Rajiv’s Assassins: death row politics

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NDIA EGAL I L
March 15, 2014 ` 100

Sochi Olympics: india’s shame

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The true story behind

American Hustle

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www.indialegalonline.com

STORIES THAT COUNT

YOU NEED TO FEAR, YOU ARE A

MAN
KEJRIWAL VS AMBANI

ignorance of new sex laws can land you behind bars 18

did ril reap a windfall?

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LOKPAL IMBROGLIO: top judges are applying 30

EXCLUSIVE (INSIDE)
FIRST PHOTOS OF SUNANDA PUSHKAR TAKEN IMMEDIATELY AFTER HER BODY WAS FOUND INDICATE VIOLENCE 12

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Letter from the Editor
Inderjit Badhwar

elcome to the re-launch issue of our fortnightly – India Legal. It plunges into its new avatar when the country is on the threshold of a general election that promises a radical departure from politics as usual. A decade ago, while introducing another new magazine, I wrote that India is run by politicians who plunder, religious fanatics who murder, vested interests who sell out the national interest, teachers who refuse to teach, journalists who are in bed with the powerful and the pompous, bureaucrats who carry out illegal orders, ministers who violate the constitution, businessmen without a social conscience, lawyers who sell out and judges who do not stick their necks out against executive skulduggery. A decade later, not much has changed. And India still remains home to the world’s largest concentration of the poor with an uninspiring record of human development. So, if change is in the air, what better time than now to be part of it and, indeed, to help usher it in and become one of its most visible new faces? If journalists are to bear the cross of change, they must remain dauntlessly engaged in the task of digging, revealing, analyzing — telling it like it is. The thrust of our magazine — as should be the endeavor of all competent news journalism — is a mix of investigations, trends, breaking stories, thought-inspiring features, fresh information, views and insight. Where we depart from the ordinary is with the realization of a new paradigm: that a breaking story usually involves a powerful legal angle. And here is where we break from the crowd in order to offer a stimulating and useful reading experience. Yet, the magazine is not a handbook or a legal digest for special interest reading. All of India Legal stories and articles revolve on a recurring spin: they are reported, written and presented within the legal framework that drives them. Indian democracy rests on a bedrock of interlocking laws, many of them still evolving, changing or

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disappearing. Every institution of governance, the private lives of private citizens, those who govern, all businesses, our cyberspace, digital and mass entertainment media, the electoral process, and health and medical care come under the ambit of laws and regulations. It is within this matrix that our magazine starts on a sobering note — bringing before the public the first photographs of the body of Congress MP Shashi Tharoor’s wife, Sunanda Pushkar, taken immediately after she was found dead. Publicly, several questions have been raised about her demise caused, as forensic experts noted, by “unnatural causes”. One doctor observed bruise marks on her body. These can be seen in the photographs. We do not believe or indulge in sensational journalism. But there is a justifiable public interest to explore further the truth behind her death in light of these photographs. And India Legal will continue with its own follow-ups in coming issues. In addition to this story, the magazine contains a rich mixture of regulars and special features: sexual harassment and its dire consequences; the Lokpal and Jan Lokpal imbroglio; the misconduct of legislators within parliament; Arvind Kejriwal’s pillorying of Mukesh Ambani; how the Indian regulatory machinery fights back; the inside workings and news about the judicial system; the national controversy over books being banned. While experienced and highly skilled journalists handle the writing and production of the stories, the special legal inputs come regularly from a panel of experts and lawyers dedicated to the magazine’s editorial team. That is India Legal’s value addition. This is why our tagline says: Stories that count.

editor@indialegalonline.com

March 15, 2014

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MARCH 15, 2014

VOLUME. VII
Editor-in-Chief Inderjit Badhwar Managing Editor Ramesh Menon Executive Editor Alam Srinivas Senior Editor Vishwas Kumar Contributing Editors Naresh Minocha, Girish Nikam Associate Editor Meha Mathur Deputy Editors Prabir Biswas, Vishal Duggal Art Director Sudhir J Kumar Deputy Art Director Anthony Lawrence Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator Kh Manglembi Devi Web Designers Shubra Kandhari, Jitendra Kumar Production Pawan Kumar Verma

ISSUE. 13

EXCLUSIVE PICTURES

Focus

CFO Anand Raj Singh VP (HR & GENERAL ADMINISTRATION) Lokesh Sharma IT Amit Upadhyay, MD. Meraj, Om Kumar Singh Director (Marketing) Raju Sarin GM (Sales & Marketing) Naveen Tandon-09717121002 DGM (Sales & Marketing) Feroz Akhtar-09650052100 Marketing Associate Ggarima Rai For advertising & subscription queries sales@indialegalonline.com

HOW DID SHE DIE?
LEAD

First available photographs (inside) of Sunanda Pushkar, as her body was found in a hotel suite in New Delhi on January 17, raise several questions about her death

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You need to fear, you are a man

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Published by Raju Sarin on behalf of E N Communications Pvt Ltd and printed at NOVA Publications & Printers Pvt. Ltd., Plot: 9-10 , Sector-59, Phase - II, Faridabad - 121004, Haryana (India). All rights reserved. Reproduction or translation in any language in whole or in part without permission is prohibited. Requests for permission should be directed to E N Communications Pvt Ltd . Opinions of writers in the magazine are not necessarily endorsed by E N Communications Pvt Ltd . The Publisher assumes no responsibility for the return of unsolicited material or for material lost or damaged in transit. All correspondence should be addressed to E N Communications Pvt Ltd .

The amendment to the Indian Penal Code, criminalizing sexual harassment of any degree, will make life hell for Indian men grown up on outdated, contorted biases. VISHWAS KUMAR asks whether we are ready for this tectonic shift

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WATCHDOGS

The system fights back
Notes of pessimism about our country’s institutions notwithstanding, NV SUBRAMANIAN says these have enough vitality in them

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ACTS & BILLS

SPORTS

Will the hiccups never stop?

