrutiny of the SupremeCourt. It took a dim view of the fact that the armyhad let off senior army officers involved in illegalselling of weapons with just a reprimand or a paltryfine, while dismissing cadets for unruly behavior.

The apex court pointed out the systemic pitfallswhile hearing a 2007 PIL that alleged that aweapons racket was managed by some army officersof the South Western Command in the border districts of Rajasthan.

Aghast at the casual way such a scam was handled, a two-judge bench berated the center andthe army, and asked the government to explain within two weeks why such cases should not belooked afresh to hand out harsher punishment.

For a fair trial

WHILE the media claims it must go the whole hogin covering criminal incidents and related court proceedings under the right to freedom of speechand expression, the accused take objections thatunbridled reporting damages their reputation andinfringes upon their right to privacy. Lost in this dinare the rights of victims.

The Supreme Court took up cudgels on behalf ofvictims who are often at various risks due to theunrestricted flow of information in the publicdomain. A two-judge bench asked the center, statesand UTs to share their regulatory mechanisms,whether existing or proposed, within six weeks, sothat it could figure out the grey areas and framelaws accordingly.

Fighting for victims

THOSE who disapprove of capital punishment willbe gladdened by the Supreme Court considerablynarrowing down the scope of death penalty.

A five-judge constitution bench, in a majorityview, ruled that those sentenced to death can seek areview of the judgment from a three-judge bench(as opposed to two-judge bench earlier), and theproceedings will take place in an open court, unlikein the judges chamber before (without hearing outthe petitioners lawyers).

The phenomenal judgment is premised on theneed to ensure that the trial is just, fair and reasonable, and to rectify errors, if any, that mayhave influenced the initial judgment.

Another chance to life

Justice HL Dattu will take over from Justice RMLodha as the 42nd chief justice of India fromSeptember 28, 2014. He will remain in office for 14months and retire on December 2, 2015. Justice Lodhawill retire on September 27, 2014. Dattu joined theSupreme Court as a judge in December 2008.

Dattu appointednext CJI

Public InterestLitigations (PILs) area remarkable tool forseeking justice from thejudiciary on issues thataffect the public at large.But it has its pitfalls.

There have been manyoccasions when frivolousand irresponsible PILs haveattracted the courts attention. Petitioners havegone to court for all otherreasons than public interest. One such person,who is a regular petitionerand an advocate, was in aspot after he himself arguedon his PIL, dressed as a

lawyer, seeking the apexcourts direction to the center to find out whereSubhas Chandra Bose was.

A three-judge benchpromptly dismissed the PILand slapped a fine of `onelakh on him for wasting thecourts time on a hopelessand frivolous plea. It evengave a dressing down to theadvocate for breaking rulesby appearing in a lawyersuniform, when he was petitioner in person.However, it reduced theamount to `50,000 after thepetitioner admitted his guiltand pleaded for mercy.

No trivial PILs please


The Ghaziabad sessions court hadissued a death warrant againstSurinder Koli, who was involvedin the Nithari serial murders. However,he seems to have found a temporaryreprieve as of now, since the date of deathsentence, originally fixed for September12, has now been deferred to October 29by the Supreme Court. Kolis mercy peti-tion was earlier rejected by PresidentPranab Mukherjee on July 27.

Koli and his employer MoninderSingh Pandher was charged with serialkilling of children in Nithari, near Delhi,but Pandher was acquitted by theAllahabad High Court.

COURTS

The Delhi High Court recentlyruled that minors rescuedduring anti-trafficking raidsare victims and not offenders to beprosecuted under the ImmoralTrafficking (IT) Act.

The high courts legal servicescommittee had challenged a 2009

order by a metropolitan magistrateover the custody of two minors, whowere recovered by the police anddealt with under the IT Act.

The high court ruled that if achild, who is incapable of giving con-sent, is found begging, working, sex-ually exploited or vulnerable to drug

abuse or trafficking, he or she willnot be treated as an offender, butonly as victim.

Moreover, if such a child is below18 years of age and is rescued by thepolice under the IT Act, he or shewill be immediately transferred tothe Child Welfare Committee.

Gagging the media

ABangalore courts temporaryorder banning some mediaoutlets in Karnataka fromreporting on the rape and cheatingallegations made by a Kannadaactress against Karthik Gowda, theson of Union Railway MinisterSadananda Gowda, was yet anoth-er case of the judiciary gaggingthe press.

The media has often underlinedthat the right to freedom and expres-sion offers it the privilege to followdevelopments in controversial casesand for it to report objectively. Butaccused persons have often soughtthe help of the judiciary to throttlethe media by invoking the Right to Privacy.

Several cases in the past havedrawn the attention of the judiciaryon this issue. In the Nira Radia case,Ratan Tata had approached theSupreme Court protesting that hisprivate conversations with her werein public domain because the mediaviolated his privacy rights.

Similarly, in the Justice Swatan-ter Kumar case, which related tosexual harassment, the Delhi HighCourton a plea filed by Kumar, aformer Supreme Court judgehadrestricted the media from reportingallegations against him.

In yet another case, the then SP

leader Amar Singh had filed a peti-tion in the apex court after some ofhis telephone conversations weretapped and circulated. The courtfirst restrained the media from pub-lishing the contents of the recordedphone calls but later, lifted the ban.

The important aspect is that aperson cant be deemed guilty unlessthe courts decide, and therefore, themedia should keep away from dis-closing information, especially inhigh-profile cases, as it may influ-ence the image of these people.