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Self goal for Indian athletes

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ART & ENTERTAINMENT

The passage of the Lokpal Bill became fraught with hurdles, leading to the resignation of Arvind Kejriwal’s government. VISHWAS KUMAR analyzes the problem areas

In an hour of shame, Indian sportsmen were barred from marching under the Indian flag as politicians refused to let go of their control of sports associations. GAURAV KALRA digs into the abyss of Indian sports CORPORATE

Love’s labor lost
DEVENDER SINGH explains what the law says about tabling of the Lokpal Bill CORPORATE

Suicide, 64 lies and videotapes
INDERJIT BADHWAR, who covered the real-life con of American Hustle three decades ago, rips apart the movie’s distortions GLOBAL TRENDS

Kejriwal versus Ambani

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“Bloomsbury got an out-of-court settlement with Praful Patel keeping me in the dark”

Targetting 72 the island nation
Even as the Lankan government is working hard on reconciliation following the gruesome endgame of 2009, why is the west isolating the country over human rights issues? INDERJIT BADHWAR questions the UN’s stand

Jitender Bhargava, author of the banned book, Descent of Air India, tells SHOBHA JOHN how the former civil aviation minister’s decisions harmed the national carrier CASE STUDY

Loose cannon legislators Freedom to the killer?

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Did Reliance strike a deal with Congress’ oil ministers to influence gas prices in its favor? ALAM SRINIVAS probes LEGAL EYE

Why shouldn’t MPs be subject to scrutiny for misbehavior, asks GIRISH NIKAM

If everything is a right then nothing is wrong

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REGULARS
Ringside… ..................6 Supreme Court ...........8 Consumer Watch ......78 Is That Legal? ...........81
Cover Design: ANTHONY LAWRENCE Model: GGARIMA RAI & ASHISH SHARMA Photograph: ANIL SHAKYA March 15, 2014

A fresh judiciary-executive debate erupts following the Supreme Court remission of death sentences to the assassins of Rajiv Gandhi. A report by RAKESH BHATNAGAR

The great Indian malaise of demanding rights while not giving a hoot for responsibilities is taking a toll on every institution, writes NARESH MINOCHA

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Aruna

VERDICT
“Criminal trials should not be reduced to mock trials or shadow boxing or fixed trials. The judicial criminal administration system must be kept clean and beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards or yardsticks of the type exhibited by the mandate of the Constitution.”
– Justice Arijit Pasayat J, in Zahira Habibullah H Sheikh v State of Gujarat (2004) 4 SCC 158

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SUPREME COURT
Illustrations: Aruna

Adoption rights for Muslims
n a small but significant step towards ensuring a uniform civil code in India (a goal enshrined by Article 44 of the constitution), a bench of Chief Justice P Sathasivam and Justice Ranjan Gogoi and SK Singh has ruled that Muslims can now adopt children under the Juvenile Justice (Care and Protection of Children) Act, despite their personal law debarring them from doing so. However, they may also choose to abide by their personal law. The judgment came in the wake of a public interest litigation filed by Shabnam Hashmi who, nine years ago, wanted to adopt a child, but the personal law of her community held her back. She had approached the apex court to seek uniform guidelines for adoption applicable to all communities. The bench further noted that the provisions of the Act were applicable for all religions and communities and were not restricted by religious beliefs. However, the clerics have put a spanner that the adopted child cannot inherit property, and that the women of the household will do a purdah with him.

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Benediction in Mumbai
n a landmark judgment, the Supreme Court saved the homes of over five lakh families living in Thane, Mulund, Bhandup, Borivali, Kandivali, Virar, Badlapur and Ambarnath in Mumbai Metropolitan Region. It quashed a 2008 Bombay High Court order, which had declared these homes illegal, saying they had been built on forest land bordering the sprawling Sanjay Gandhi National Park. While lambasting the Maharashtra government for bad administration, the court said it was unfair that buyers or residents had to bear the brunt when the state had showed no intention in the past several years to take over the land. A PIL was filed by an NGO, Bombay Environmental Action Group, in 2001 to update the state’s land records as per the Maharashtra Private Forests (MPF) Act, 1975, which also included land designated as residential areas. In 2008, the Bombay High Court had dismissed petitions filed by residents and developers against the forest status and notified the land as per the MPF Act, 1975.

Insulating babus?
ighting against corruption is the flavor of the season. A constitution bench of the Supreme Court (SC) recently sought to know from the centre, a list of benefits it had obtained by insulating a small group of bureaucrats in corruption cases. The bench stated that the safeguard seemed to encourage corruption. This, despite the fact that in 1997, the apex court had struck down an earlier administrative order barring the CBI from initiating an inquiry into graft charges against joint secretaries and officials above that rank without the centre’s approval. However, the NDA government in 2003 introduced Section 6A in the Delhi Special Police Establishment Act, bringing back the earlier mechanism into effect. The court enquired whether Section 6A had really improved governance, and sought justification for introducing it when Section 19 of the Prevention of Corruption Act did the needful. Section 19 has barred courts from taking cognizance of an offence against serving bureaucrats without the centre’s approval. The centre argued this was done to avoid frivolous complaints and not to shield corrupt public servants. Will the SC buy that?

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Delhi’s power equations
elhi would have plunged into darkness if it hadn’t been for the Supreme Court. It fended off a major power crisis in the capital by directing the National Thermal Power Corporation (NTPC) not to carry out its threat to cut off supply to distribution companies owned by the Anil Ambani Group from February 10, 2014. Both Bombay Suburban Electric Supply (BSES) Yamuna and BSES Rajdhani have to clear outstanding dues of `300 cr. A bench comprising Justices SS Nijjar and AK Sikri ordered the PSU to wait till March 26, when it would hear the pending petitions of the discoms, including its present writ petition. The bench directed BSES to pay up `50 crore within a fortnight. With a blackout looming over huge parts of Delhi, BSES had sought SC’s intervention, pleading that it had no money to pay the dues. With the state of Delhi now without a government too, all are waiting for some light at the end of the tunnel.

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Black deaths
reen concerns in the face of growing pollution are welcome. A bench comprising Justices AK Patnaik, SS Nijjar and FMI Kalifulla sought a reply from the centre, Delhi, Haryana, Uttar Pradesh and Rajasthan, asking why there is a direct link between the death of 3,000 children annually in the national capital and increased pollution levels due to diesel cars. It was based on a report of the Environment Pollution Authority and tabled by senior advocate Harish Salve. The bench suggested a 30 percent surcharge on the cost of diesel cars, high registration fee for personal cars and a comparative reduction in bus registration fee to improve air quality in Delhi.

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Batting for cricket
ricket and its murky affairs too have grabbed the attention of the Supreme Court. Though BCCI president N Srinivasan has emerged as the most powerful man in the world of cricket, his son-in-law’s involvement in illegal betting has come back to haunt him. A committee formed under Justice Mukul Mudgal has found that Gurunath Meiyappan was indeed guilty of illegal betting and passing on crucial information about the Chennai Super Kings (CSK) team to bookies in IPL 2013. More significantly, the committee has said that Meiyappan was actually doing all these as a CSK team principal, if not as its ‘actual’ owner. CSK has also been blamed for breaking its rules by giving free rein to Meiyappan. The panel also wanted a further probe into the role of Raj Kundra (one of the owners of Rajasthan Royals) and that of six national cricketers in betting and match-fixing. The court also received a sealed envelope from the committee containing the names of people who could be involved in the betting scandal. It’ll take up the matter on March 7.

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Delayed justice and leniency
aking note of the inordinate delay in the trial process in India, the apex court has ruled that people affected by it must be given a lenient punishment in case of delay. This is a welcome eye-opener for the country’s criminal justice delivery. The case in question was of a man who had been found guilty by the CBI for accepting a bribe of `65 in 1984. Delay in pronouncing a judgment by the trial and the high courts led to a situation where the accused was too old to serve imprisonment. He has been let off with a fine of `50,000.

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SUPREME COURT

Gas price woes
he Kejriwal government may have escalated tempers by lodging a case with the Anti-Corruption Branch regarding the gas price hike, but it wasn’t the first one. PILs on the issue were filed earlier by CPI MP Gurudas Dasgupta and NGO Common Cause in the Supreme Court, alleging that petroleum minister M Veerappa Moily had helped Reliance Industries Ltd to shore up gas prices produced from its KG-D6 offshore gas field. The government took the decision to double the price of locally-produced natural gas in June last year and the hike will be effective from April 2014. The apex court has said that the hike is subject to its decisions on pending PILs which will be taken up in the first week of March.

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PIL on army rejected
aste and creed play a major role in India. Surprisingly, the army is not immune to this. A PIL seeking abolition of recruitment in the army on the basis of caste, region and religion was recently dismissed by the Supreme Court. A bench of Justices TS Thakur and C Nagappan closed the hearing, saying they did not want to rock the army's boat and certain institutions must be left to manage their own affairs. But this was after the court took notice of the petition for more than a year and even sought the centre’s view on the subject. The petitioner, IS Yadav, a doctor from Rewari, had filed an affidavit claiming that such a biased recruitment policy followed by 22 regiments had no constitutional backing, violated fundamental rights and defeated the secular credentials of the army. The PIL stated that such a practice was not followed by the navy or the air force. The centre in its defense stated that such a classification had been a force multiplier and had helped in the smooth execution of operational plans.

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RTI blues

ou thought the Right to Information Act instilled transparency in governance? Think again. A PIL filed by advocate Sanjeeb Panigrahi in the Supreme Court cited documentary evidence to show that principal information officers (PIOs) demanded money for parting with required information asked by RTI applicants, when, in fact, it should be free. The PIL stated that such a move was tantamount to stifling the act itself. The petitioner

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further said that despite a statutory provision of imposing penalty on PIOs who are late in providing information, the rule was hardly applied. The lack of any format for seeking information in the act was also leading to rejection of many queries, it revealed. The PIL stressed the need for penalty in order to deter PIOs from providing irrelevant information and setting deadlines for disposal of appeals, followed by penalty in case of delay.

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A question of propriety
onsidering the hue and cry over the selection process for appointment of judges in the Madras High Court, a Supreme Court collegium headed by Chief Justice P Sathasivam withdrew all the names it had earlier recommended to the centre. The decision was based on two counts: unparalleled non-acceptance of the names and elevation of Justice RK Agrawal to the Supreme Court. It was under Justice Agrawal’s tenure as chief justice of the Madras High Court that the names had been decided.

Judiciary not weak: CJI
hief Justice P Sathasivam himself had to set a record straight. When Law Minister Kapil Sibal observed that accountability was unusually weak in the judiciary, it was not taken kindly by him. The chief justice said that the apex court had cleared all requests of government or its agencies and that a comprehensive mechanism was already in place in the in-house procedure for addressing complaints against sitting SC and high court judges. He further said that complaints received by him were thoroughly examined and, if need be, a three-member committee was set up to probe the matter.

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APPOINTMENTS
or the first time in several years, the Supreme Court has its full strength of F judges after the swearing in of Justice Rajesh Kumar Agrawal of the Madras High Court and Justice Nuthalapati Venkata Ramana from the Delhi High Court. However, many vacancies are expected to be created in the Supreme Court in the near future, as around half of its bench will retire. Justice HL Gokhale will leave office in March, while both Chief Justice P Sathasivam and Justice GC Mishra will retire in April this year. This will be followed by the retirement of Justice Radhakrishnan in May and Justices AK Pataki and SS Ninja in June.

QUOTES FROM THE COURT
“A picture of a nude or semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse the feeling or revealing an overt sexual desire.” —A contemporary interpretation by the SC on the archaic obscenity provision in the Indian Penal Code “We hold the recommendations of the wage board are valid, based on genuine and acceptable considerations and there is no valid ground for interference.” —A bench of Chief Justice P Sathasivam and Justices Ranjan Gogoi and SK Singh, rejecting challenges to Majithia Wage Board recommendations “The allegations of betting and passing on information against Gurunath Meiyyappan stand proved. However, allegations of (match) fixing require further investigation.” —Mukul Mudgal Committee report on allegations of spot-fixing and betting in the IPL, in its report to the SC “The law minister was not given accurate and proper information about the role of judges and how the judiciary functions.” —Chief Justice P Sathasivam, contradicting law minister Kapil Sibal’s claim that the accountability process is weak in the judiciary “We have to look after the population of Delhi. Only the consumer suffers in this imbroglio. Don’t disconnect power.” —SC bench of Justices SS Nijjar and AK Sikri, restraining NTPC from cutting power supply to Reliance-owned discoms “The long delay… in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence.” —SC bench of Justices SJ Mukhopadhaya and Kurian Joseph on cases that go through a protracted trial process “There is no obligation on the convict to demonstrate specific ill effects of suffering and agony on his mind and body as a pre-requisite for commutation of sentence of death.” —A three-judge bench of Supreme Court, while commuting the death sentence of Rajiv Gandhi killers to life imprisonment “The (Juvenile Justice Care and Protection of Children) Act is a small step in reaching the goal enshrined by Article 44 (Uniform Civil Code)… The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs.” —A bench of Chief Justice P Sathasivam and Justices Ranjan Gogoi and SK Singh, delivering a judgment on adoption rights for Muslims
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HOW DID SHE DIE

disturbing pictures taken immediately after her body was found in a posh hotel show severe bruises, raising enough questions and warranting a more extensive probe

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By Vishwas Kumar

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TILL DEATH DO US APART Tharoor says Sunanda’s father, brother and son stand by him in this hour of grief