The judiciary should strike a bal-ance between safeguarding therights to privacy of an individualand shackling the media on infor-mation dissemination.

Death warrant forNithari killer

HC: Trafficked kids not offenders


New post raises eyebrows

Former Chief Justice of India, P Satha-sivam was sworn in as the governor ofKerala early this month. His appoint-ment triggered a controversy, especially sinceJustice Sathasivam had quashed chargesheetsagainst Amit Shah in the Sohrabuddinencounter. With the government being thelargest litigant in courts today and the subse-quent appointment of numerous SupremeCourt judges in high-profile positions afterthey retire, the independence of the judiciaryhas come under the scanner.

Those against the appointment feel thatthe lure of prime jobs from the governmentoften pushes top judges to curry favor withthe government of the day. So, they should bebarred from taking up constitutional posts.Now, it remains to be seen if the new governorwill act in a fair manner.

More FCTs forspeedy justice

The BJP government has drawn up a proposal to set up1,800 fast track courts (FCTs) across the country to speedup the delivery of justice. The law ministry approached the14th Finance Commission for the same, since the latter allocatesresources for setting up court infrastructure. As of March 2014,976 FCTs were operational in the country. Setting up of FCTs is theresponsibility of the state government unless otherwise specifiedby the central government through a special scheme.

Prisons across India are chock-a-bloc with people whoare yet to face trial in various offences. Often, theyend up spending more time in jails than they wouldactually have, had they been convicted for their respectiveoffenses. To make matters worse, they do not have theresources to furnish sureties or bail bonds, and being illit-erate or underprivileged, have no clue about their rights.

Concerned about this lacuna in the judicial system, theapex court asked lower judicial officers to find out prisonerswho have already served half the maximum period pre-scribed by law for an alleged offense and release themimpromptu. Strangely, the same provision exists in thecriminal procedure code (Section 436A), but was notimplemented.

The court ordered that the exercise be started fromOctober 1 and completed within two months.

Cleansing the system

Illustrations: Amitava Sen


The NewVICTIMSthe abuse of section 498a relating to dowryhas seen many an innocent husband land-

ing in jail. but with the supreme court forbid-ding automatic arrest, succor is in sight

By Bhavdeep Kang

Awoman is murdered fordowry every hour inIndiaa widely quotedstatistic backed by amind-googling numberof news reports onwomen brutally killed

by in-laws or husbands in just the last threemonths. In conjunction with the almost 1.2lakh cases of domestic violence lodged at policestations by battered women in 2013, it wouldappear that wives do, indeed, have a hard time.And yet, it seems the sandal is on the otherfootmen too are being subjected to extortion,humiliation, emotional abuse and imprison-ment by disgruntled wives.

So rampant is the abuse of Section 498A ofthe Indian Penal Code, relating to harassmentfor dowry, that the Supreme Court (SC)stepped in with a directive on July 2, forbid-ding automatic arrest in such cases. It also readthe police a homily on misuse of this provision.

LEAD/ anti-dowry laws

Section 498-A (has)...dubious place of prideamongst the provisions that are used asweapons rather than a shield by disgruntledwives. The simplest way to harass is to get thehusband and his relatives arrested under thisprovision. In a number of cases, bedriddengrandfathers and grandmothers of the hus-bands and their sisters living abroad fordecades are arrested.

LEFT IN THE LURCHHow does it work? Lets look at a case fromMumbai. The wedding over, the newlywedschecked into to a hotel to rest before leavingfor the honeymoon. But the bride had otherplans. Three hours after leaving the shaadi kamandap, she informed her husband that shehadnt wanted to marry him in the first placeand departed (with a substantial amount ofjewellery), leaving the red-faced groom to facehis family, friends and colleagues.

Worse was to come. After several weeks, he


Illustrations: Lalit Khitoliya

ond plunge, only to find that his bride wasschizophrenic and his in-laws were bullyinghimon the threat of arrest for domestic vio-lenceto sign over his properties to them.

In a bizarre twist to the standard pay-up-or-Ill-put-you-in-jail plot, a Bangalore-basedInfosys executive murdered his wife in 2010,claiming she had threatened to file a dowryharassment case against him, which wouldrender his aged parents vulnerable to arrest.

WELCOME ORDERIt was, therefore, natural that widespread reliefgreeted the SC directive of July 2. The case thatcaused the court to give this order was a

applied for an annulment on grounds of deser-tion. Two days later, a contingent of Mumbaipolice appeared on his doorstep to arrest himon grounds of harassment for dowry anddomestic violence.

The grooms story would have struck achord with V (name withheld), who married apretty Kolkata girl in good faith, only to be toldshe was in love with someone else. Unlike thefilm Woh Saat Din, in which the reluctant bridefalls for her unprepossessing husband anddumps her handsome lover, she left him for herboyfriend within a week. To add insult toinjury, she charged him and his entire clan withharassment for dowry. Only a large financialsettlement staved off arrest.

Lawyers have a fund of such stories: aHaryana boy who paid `45 lakh to his estra-nged wife to secure the release of his motherfrom jail; an MNC executive who spent a hor-rifying night in a police lock-up before hecoughed up money; a divorcee who took a sec-


In quite a number of cases, bedridden grandfathers and grandmothers of the husband and even sisters living abroad fordecades are arrested.