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oon after news of the sudden death of Sunanda Tharoor, wife of Minister of State for Human Resource Development Shashi Tharoor, spread on January 17, questions began to be raised about the cause of the death. Her body was found in Suite 345 at the capital’s Leela Palace Hotel that winter evening just a day after she had put to rest speculations about her marriage to Tharoor having gone wrong. Did she die because of a drug overdose? Did she commit suicide? Was she murdered? Was there an underworld and Indian Premier League (IPL) link? Was she killed because she threatened to spill the beans about the wrongdoings in the league, which is now plagued with charges of illegal betting by the underworld and spotand match-fixing against franchise owners, players, and umpires? (see accompanying story) Days after her death, Sudhir Kumar Gupta, head of forensic medicine at the All India Institute of Medical Sciences (AIIMS), who was part of the threemember team that conducted the autopsy, said, “After post-mortem examination, we found it was a case of sudden unnatural death.” While he agreed there were bruises on her body, he said he could not reveal the details as the case was under investigation.

While she was cremated within 24 hours, the Delhi police still awaits the visceral report. A month later BJP leader Subramaniam Swamy raked up the issue again. He categorically said she was murdered. In an interview to a TV news channel, Headlines Today, he maintained that “credible sources” told him that there were bruises on the body “from belly up”, and “it seemed that someone had held her nostrils so that her mouth was open”. He added there was evidence that her blood stream had traces of lethal poison of Russian origin. He claimed that all the photographs of Sunanda’s body, which were taken by the police, were destroyed. Going a step further, Swamy added that it was rare in criminal jurisprudence that the body of a person, who died in ‘mysterious’ circumstances, was cremated within 24 hours. He wanted the doctors who had performed the post mortem to be made witnesses by the police. Tharoor made headlines, and brought his 52-year-old wife’s death back on to the front pages of newspapers, when he reacted to Swamy’s allegations. He said that the BJP politician had raised the issue for political reasons, and “it has been a long time in Indian political history that anyone

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about the alleged murder, he should produce the evidence. He added that he loved Sunanda and missed her every day. hile India Legal does not wish to get into the politics of the Tharoor-Swamy brawl, and personal issues of the minister, we do see Sunanda’s death as a high-profile case as it involves a cabinet minister. There is justifiable public interest to expose the truth behind her death. This is the only reason why we finally decided to publish these photographs taken after she died. If you look carefully you will see injury marks on her wrist, chin, neck and other parts of her upper body. These bruises throw up enough questions to justify a more detailed investigation into her death. Swamy asked the news channel what the hurry was to close the case. We merely reiterate it. Hours before she died, she had called Rahul Kanwal who heads Headlines Today, Barkha Dutt of NDTV and TV personality Nalini Singh, who was Sunanda’s close friend. Kanwal said on television that

Troubling questions
n n n n n

Why was the probe handed over to the local police, and not the Crime Branch? Why was Tharoor’s mobile taken away, but hurriedly returned even before the case was closed? If she had taken an overdose of drugs, why did the police not find any medicine bottle or foil of tablets in the room? How come in a five star hotel room there was nothing that the police found, not even a bottle of water? What did the close circuit television system of the hotel show? Was it in working condition?

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has taken Subramaniam Swamy seriously”. The minister claimed that the Delhi police was on the same page. No FIR had been filed, and there was no chargesheet until now. It implied that the investigators had found no evidence that Sunanda’s death was unnatural or suspect. Tharoor said it was increasingly clear that there was no reason for taking the process further, adding, “Sunanda’s son, father and brother have stood with me solidly; no one has any suspicion of foul play, and we are not going to let Sunanda’s memories to be soiled by other people’s petty politics or the media’s quest for cheap TRPs.” He told Headlines Today that since Swamy claimed to know

Post mortem on post mortem

ithin a day of Sunanda Tharoor’s death on January 17, three theories emerged about how she died. Suicide, murder, and accidental overdose of drugs. Since there were no eyewitnesses, and none has come forward until now, the police investigations revolved around circumstantial evidence, forensics, and medical reports. The most crucial among them was the post-mortem report by AIIMS, the statefunded hospital in New Delhi. The police seemed convinced that it was a case of either suicide or overdose. The conclusion was probably a hurried one, especially when Sudhir Gupta of AIIMS, who headed the three-member panel to conduct the autopsy, announced a few days after the death that it seemed “sudden and unnatural”. India Legal’s investigations indicated that there was more to the case than what had been revealed till now. Consider, for instance, the post-mortem report. According to a directive by Delhi’s lieutenant governor, controversial and mysterious cases like Sunanda’s should be handled by a three-member medical panel. The reason: a single doctor conducting a post mortem could be manipulated or influenced by interested parties. Logically, one would assume that the three doctors would be from different hospitals or mortuaries.

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Sunanda had told him that she wanted to disclose facts to him about the controversies that surrounded Tharoor. But before they met, she was dead. Nalini Singh told a television channel that Sunanda was disturbed with the alleged relationship of her husband with a Pakistani journalist. She said that she was not the kind of person who would commit suicide. Two days before Sunanda’s death, Tharoor had found himself in the midst of a controversy when intimate messages he had sent to Mehr Tarar, a Pakistani journalist, appeared on his highly popular Twitter account. Tharoor posted a message that his account was hacked. Sunanda tweeted that it had not been and that she had been posting the exchange between her husband and Tarar so that the world would know. Speaking to The Economic Times, she said, “This is a Pakistani woman who is an ISI (Inter Services Intelligence) agent and she is stalking my husband. And you know how men are. He is flattered by the attention. I took upon myself the crimes of this man during IPL I will not allow this to be

Swamy said it was rare in criminal jurisprudence that the body of a person, who died in ‘mysterious’ circumstances, was cremated within 24 hours.
done to me. I just can’t tolerate this.” In her statement to the sub-divisional magistrate, Nalini Singh said that Sundanda had called her at around 12.10 am on January 17 and was crying. She was reportedly upset with her husband’s alleged relationship with the Pakistani journalist. Tharoor had to resign in 2010 as junior minister for external affairs after Lalit Modi, the then chairman of IPL, alleged that Sunanda had been gifted sweat equity in a consortium that was bidding to become the Kerala team. At that time, Tharoor said that he was just a mentor to the consortium and had not benefitted financially. (See the accompanying piece on Justice Mudgal probe on links between the underworld and IPL)

Curiously, in Sunanda’s case, they were from the same hospital, AIIMS, and from the same department — forensic medicine. The panel was headed by Sudhir Kumar Gupta, professor and head of department, and included Adarsh Kumar, assistant professor, and Shashank Pooniya, senior resident. This created the first doubt about the veracity and objectivity of the post-mortem report. A forensics doctor from another hospital asked: “How can the three-member panel be dubbed independent or impartial, if it was headed by the senior-most doctor in a department, and included two junior colleagues? Could the juniors question the conclusions reached by their senior? Wouldn’t the fear of a bad annual confidential report, which a senior submits about his juniors, compel the latter to toe the head of department’s line?” Several sources that India Legal spoke to maintained that this had become the norm with the Delhi police. In several cases in the past few years, the post-mortem panel of doctors was constituted to include forensic professionals from the same hospital or mortuary. This helped the police to extricate a tailor-made report that proved its suspicions, rather than raise fresh questions. In fact, there have been a few cases where post-mortem reports were conducted by independent panels, which provided breakthroughs to the police. One such case dealt

with the death of Anju Illyasi, the wife of TV journalist Suhaib Illyasi, in January 2000. One of the panel members concluded that the knife wounds on her body were not selfinflicted and, therefore, it was a case of murder, and not suicide. This forced the investigators to pursue a different path. A source who insisted on anonymity alleged there was informal pressure from the union health ministry, which monitored AIIMS and Delhi police in such criminal cases, to gloss over uncomfortable issues that Sunanda’s post-mortem would have raised. Although this could not be proved conclusively, the post-mortem did seem like an exercise in haste. Circumstantial evidence indicated that foul play could not be ruled out. For example, hours before her death, Sunanda’s tweet hinted that she expected her death. In phone calls to friends and journalists, she claimed that she would reveal everything she knew about Tharoor’s role in the IPL controversy in 2010. In 2010, when a consortium purchased an IPL franchise, Kochi Tuskers, Sunanda was given a 25 percent sweat equity in the company, which was free and in perpetuity. The allegations were that Sunanda got it only because the union minister was lobbying for the team. Was Sunanda’s murder related to the IPL or to links in Dubai (where both lived for a while), and the underworld there which controls illegal betting and match fixing in cricket? IL

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“This is a Pakistani woman who is an ISI agent and she is stalking my husband. And you know how men are. He is flattered by the attention. I took upon myself the crimes of this man during IPL. I will not allow this to be done to me. I just can’t tolerate this.”
— Tweet of Sunanda, referring to Mehr Tarar Sunanda, who ventured into events management, became ambitious and subsumed herself in work, distancing herself from her husband and friends. Everyone who knew her saw her as an upwardly mobile person burning with ambition. Sunanda went to Canada but returned to Dubai in 2000. By 2005, according to an article in Indian Express, which was published after her death, she landed a job with TECOM Investments, “a government-owned body responsible for the management of Dubai’s business parks — Dubai Media City, Dubai Internet City, Dubai Knowledge Village and Dubai International Academy City. Her stint there, as sales manager, ended in January 2010.” In 2007, Tharoor and his second wife, Christa Giles, took up residency in Dubai for a brief while. But he never met Sunanda. They finally met in October 2009 and married in August 2010. Although Tharoor was interested in cricket, it was she who influenced him to invest in IPL’s Kochi team, months before their wedding. She did not understand the technicalities of cricket, but she loved to hobnob with celebrity cricketers. Sunanda and Tharoor were in love. They hung out together at parties. But their friends realised something was amiss in 2013, when Sunanda told them that there were problems between them. The animosity came out in the open on January 15, 2014, when followers of Tharoor’s twitter account read personal tweets involving Pakistani journalist, Mehr Tarar. IL

A flamboyant life cut short
orn in a town near Sopore in Jammu and Kashmir in an army family, Sunanda Pushkar married a fellow Kashmiri pandit, Sanjay Raina, who later became a small-time music director and launched a few music CDs. She was a teenager, and still in college then. The couple divorced within two years. Sunanda went to Dubai with her second husband, Sujith Menon, a businessman who was Raina’s best friend. He tried to organize some shows in Dubai with Malayalee actors, but the venture failed. In 1997, Menon was killed in a road accident in Delhi; some say he took his life. By then, the marriage was on the rocks. The reason: in the 1990s,

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‘Betting crime syndicate being headed by Dawood’
Excerpt from the report by Nilay Dutta, member, Justice Mukul Mudgal Probe Committee
etting in cricket in India is not legal. But there is a huge illegal betting market in cricket matches and more particularly in the IPL. The amounts involved are mind boggling. The Delhi Police estimates that in one IPL match the total bets would be around Rs. 150 crores. Investigations by the Delhi Police have revealed that the illegal cricket betting crime syndicate is being headed by Dawood Ibrahim Kaskar, who is a known declared terrorist, based abroad. The investigation of the Delhi Police has disclosed the involvement of several former players who were used by bookies/fixers to gain access to various players and induce them to join this syndicate. According to the Delhi Police, the modus operandi of this syndicate was using expensive gifts/cash/girls to induce young cricketers to join this syndicate. This organised crime syndicate, besides controlling illegal betting was indulging in fixing performances of players and also the rates of betting. The rates of betting were communicated from abroad to various mega bookies. The syndicate of Dawood Ibrahim Kaskar was also using musclemen and henchmen like Shaikh Shakeel @ Shakil Babu Mohiddin Shaikh @ Chotta Shakeel to intimidate various actors of this syndicate to comply with their directives. Threats of use of violence were used to settle disputes connected with payments as well

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MONEY MAKES ’EM MOVE The IPL has come under the scanner of investigators for liaison with underworld, betting and match fixing

as to intimidate players who failed to perform after accepting gifts/girls/money. The integration of the markets along with streamlining of money transfers through hawala transactions and certainty of settlements by muscle power opened up a huge avenue of making windfall gains for this syndicate. This led to an amalgamation of multiple sub conspiracies, all controlled and directed by the mega conspiracy of which Dawood Ibrahim and Chotta Shakeel are the prime movers. Investigations further revealed that Dawood Ibrahim and his aides decide the initial betting rates for each match, which as the match progresses move closer towards the rates which actually reflect the real status of the match. It is during this initial period that the bookies of the D Company make huge profits. The rates fixed by the D Company have credibility as a large number of matches/ sessions in cricket matches are fixed by them and therefore they need not reflect the actual betting market sentiments observed and followed world over by gamblers who access a huge number of websites which are legal in their host countries such as Betfair. IL
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YOU NEED
Anil Shakya

YOU ARE

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TO FEAR,

A MAN

following the amendment to the indian penal code in february 2013, indecent behavior against a woman could land you in jail. is society on the same page as lawmakers?