MUCH-ABUSED SECTIONThe courts, too, had made the same suggestionin a number of such cases. The high courts ofDelhi, Tamil Nadu and Andhra Pradesh had allanimadverted against knee-jerk arrests. TheDelhi High Court in 2003 observed that 498Awas a much abused provision and exploited bythe police and the victims to the level ofabsurdity...unless the allegations are of a seri-ous nature and the highest magnitude, arrestshould always be avoided.

Mumbai High Court lawyer AbhishekKhare says the low conviction rate in 498Acases bears out his own experiencehavinghandled over a hundred divorcesthat 95 percent are fabricated. Some states, he says, areworse than others. The police go after the hus-band and family either out of fear of stricturesfrom the court, pressure by NGOs or to makemoney off the accused.

Naturally, beleaguered husbands havebanded together to protest. A host of websitesoffer advice to husbands charged under 498Aor domestic violence: savefamily.in, saveindi-anfamily.org, menrightsindia.net, rakshak-foundation.org, indianfamily.net and 498a.org,to name a few. A Guide to Surviving IPC 498A is an oft-downloaded document. Support

standard one: young Arnesh Kumars wife hadaccused his parents of demanding dowry incash and kind and kicking her out when shedid not comply. Hed applied for anticipatorybail, which was rejected both by the sessionsand high court, and filed a special leave peti-tion in the SC.

The SC pointed out that almost two lakhpeople had been arrested in 2012 under thesection, of which a quarter were women(mothers, sisters, etc, of the accused). Going bythe statistics, it would appear that harassmentfor dowry is the third most common crime inthe country. Whats more, the rate of charge-sheeting in such cases is close to 94 per cent,while the conviction rate is only 15 per cent.Extrapolating this, the SC said that of the3,72,706 cases pending trial, 3,17,000 werelikely to result in acquittal.

So, instead of knee-jerk arrests, the policeare now required to secure a magistratesapproval for detention on the basis of Section41 of the CrPC, which governs arrest without awarrant. If this procedure is not followed, thepolice personnel concerned are themselvesliable to be prosecuted.

In the 15 years preceding this SC verdict, aseries of reports pointing to misuse of theDowry Act had come out. In November 2000,the legal adviser to the Delhi Commissioner ofPolice suggested that Section 498A was beingmisused by women to harass their husbands.The Malimath Committee on Criminal JusticeSystem reforms in 2003 observed that the pro-vision helps neither the wife nor the husband.The offense being non-bailable and non-com-poundable makes an innocent person undergostigmatization and hardship. Heartless provi-sions...operate against reconciliations. TheLaw Commission in 2012 said the offensesunder this provision should be made com-poundable and arrest resorted to only in casesof serious magnitude.

If the gas cylinder is exhausted anddelivery of the new one delayed,technically the man can be accusedof abuse.

-- Rajesh Vakharia, president, Save Indian Family Foundation


National Crime Records Bureau recorded8,233 dowry deaths in 2012, 8,618 in 2011,8,391 in 2010 and 8,383 in 2009.

CAUTIOUS STANCESignificantly, the July 2 SC judgement evokedcautious responses from gender activists andwomen lawyers. By and large, they took anuanced stand, admitting that the law hadbeen misused by a section of womeneducat-ed, aware and generally, middle-class. Whatthey objected to was the judgments character-ization of complainants as disgruntled wives.Senior lawyers like Malvika Rajkotia, PinkyAnand and Rebecca John observed that therewere ample instances of abuse, but warnedagainst diluting the law, as harassment ofwomen was an ugly reality. Besides, every lawhas the potential to be misused.

The flaw, then, lies in the implementation ofthe law. Supreme Court lawyer Santosh Kumarpoints out that the accused in such cases is nota habitual offender. The husband is not ahardened criminal with a history-sheet, so the

police should not treat him as one. The policecan refrain from arresting the man and hisfamily while investigating the case, he says,because theres ample legal protection for thewoman. She has the right of residence and isnot being thrown out into the street and onceshe has filed a complaint, will have a secureenvironment in the home.

Often, Section 498A and the DomesticViolence (DV) Act come into play during acri-monious divorce proceedings. Canny lawyersmake it a point to inform the police authorities,the state Human Rights Commission and theState Commission for Women before filing fordivorce. In some cases, husbands have avoidedarrest by pointing out that their divorce petition preceded the dowry harassment complaint.

A case in point is that of Deepinder

groups are full of advice on how to avoid arrestunder this section: grooms are warned to beobservant and keep an eye out for symptomsof impending litigation.

Khare says theres really no way of avoidingarrest, except to run away and then file foranticipatory bail. Exactly what S (name with-held) did. He returned home from work to findhis wife of four years on the landing, accusinghim of domestic violence and dowry demands,within the hearing of his neighbors.Embarrassed and perplexed, he slunk into hisapartment and called a friend. Pack a tooth-brush and leave, he was advised. Sure enough,his office called the next morning to say thatthe police were looking for him in a dowryharassment case. He then approached a seniorpolice officer he knew, but was told it was allbut impossible to avoid arrest. But I didnt doanything, he protested. Pat came the res-ponse: You got married, didnt you?

On the flip side is the continuing harass-ment, even murder, of women for dowry. Theseare samples from the month of August: awoman tied to a tree in Chhindwara and burntby her in-laws; dowry death protestors blocktraffic in NOIDA; a former Delhi MLA and hisfamily arrested in a dowry death case. The

Almost two lakh people were arrested in2012 under the section. It would appearthat harassment for dowry is the third mostcommon crime in the country.


Hooda, son of Haryana chief minister BSHooda, who was able to show that he had filedfor divorce before his wife filed a complaintagainst him and his family.

The DV Act has also come in for criticism,not because of its intent but the wide definitionof what constitutes violence. Verbal, emotionaland economic abuse fall within the purview ofthe act and are described in such general termsthat any domestic dispute or denial of expendi-turewhether deliberate or inadvertentandperceived shortfall in domestic goods, canamount to abuse.

Rajesh Vakharia, who runs the Save IndianFamily Foundation, essentially a rights ofmen organization, says: The SC itself hasdescribed the law as clumsily drafted...if the gascylinder is exhausted and delivery of the newone delayed, technically the man can be

accused of abuse. He says the law is discrimi-natory because it defines the home solely inrelation to the wife. What about the otherwomen in the homethe mother-in-law, thesisters-in-law?

In his vast experience of acrimoniousdivorces, he says: I find that the police enter-tain complaints from wives, but not mothers-in-law and unmarried girls. The moment awoman becomes a mother-in-law, she is trans-figured from potential victim to potentialdemon. The National Commission forWomen, he complains, functions like theNational Commission for Wives.

The SC judgement will surely bring respiteto beleaguered husbands. Courts have passedstrictures before. But the police have failed torespond. Let us hope that this time, they followthe letter of the law, says Vakharia.

while laws are meant to provide succor, their misuse can have atorturous effect on victims and their families By Vishwas Kumar

MISUSE of dowrylaws has seenmany an inno-cent men beingframed. Worse, insome cases, eventhe judiciary

sides with the womans family, leaving herhusband tortured and at wits end. Take thecase of a newlywed couple whose lives wereoverturned due to the misuse of such laws bythe girls family. All it took was a suggestionby the boys parents that the couple purchasea house jointly in their name. Could this becalled dowry harassment? Prima-facie, itisnt. But who was to tell this to theMaharashtra police, who not only arrestedthe boy, a software engineer, but also charge-sheeted him.


JUDICIARY FOUND WANTINGBut worse was to follow. Even the judiciary,from whom one expects justice, was no bet-ter. First, the metropolitan magistrate (MM)upheld the polices case, brushing aside allprotests from the accused and his parents.Then, the additional sessions judge (ASJ) tooagreed with the MM and directed him toundergo trial to prove his innocence. Finally,when the matter reached the high court, theshocked lady judge quashed the criminal caseagainst the accused. She also passed stric-tures against the police and castigated thejudicial officials for non-application of theirmind while passing orders.

The judge severely criticized the girls par-ents for conspiring to defame and humiliatethe accused and his family.

Sadly, there have been many cases of

CASE STUDIES


parents also managed to obtain anticipatorybail from the high court.

But worse was to follow. In February2009, the police filed a chargesheet underSections 498A (anti-dowry), 406 (breach oftrust), 506 (criminal intimidation), 323 (vol-untarily causing hurt), 34 (common inten-tion) of the IPC, along with Sections 3 and 4of the Dowry Prohibition Act.

Subsequently, Kaushiks lawyer, AnujKumar Padhy, filed a discharge petition, firstbefore the MM, then the ASJ and then, theMumbai High Court, alleging that the Punepolice had acted arbitrarily by ignoring theirown Occurrence Report but later did so on acooked up charge by the Ujjain police. Heargued that the Pune police did not register acriminal case when an alleged crime tookplace within its jurisdiction. His petitionswere rejected by the MM and ASJ, but later,the Mumbai High Court accepted it.

Thankfully for Kaushik, Justice SadhanaS Jadhav of the Mumbai High Court quashedthe case against him this July. In her scathingjudgment, she said: In the present case, itappears that no serious allegations weremade at Chaturshrunghi Police Stationwhich would even warrant prosecutionunder Section 498A and therefore, in allprobabilities, the police officers had notcalled upon the Petitioner No. 3 (Neeraj

abuse of dowry laws. In 2008, two softwareengineers, Neeraj Kaushik and MadhvikaJoshi, fell in love and married. They lived inPune where Kaushik was working with TataConsultancy Services (TCS).

The marriage, however, lasted only fivemonths, as the couple couldnt reconcile theirdifferences. On June 17, 2008, Joshi filed acomplaint with Chaturshrunghi police sta-tion in Pune, alleging physical assault by herhusband. The police requested her to under-go the mandatory medical examination in anassault case. But she refused. An examinationwould have helped establish the gravity of theinjury and under which section of the IndianPenal Code (IPC) the crime fell. Since thealleged offense, a slap, was a non-cognizableoffense (non-serious in nature), the policedid not immediately register a case.

The next day, Joshi reached her hometown in Ujjain, Madhya Pradesh, and lodgeda complaint with the local police. Surpri-singly, the police immediately registered acriminal case under the provision of ZeroFIR (can be registered without jurisdiction),after she took a medical examination. Themedical certificate indicated that there werebruises on her left eye, right arm, left scapu-lar area and contusion over the left thigh.

Since the offense had taken place withinthe jurisdiction of the Pune police, the Ujjainpolice transferred the case there. And on July4, Chaturshrunghi police station filed a freshFIR (No 297/08) based on the Zero FIR for-warded by the Ujjain police, overlooking itsown Occurrence Report, in which the policehad refused to register a case.