A

college boy shares a joke with a double entendre with his classmates. While most friends, including girls, laugh out loud, one girl takes offence and decides to take up the matter with the higher authorities. Does the boy have a reason to worry? Yes. Following the new Criminal Law (Amendment) Ordinance 2013, signed by the president of India in February 2013, much of what was considered passable behavior is legally impermissible. Enough to land you in jail. You indulge in loose remarks, cheap jokes, wooing or alternatively stalking at your own peril. If a lady finds that these have sexual connotations, she is within her rights to take recourse to law.
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Anil Shakya

NO MEANS NO A protestor gives out a firm message during the demonstrations in the wake of rape of five-year-old Gudia in Delhi in May 2013

The pendulum has swung, from women suffering varying forms of harassment in silence for fear of castigation, to now picking up courage to voice their disapproval at unacceptable behavior, and in some cases, even filing frivolous complaints. THE DEMAND I t was in the wake of the Nirbhaya rape case of December 16, 2012 that the amendment was passed. Public outrage was unprecedented and no political party wanted to be on the wrong side of the public ire. The result was that the amendment did not even go to the Parliament Standing Committee for discussion.

Before the amendment, women complainants and their grievances were dealt with through the anti-rape provisions under section 375 and 376 of the Indian Penal Code (IPC). The working women issues were covered in the Supreme Court guidelines in the Vishaka case judgment in 1997 in response to a public interest litigation filed by Vishaka and others following the rape of Bhanwari Devi in Rajasthan. Bhanwari Devi had tried to prevent child marriage in one of the state’s districts but was overpowered by a group of men who objected and then sexually assaulted her. For the first time, sexual harassment at the workplace was clearly defined and legal remedies were provided. In a great hurry, the lawmakers ignored the fact that existing laws were enough to give culprits severe punishment, even death in case of gang-rape-cum-murder cases. Ironically, barring the juvenile, all the rapists in 2013 Nirbhaya rape case — that prompted the new amendment — were held guilty and sentenced to death under the previous anti-rape provisions. If there were problems or lapses, it was in its poor implementation. For example, in the Tehelka case, the media organization had not constituted the sexual harassment committee to deal with internal complaints. However, once the allegation against the magazine’s former Editor-in-Chief Tarun Tejpal became public, Goa police swiftly moved and initiated the legal process. The need for a new law existed to the extent that many forms of excesses earlier went unpunished. In Indian society, many perhaps don’t even realize they are trampling upon a woman’s personal space. While a man might ruin someone’s day with a nasty gaze, offenses like that can’t be proved in the court. Which is why, perhaps, in the amendment, oral evidence and a woman’s word have been given credence. As Dr Bulbul Dhar James, honorary director, Sarojini Naidu Centre for Women’s Studies, Jamia Millia Islamia, says, “Criminalizing several sexual acts would definitely become a

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deterrent. Fear of criminal prosecution does work in this country even though there is a real chance of misuse.” KEY PROVISIONS T he legislation marks a significant departure in many respects, the most important being that the complainant can choose her time to walk into the police station. Murari Tiwari, a noted criminal lawyer, is critical of doing away with the time-limit to lodge sexual offenses. He cites the recent examples of retired Justice AK Ganguly and Justice Swatanter Kumar against whom charges were leveled after one and two years, respectively. “It is a mockery of the law. Now charges are being brought after six or seven years. There should be some timelimit, otherwise there will be mayhem. Since the new rape law does not require evidence of medical report to prima-facie establish the charge, it has become easy (to file complaints),” he points out. The other departure in the amendment is that a woman can file a complaint anywhere in the country, and not necessarily in the jurisdiction where the crime allegedly happened. The police will be required to transfer the case to the necessary jurisdiction. Section 354 A, 354 B, 354C and 354D have been added to the IPC, in addition to Section 354, which deals with assault or the use of criminal force against woman with an intent to outrage her modesty. Section 354A defines “sexual harassment” and includes acts like showing pornography, making physical contact, advances and unwelcome explicit sexual overtures, demanding or requesting sexual favors, or any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Under 354 A (1), sexual harassment is a cognizable offense, non-bailable and carries punishment extending to five years with fine or both. Section 354B states, “Whoever assaults or uses criminal force to any woman or abets such act with the intention of disrobing or

compelling her to be naked in any public place, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years and with fine.” Section 354C defines voyeurism and stalking. Defining voyeurism, it says: “Whoever watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator shall be punished …” Also, Section 375 was altered and the word “rape” was substituted by “sexual assault”. It implies that acts of sexual nature other than rape will also now be a criminal offense. Forcing a person to commit a sexual act on oneself or on any other person is now illegal. The age of consent has been increased from 16 to 18 years.

The need for a new law existed to the extent that many forms of excesses earlier went unpunished. While a man might ruin someone’s day with a nasty gaze, offenses like that can’t be proved in the court. Which is why, perhaps, in the amendment, oral evidence and a woman’s word have been given credence.
Also, the amendment says, “A person who does not physically resist the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.” The punishment for sexual assault has been made much harsher. It is imprisonment of not less than seven years, which could be extended to life, along with a fine. Also, aggravated sexual assault is liable for imprisonment of not less than 10 years but may extend to life imprisonment and fine.
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There is a more than four-fold increase in the number of molestation cases registered in Delhi; the figure has gone up from 625 in January-November 2012 to 3,237 in the same period in 2013. In the same period, the number of harassment cases registered has gone up from 165 to 852.
IMPLICATIONS T he legislation has the potential to fundamentally alter social dynamics. While it will enforce propriety, say in the workplace, there is a great deal of fear about its misuse. Wilson John, vice president and senior fellow, Observer Research Foundation (ORF), says: “There are significant consequences of the legislation on employee relationships and overall office environment. These can be considered as “unintended” consequences. There is bound to be an atmosphere of suspicion and

anxiety in offices which have largely been open and friendly.” Charan Reddy, former Lok Sabha MP and NRI industrialist, says, “It is dangerous to make a loosely defined conduct like ‘unwelcome behavior’ or ‘sexually colored’ remarks into a criminal offence. It has a huge potential for misuse. In the US, all such crimes are described in detail to avoid misinterpretation.” It is the undefined areas of the legislation which are a reason for worry. There is lack of clarity on what will qualify as “conduct of sexual nature” or “voyeurism”. Will a pat on the back make a man liable to punishment, for instance? Will verbal abuses become a criminal offense? After all, the four letter word has become so much a part of corporate lingo, even female employees chant it. Will showing a nude picture of a model published in a magazine to a female colleague in course of work, say at an ad agency, be constituted as “showing pornography”? Will smearing color on a woman on Holi be called “conduct of sexual nature”? Tiwari says the new law is over-dependent on oral evidence to start a criminal proceeding against an accused. It is a dangerous provision. “Police now register a case

THE BLOTS ON CIVILIZED SOCIETY An accused in the Nirbhaya rape case being taken to court

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and leave it to the court to pronounce judicial verdict. Where is the criminal investigation that the police is duty-bound to do to find the truth?” he asks. RS Gupta, former Delhi police commissioner, says, “Due to intense pressure from media and NGOs, cops are going to the other extreme. Even when they find there is little evidence or no evidence, they do not file a closure report. Instead they file a chargesheet and the accused have to go through extensive judicial process of trial to prove their innocence. But one must also remember that the same pressure also works on the judiciary and they too fail to take a stand.” One such recent case is a rape complaint filed by a middle-aged woman with the Mehrauli police station in Delhi against two persons. One of the alleged rapists was Ajay Katara, an eyewitness in the sensational Nitish Katara murder case. The police had no choice but to immediately file an FIR even though they doubted the complainant’s account. During investigation, the cops collected cellphone records and other details of their movement on the day of alleged crime. The cellphone details and CCTV footage collected from a shopping mall in Gurgaon showed that at the time of alleged rape, the two accused were not even within 15-20 km distance from the site, where the complainant alleged the crime had happened. espite these findings, the case is still registered against the accused. The police can’t cancel the criminal case on their own. They have to submit all the evidence before the court. It is the court’s discretion to dismiss the case or direct the police to further probe the case based on documents placed before it. In the eye of the law, they are still alleged rapists. The Mehrauli case is not an isolated incident, as statistics point out. In the wake of the amendment, there is an increase of over 100 percent in anti-women crimes registered in Delhi. Till November 2013, the Delhi police registered 1,493 cases of rape, as against 661 in the corresponding period the previous year; 3,237 cases of molestation as against 625 in the previous year, and

On your guard, at the workplace
CLOSE on the heels of the amendment in the Indian Penal Code in February 2013 came the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013, which got the president’s ascent in April 2013. The act poses a tremendous responsibility on the employer to ensure women’s safety at the workplace. The act provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or a worker in ad-hoc capacity. Students, research scholars in colleges/universities and patients in hospitals have also been covered. Further, the act covers workplaces in the unorganized sectors.
l Under the act, every employer is required to constitute an internal complaints committee. Since a large number of the establishments in our country have less than 10 workers for whom it may not be feasible to set up an internal complaints committee, the act provides for setting up of local complaints committee to be constituted by the designated district officer at the district or sub-district levels, depending upon the need l They have to provide any assistance needed by the recipient of sexual harassment in order to help her file a case and achieve effective redressal l They have to help the woman employee initiate penal action under the Indian Penal Code or any other law in force when the perpetrator is not an employee of the company and is a third party l They have to provide the internal complaints committee with any facility it may require in order to investigate cases completely and prevent any hindrances to their functioning l Since there is a possibility that during the pendency of the inquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work l The complaint committee is required to complete the enquiry within 90 days. A period of 60 days has been given to the employer or district officer for implementation of the recommendations of the committee l In case the complaint is proved, the committee could recommend action in accordance with the provision of service rules applicable to the respondent or as per the rules which will be prescribed, where such service rules do not exist l Employers are required to display posters at prominent places for generating awareness and conduct regular workshops l The act requires the employers to include a report on the number of cases filed and disposed of in their annual report. Organizations, which do not prepare annual reports, would forward this information to the district officer. l Employers who fail to comply with the provisions of the act will be punishable with a fine which may extend to `50,000

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MOMENT OF IGNOMINY Tarun Tejpal, former Editor-in-Chief of Tehelka, being taken to Goa

852 cases of harassment, as against 165 in the previous year. Ashok Mallik, honorary, vice president, Delhi Slum Dwellers Federation says: “The law has no provision to punish false accusers. There is absolutely no deterrence against lodging a wrong case. Non-enforcement of perjury law, which deals with false cases, by our judiciary has only encouraged liars.” ONE STEP BACK T here is a real worry that this legislation will actually prove counterproductive to women’s empowerment. The new amendment had already made employers re-think their human resources (HR) policy on hiring women. A senior HR manager of a

Will showing a nude picture of a model published in a magazine to a female colleague in course of work, say at an ad agency, be constituted as “showing pornography”? Will smearing color on a woman on Holi be called “conduct of sexual nature”?
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multinational company, refusing to be named, says: “We have stopped hiring women employees. Our senior management is unwilling to take a risk. We are scared of several sections in the amended sexual harassment clause that have now been made into criminal charges.” He elaborates: “In the course of work, there are frequent disagreements, arguments, shouting and scolding. At times, we have to terminate or transfer women employees too. Now a woman employee could easily level the allegation that our action is malafide and drag us to police.” Anil Bhasin, editor-in-chief, Asia News Features, says: “I have been forced to install CCTV cameras in our office as a precautionary measure. I have learnt that several big newspaper editors are now fearful of hiring women employees. Senior management doesn’t want to take a chance. They are scared that their legitimate action could be exploited by vengeful employees to slap sexual harassment charges.” NEED OF THE HOUR T he legislation comes at a time when people from diverse social milieu are converging upon workplaces, with varying notions

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A relook at laws
FOLLOWING the Nirbhaya rape case on December 16, 2012, a three-member committee headed by Justice JS Verma, former chief justice of the Supreme Court, was constituted on December 23, 2012 to recommend amendments to the criminal law. The other members on the committee were Justice Leila Seth, former judge of the High Court, and Gopal Subramanium, former solicitor general of India. The committee submitted its report on January 23, 2013. The amendments in the Indian Penal Code, February 2013, emanate from the recommendations of that committee. The committee broadened the definition of rape and suggested that rape should not be limited to penetration of the vagina, mouth or anus. Any non-consensual penetration of a sexual nature should be included in the definition of rape. It recommended that non-penetrative forms of sexual contact should be regarded as sexual assault. The offense of sexual assault should be defined so as to include all forms of non-consensual non-penetrative touching of a sexual nature. The committee suggested imprisonment of five years or fine, or both, in case of sexual assault. In case where force has been used to disrobe a woman, it suggested three to seven years and a fine. The committee included in its ambit many aspects of harassment of women, including acid attacks, sexual harassment of women at workplace, assault on women in disturbed areas, and child abuse. It also discussed police reforms in great detail.