WRONGFUL DETENTIONThe Pune police, then, swung into action andat midnight on September 23, arrestedKaushik. They also swooped down to Delhito arrest his father, Vinod Kaushik, andmother, Uma, but failed to do so. Three dayslater, they brought a handcuffed Kaushik tothe TCS office on the pretext of seizing hispassport. After humiliating him, theydetained him in police custody for anotherfive days on the grounds of recovering strid-han (dowry) items, but they never came toDelhi to do so. After eight days in police cus-tody, the trial court released Kaushik on bailon October 1, 2008. Two months later, his

BLISSFUL DAYSNeeraj Kaushik andMadhvika Joshi during their honeymoon inMussoorie

LEAD/ anti-dowry laws / case studies


Kaushik). At the same time, it cannot beignored that Petitioner No. 3 was in fact,arrested by the police in his office and parad-ed as if he was a hardened criminal.

The police machinery had not onlystopped at that, but sought police custody onthe ground of recovery of the passport of thecomplainant and other articles. The high-handedness and influence of the com-plainant party was writ large on the face ofthe record and the police had detainedPetitioner No. 3 in custody without verifica-tion of the facts. It is a matter of record thatPetitioner No. 3 had to undergo incarcera-tion for a week because of the fact that he wasarrested unaware. The Petitioner No. 3 wasarrested on 26th September, 2008, andreleased on bail on 1/10/2008. The Peti-tioner No. 3 was exposed to social obloquy atthe place of service since he was arrested inthe office, i.e. in the TCS office, and washandcuffed.

All this would clearly show that the com-plainant was seeking personal vendetta with-out there being any sufficient grounds.

Justice Jadhav castigated Joshis familyfor misusing the provisions of anti-dowrylaws in connivance with police officials tounleash vendetta against her estranged hus-band and in-laws.

MOTIVATED ACCUSATIONSJustice Jadhav also cast doubts about exactlywhat harassment Joshi had undergone. Shecited Blacks Law Dictionary (widely usedlaw dictionary), which defines harassmentas words, conduct, or action (usually repeat-ed or persistent) that being directed at a spe-cific person, annoys, alarms or causes sub-stantial emotional distress in that person andserves no legitimate purpose.

In the present case, she said, it could notbe said that Petitioner No.3 was so persistentin his conduct that it could cause harassmentto the first informant (Malavika Joshi). Thevery fact that she refused to be subjected tomedical examination at Pune would showthat she had no apparent injuries, the judgesaid. The police officer at Chaturshrunghipolice station would have definitely noticedthe bruises if it had appeared on her eyes andother features. Therefore, there was a doubtas to whether the said injury certificate wasconcocted at a place where her parents lived,said Jadhav.

She also clarified what could qualify asdowry harassment. Section 498A of the IPCcontemplates harassment of such a nature,which would coerce the wife or her relativesto meet any unlawful demand for any proper-ty or valuable security or to drive the womanto commit suicide or to cause grave injury ordanger to life, limb or health. Recitals of theFIR in this case only disclose a stray incidentwhich had occurred due to a verbal alterca-tion between the husband and wife whichwould be a natural affair between couples.Difference of opinion or verbal alter-cation...cannot be termed as harassment orcruelty, said the judgment.

It also highlighted the grave misuse ofdowry laws. In the present case, the disgrun-tled wife filed the proceedings under Section498A, 406, 323 of the IPC. Thereafter, a peti-tion was filed under the Protection ofWomen from Domestic Violence Act, 2005.And then, proceedings were initiated in thefamily court. Hence, the husband and his rel-atives had to go through legal proceedings inthe same case in three different courts.

Talk about a marriage made in hell.

JusticeSadhana

Jadhav of theMumbai HighCourt came toNeerajs rescue

by seeingthrough

Madhvikasmalafide

intentions.

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NDIA EGAL L STORIES THAT COUNT Medical Crimes: Can victims ever get justice?

September 15, 2014 `100

www.indialegalonline.com

IThe putrefying Ganges is Indias national disgrace. Can Modi deliver on his

campaign promise to revive the worlds holiest river?

Baby-killer Sisters:In cold blood

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DONTDUMP

THISIDEA!

the bjp has embarkedon an ingenious

projectprovidingdecent defecation

facilities to dalitsto garner more

sc votes. and it may just work

By Vishwas Kumar

POLITICS/ modi toilets

THERE is more than meets the eye as far astoilet politics is concerned. Prime MinisterNarendra Modis ambitious Swach Bharat(SB) scheme to provide toilets for all ruralhouseholds till 2019 is not only aimed atstrengthening his connect with the ruralpopulation, especially dalits and women,

but is being done with an eye on future elections. Though ithas been officially claimed that the 2019 deadline for imple-mentation of the scheme is meant to mark the 150th anniver-sary of Mahatma Gandhis birthday, its main aim is to reapelectoral dividends in the general election scheduled that year.

The BJP seems to have taken a leaf out UPA-Is success inthe 2009 general elections, when the flagship rural employ-ment scheme, Mahatma Gandhi National Rural EmploymentGuarantee Act (MNREGA), was launched.

But what was the reason for a Hindutva icon and corporate

According to a report by the NationalConfederation of Dalit Organizations, nearly48 percent of Indians have no access to toi-lets and are forced to defecate in the open. Inrural areas, this percentage goes up to 60percent. While 42.3 percent of non-dalithouseholds have toilets, in the case of dalits,it is just 23.7 percent. That means thataround 77 percent of dalits will directly ben-efit from the SB scheme between 2014-19.Even the budgetary allocation for SB shows atilt towards dalits. Out of the total `4,260crore allocated for this scheme, `938 crore isfor SCs and `426 crore for tribals.

Dalit activists, however, remain scepticalof the governments intent because there isno effective strategy to improve their life.

MAKING HYGIENE THE BUZZWORD(Left) School children showing placards at the inauguration of 108 toilets in Badaun, as part of Toiletfor Every House campaign of Sulabh International;(Below) Dr Bindeshwar Pathak, Founder of SulabhInternational, inaugurating the toilets along with PunamYadav, Badaun District Panchayat President

Indias favorite politician to suddenly startthinking of rural and dalit voters? Theanswer lies in the stupendous electoral victo-ry forged by the BJP in the 2014 elections.Modi, unlike any BJP leader, was able to cutthrough the caste-ridden politics of the Hindiheartland. Often seen as catering to urban,middle class voters, he was now able to wooeven fringe segments like dalits and women.

It makes sense, considering the size of thiselectorate. Some 72 percent of Indias 1.22billion population is rural. Out of these,Scheduled Castes or dalits constitute 16.6percent (201.4 million), while dalit womennumber 34.8 million. For both these sections,the lack of toilets is an emotive issue andModi is astute enough to understand that.

Photos: UNI


ing in 282 seats. In 2009, it only got 18.8 per-cent of the votes and 116 seats. So who werethe new voters the party added? An analysisof election results shows that it attractedmany dalit and women voters.

Analyzing the electoral gains, RahulVerma of Lokniti-CSDS wrote in The Hinduthat one in every four dalits voted for the BJPin comparison to one in 10 in the post-1990era. the BJP has surpassed both theCongress and the BSP (Bahujan Samaj Party)in attracting a larger share of dalit votes. TheBJPs dalit vote-base in this election is largelythe upwardly mobile sections (urban, educat-ed, middle classes, with high media expo-sure), he wrote.

And UP had a big hand to play in this, asit has the largest dalit population in India. Inthe 2014 elections, the BJP got 42.3 percentof the votes in UP and 71 seats out of 80.Compare this with 17.5 percent and 10 seatsin 2009. The additional 25 percent votes thatthe BJP added to its vote bank came fromdalits (minus Jatav-Chamar, which remainedwith the BSP).

A similar trend is reflected in Bihar,another state where the BJP performedexceedingly well. Some 22 percent of votersin Bihar belong to economically backwardcastes and dalits. The BJP and its ally, theLJP, led by dalit leader Ram Vilas Paswan,managed to corner 51 percent of the votes,while their rival, JDU, led by Nitish Kumar,got only 35 percent. Nitish resigned as BiharCM and anointed Jitin Ram Manjhi, a dalit,as his successor. This again shows the impor-tant role dalits will play in national politics.

Encouraged by the election results, theBJPs think-tank, comprising of Modi, partychief Amit Shah and RSS chief MohanBhagwat, chalked out a strategy to activelywoo dalits. Bhagwats recent utterance onunity among Hindus is being seen in thiscontext. For the next five years, we have towork with the aim of bringing equalityamong all Hindus in the country. All Hindusshould be drinking water at one place, shouldbe praying at one place and after their death,their bodies should be burnt at the sameplace, he recently said in Mumbai.

A similar keenness to woo dalits was evi-dent in BJPs stand during the recent

N Paul Divakar, general secretary, NationalCampaign on Dalit Human Rights, says: Itis great that the PM has initiated the SwachBharat campaign and we welcome the deci-sion. It is long overdue. However, the struc-tural, systemic and systematic exclusionarypractices that exist in the country also needto be addressed. this appears as a materialsolution that does not take into account thepractices of untouchability.

He adds that merely building toilets is notenough. They have to be maintained andcleaned, and inevitably, dalits would beemployed to do so, perpetuating caste-baseddiscrimination and exclusion, he stresses.

CAPTIVE VOTE-BANKIt was the 2014 elections that made the BJPlook at dalits as a vote-bank. In the polls, itmanaged to garner 31 percent votes, result-

For ensuring hygiene,waste management and

sanitation across thenation, a Swach Bharat

Mission will be launched.This will be our tribute toMahatma Gandhi on his

150th birth anniversary tobe celebrated in the

year 2019.

PRESIDENT PRANAB MUKHERJEES address to parliament in June 2014

The need for sanitation is ofutmost importance... The

task of total sanitation cannot be achieved without

the support of all. The government intends to coverevery household with total

sanitation by 2019, the 150thyear of the birth anniversaryof Mahatma Gandhi through

Swach Bharat Abhiyan

FINANCE MINISTER ARUN JAITLEYSbudget speech

Clean Sweep?

POLITICS/ modi toilets


Muzaffarnagar riots and other instances ofcommunal tension in Uttar Pradesh in therecent months, especially after the BJP cameto power (see box: Communal conundrum).

SOCIAL ENGINEERINGWhy has the BJP chosen western UP as thearena for its dalit appeasement policy? Theanswer lies in the areas demographic compo-sition and social structure. Dalits andMuslims equally own around 25 percent ofthe land here. Unlike most parts of ruralIndia, Muslims in western UP own land.Many of them are Hindu converts, whohavent forgotten their caste origins, eventhough Islam is supposed to be egalitarian.Their attitude towards dalits matches that oftheir Hindu brethren: oppressive, exploita-tive and supercilious. This is precisely theobstacle the BSP faces in attempting aMuslim-dalit consolidation, Ashraf wrote.

Meanwhile, the SP government is provid-ing tactical support to the BJPs campaign forits own electoral dividends. Since it sees theBSP as a bigger political enemy, it ensuresthat the administration either remains neu-tral or leans towards the minority communi-ty in these clashes. Both the SP and the BJP

are hand-in-glove to cut out the BSP, which,in the past, has successfully forged dalit-Muslim unity. If Muslims come to the SP andthe majority of dalits goes to the BJP, the BSPwill not able to get sufficient seats based ontheir own numerical strength of the Jatav-Chamar caste, explains a senior bureaucratin the home ministry, who is responsible formonitoring UPs law and order situation. Itis a well chalked-out strategy to attempt anew social engineering in a politically crucialstate where either the BJP or the SP willremain in power, he adds.

Dalit activists, however, emphasize thatthe government needs to do less politics andmore of implementation of existing schemesto improve their lives. The 2014-15 budgetallocated `50,548.16 crore for SCs and`32,386.84 crore for STs. These plans werein existence for the last 30 years. However,these funds have been plagued by variousissues, like non-implementation, diversionand notional allocations. All this needs tochange. And for this, a push for effectiveimplementation through investing in sche-mes for education, land and skill develop-ment is needed, argues Divakar.

The toilet test for Modi has begun.

Indias population: 1.22billionScheduled Caste population:201.4 millionPopulation of dalit women:34.8 millionPercentage of rural Indianswith no access to toilets: 60Percentage of non-dalithouseholds with toilets:42.3Percentage of dalits households with toilets:23.7 Percentage of dalits who willdirectly benefit from theSwach Bharat schemebetween 2014-19: 77Total allocation for SwachBharat scheme: `4,260croreAllocation for dalits and tribals under this scheme:`938 crore & `426crore respectively

Numbing Numbers

Communal conundrum

IL

The aggressive BJP-RSS stance to woo dalits is causing socialschisms, leading to communal tensions in rural areas. TheDecember Muzaffarnagar riots were a case in point. It started asa local clash between dalits and Muslims over a petty issue. Theparty took up cudgels on behalf of dalits, while the SP-led UPgovernment kept quiet, leading to escalation of communal tensions in the whole of western UP.

The BJPs electoral success triggered Muzaffarnagar-typeriots elsewhere too. Within 10 weeks of the poll results on May16, 605 communal incidents happened in UP, of which 68involved Muslims and dalits. According to The Indian Express,over 70 percent of these took place around areas where assembly by-elections were to be held. Many of the flare-upswere over minor issues such as the use of loudspeakers inmasjids and temples. And the BJP always took up the case ofdalits, while the SP, BSP and Congress remained non-committal.

It is this appeasement of dalits that is the reason behind theBJPs attempt to rake-up the love-jehad issue. This is with

reference to Muslim boys enticing Hindu girls with the aim ofmarrying and converting them. In most cases, the girl is a dalit.This happened in Gaineridan village in Pilibhit on May 20. Here,a Muslim family allegedly took away by force a girl married to aJatav boy. Local BJP leaders intervened and demanded securityfor the Hindu family, causing tensions.

Political commentator Ajaz Ashraf wrote in scroll.in: The BJPand its allies have supplemented the traditional method ofHindutva mobilization with new strategies. Months beforeMuzaffarnagar erupted last year, Hindutva activists had beenharping on the alleged menace of love-jehad, a seemingly devious Muslim ploy to woo and marry Hindu girls after convert-ing them to Islam.


THE NATION/J&K/ bjp strategy

MISSION34 September 30, 2014

THE Modi government has a very clear strategy onKashmir. This relates to its handling of Pakistan, theHurriyat and Jammu & Kashmir (J&K) itself. Andthose calling the shots are Prime Minister NarendraModi and National Security Advisor (NSA) Ajit Doval.While earlier, the Ministry of External Affairs (MEA)was the moving force behind foreign policy, it is an

open secret that now it is Doval. It was his idea to call heads of SAARCnations for Modis swearing-in with a view to creating bonhomie amongneighbors and establishing the governments peacenik credentials.

CLEAR-CUT STRATEGYDoval is also credited with the new strategy on Pakistan, says a PMO insid-er. As a former spy-master, Doval depends on his decade-long experiencein fighting Pakistans proxy war and classified information passed to himby security and intelligence agencies, to decide the governments actions. Itwas on Dovals advice that the government called off the scheduled foreignsecretary-level talks with Pakistan, just three months after Pakistan PrimeMinister Nawaz Sharif made an unprecedented gesture in attendingModis swearing-in. Though the official reason given for this cancellationwas that Pakistan High Commissioner to India, Abdul Basit, had metHurriyat leaders, according to a PMO insider, this was Dovals doing.

HANDS-ON STRATEGYJ&K Chief Minister Omar

Abdullah welcomesPrime Minister Narendra

Modi on his arrival atJammu Airport in

early July

the saffron partys ambition to win 44seats in the forthcoming assembly pollsmay see the first hindu cm in the only muslim state in indiaBy Vishwas Kumar

POSSIBLE

If the boycott (called by Hurriyat) continues, the people of Kashmir would becontrolled from somewhere in Nagpur (RSSheadquarters) or Jhandewalan (RSS headquarters in Delhi).

Omar Abdullah, J&K chief ministerUNI


Some people even suggested that Modi tookthe decision at the behest of RSS hardliners,who are opposed to the governments softapproach towards Pakistan.

The carefully thought-out strategyextends to Kashmir too. The latest move tocorner Kashmirs separatist leaders is keepingin mind the crucial assembly elections inJ&K, scheduled for later this year. It is alsokeeping in mind the latest conflagration inPakistan, where its army chief, GeneralRaheel Sharif, has launched an offensiveagainst Sharif s democratically elected gov-ernment to gain control of its foreign affairs.

As news of Pakistans domestic crisis start-ed filtering in, Doval reportedly advised Modito seize the opportunity. Thats when foreignsecretary Sujatha Singh was asked to call up

Basit and tell him to cancel the invite toHurriyat leaders. The logic was that thePakistan government could not have agreedto such a request when it was under siegefrom the army. Dovals calculated decision tomake the Hurriyat leaders fall guys andPakistan as the villain to Indias efforts torestart the dialogue process, seemed to beworking. Both the Hurriyat and Pakistan arenow targeting Modis government.

The government needs this kind of out-cry to enthuse party workers in J&K, espe-cially in Hindu-dominated Jammu, where ithas launched a mission to win over 44 seats inthe 87-member assembly and thereby, chiefministership. The BJPs attempt to install thefirst Hindu chief minister in the only Muslim-dominated state in India has put local politi-cal players, including separatist leaders, in atight spot.

CAUGHT IN A QUANDARYTraditionally, the separatist leaders havealways boycotted J&K elections. They dontbelieve in the Indian constitution anddemand independence, both from India andPakistan. However, this time, the ground sit-uation is different and the separatists are nowcaught in a bind, as for the first time, the BJPhas emerged as the main contender for power.So, if they announce a poll boycott, it will onlyhelp the BJP gain more votes and if theydont, there could be a large voter turnoutwhich will negate their claims that mostKashmiris wants azadi (independence).

But the BJP also has to contend with thetwo main political parties in the statetheruling National Conference (NC) and thePeoples Democratic Party (PDP). The assem-bly seats are spread out across three geo-graphical areas based on different religiousidentities. Muslims dominate Kashmir Valley,which accounts for 46 seats, Hindus arestrong in 37 seats in Jammu region andBuddhists are dominant in four seats in Leh-Ladakh. To reach the half-mark, the BJP willneed 44 seats.

The partys internal feedback is that it hasa good chance of grabbing all 37 seats inJammu and four seats in Ladakh, which addsup to 41. To get three more seats for the mag-ical number of 44, the BJP has adopted mul-


It was on Dovals advice that the governmentcalled off the scheduled foreign secretary-level

talks with Pakistan, just three months afterNawaz Sharif attended Modis swearing-in.

2008 J&KRESULTS

BJP: 11CPM: 1Independents: 4Congress: 17JKDPN: 1NC: 28Panthers Party: 3PDP: 21PDF: 1

Jammu & Kashmir assembly seats

46

37

4SEATSSEATS

SEATSJAMMU

VALLEYLADAKH


tiple strategies. One is to provoke theHurriyat, whose influence only works in theValley, to announce a poll boycott and proac-tively implement it. It also wants Pakistan-based terrorist groups, all controlled andfunded by the Pakistan army, to issue threatsasking people not to participate in the elec-tion, like in the past. These twin factors willreduce voter turnout in the Valley, which, inthe 2008 election, was 51.66 percent.

WOOING PANDITSIn addition, the BJP has launched a massivedrive to enroll all eligible Kashmiri pandits inthe voter list and make arrangements forthem to cast their votes. They have an optionto participate in J&K elections from theirresettlement camps.

Past experience tells that the poll boycottcall from separatists and terrorists works insix constituenciesHabba Kadal, Sopore,Anantnag, Bijbehara, Amira Kadal and Tral.During the last elections, polling in these con-stituencies was negligible. But if even a smallnumber of pandits vote in these constituen-cies, it could help add to the BJPs kitty.

Sensing the BJP strategy, J&K Chief

Minister Omar Abdullah appealed to sepa-ratist leaders not to give a poll boycott call. In an election rally in Srinagar on August 24,he said: They (BJP) are banking on boycottin Habba Kadal, Amira Kadal, Sopore, Tral,Anantnag and Bijbehara constituencies andbelieve these are the seats they can have intheir kitty. Boycott has not helped in the resolution of Kashmir; boycott has not evenhelped the separatist leader (Syed Ali ShahGeelani). He also explained that the BJP was focusing on six assembly constituen-

The floods havestrengthenedthe BJPs position, witheven Congressleaders admitting thegovernmentspromptness in relief operations.

TESTING HUMAN GRITArmy personnel carrying out rescue

operations in the flood-hit state

UNI

UNI



cies, which have a sizeable presence ofKashmiri pandits. If the boycott continues,the people of Kashmir would be controlledfrom somewhere in Nagpur (RSS headquar-ters) or Jhandewalan (RSS headquarters inDelhi), he warned.

However, Abdullahs NC has lost clout inthe Valley, as the recent general electionresults revealed. Both the NC and its coalitionpartner, the Congress, didnt get any seat,while the BJP and the PDP won thre

india legal: issue: 30 september 2014

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