of men-women relationships and what is right and wrong. For instance, you might not admire women in revealing attire, but their attire is none of your business and gawking at them is a strict no-no. Sensitization will also be required for the vulnerable teenage group, which is just opening up to the whole new world of possibilities, exploring relationships, including on social media without any sense of self control and quite oblivious to the new law. Any impulsive act on the part of a youngster could ruin his life, there being no second chances in law. This will require sensitization programmes at every level, to make boys and girls, men and women aware of what is acceptable and unacceptable behavior in a group, school, college, workplace or a public place. Boys will have to understand that whether they like it or not, they will have to be within their limits. Organizations will have to invest time and energy to prepare rule books in black and white to specify dos and don’ts, and conduct frequent workshops. Dr Dhar James of Jamia Millia Islamia, who is part of the internal committee to deal with sexual harassment charges, says her

center conducts such sensitization programs for all the departments of the university, for familiarisation with the new law. “Whenever I conduct a workshop for faculty and students on sexual harassment, I face a lot of resistance from male members. They keep on pointing out flaws in the law. However, when I explain that the law now has punitive action and it could end one’s career, they become serious and listen carefully.” Gupta feels that it will take at least a decade to evolve procedures. “Once the police, judiciary and society come on the same page, it will become easy to weed out frivolous cases. However, I must warn that in the course of achieving that fine balance, there will be several victims.” The Justice Verma Committee had also suggested that the amendment in anti-rape laws is only one of the major steps to provide women constitutional equality. The full result will only come after police reforms, educational reforms, training of personnel in the criminal justice system, and services such as well-equipped centers for dealing with rape. The easy part has been accomplished. The tough task begins. IL
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Fights
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The System

Back

contrary to what anarchists would have us believe, there’s much to be lauded about indian institutions

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ith regard to the system, India is caught between two conflicting narratives. One narrative, which has become popular these days, rails against the system, saying it is entirely corrupted. The anarchists take this line. They want the system dismantled and the administration to pass on to a mob. One can almost imagine Maximilien de Robespierre turning in his grave. The other narrative argues that the system is being imploded by systemic institutions exercising autonomy to the point of alleged licentiousness. Those who take this line have necessarily benefitted from the system and are opposed to reforms. What is the truth? Where does it lie? The truth, as always, lies somewhere in between. The system is not all bad or good. Reforms are necessary, and they are unwittingly taking place, which need to be regularized. There is no call to dismantle the system, and speaking of

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revolution is bad form, as pointlessly revolting as smoking in the London Underground during rush hour. Or any hour. India has gotten all too democratic for such nonsense.

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Aruna

hen Tirunellai Narayana Iyer Seshan became the chief election commissioner in 1990, few expected him to go as far to curb electoral malpractices as he did. He and his successors persevered to make elections free and fair and the results are there for all to see. Barring a few high-profile cases and the generic anxieties about electronic voting machines vented from time to time, India has by and large mastered the art of honest polling. Who should be credited most? Seshan. Even Seshan would be surprised by what he did. (He surprised this writer in those days by quoting the Rubaiyat par coeur.) In nearly his entire career as an Indian Administrative Services officer, he never came to be a thorn in the side of the government. If anything, he was thought to be devoted to the Nehru-Gandhi family, becoming Rajiv Gandhi’s cabinet secretary. Was it a case of the worm turning? One cannot be sure. But he transformed the Election Commission into a powerful force of good, leading the government of the day to curb his powers by appointing two deputies. The genie, however, was out of the bottle. It is unthinkable for any government at the centre any longer to be able to adversely influence the Election Commission. The system revolted against the system. Supreme Court activism falls in another category, but it is also a form of systemic revolt or correction. Indira Gandhi infamously demanded a “committed” judiciary. Since those dark days of the Emergency, the highest judicial institution has travelled a long way. It has strongly intervened against the misuse of Article 356. It has sought to insulate the higher bureaucracy from political pressure. Taking the comptroller and auditor general’s report to the correct conclusion, it cancelled the 122
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A PROTEGE, A PROBLEM Former CAG Vinod Rai

dubiously-allotted 2G licenses. It has pitted its might against presiding officers misusing their legislative powers, a recurring practice during the first term of the United Progressive Alliance regime. In the case of Section 377 of the Penal Code, it refused to come under manufactured pressure, putting the onus on parliament — where it belongs — to change the law. It was, to this writer’s mind, an admirable balancing act, addressing the concerns of the silent majority, but burdening parliament to make amends, if any. This advertises the maturing of a great institution.

Middle India may muddle along, but it ends up making the right choices. It chose the system, and the system is in autocorrect mode. Changes will happen gradually, but they will be marked by permanence.
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Not to speak of the comptroller and auditor general and the Reserve Bank governor and their upstanding works. Vinod Rai, who shook the country with his comprehensive exposure of the 2G scam, has empowered future comptrollers in much the same way as Seshan gave teeth to his successors. Their career trajectories as Indian Administrative Services officers are also not very different, with Rai being made comptroller in 2008, apparently on Union Finance Minister Palaniappan Chidambaram’s recommendation. The wonder is that he took on the very government that promoted him. Which goes to show that the system has its good and bad sides, and that evil, contrary to what the anarchists say, does not always prevail. Or take the example of the Reserve Bank Governor Raghuram Rajan, who, many thought, would act at the dictates of the finance ministry. His predecessor, Duvvuri Subbarao, was hauled over the coals for refusing to bow to government and industry pressure and lower interest rates. Contrary to expectation, Rajan raised them in February this year, wisely arguing that inflation hurts the poor the most; and that growth in the season of high inflation is meaningless. He compared himself to a vigilant owl and not a hawk or dove. This is ultimately the strength of India’s democracy. Its institutions are capable of striking back. From the time of Seshan to now, there has been a steady deepening and maturing of the systemic fightback. Censurers of such fightbacks are warned that their clever and shrill campaigns will reach nowhere. Middle India may muddle along, but it ends up making the right choices. It chose the system, and the system is in autocorrect mode. Changes will happen gradually, but they will be marked by permanence. IL

N V Subramanian is Editor, www.newsinsight.net and writes on politics and strategic affairs. He has authored two novels, University of Love (Writers Workshop, Calcutta) and Courtesan of Storms

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VARIOUS PROVISIONS OF THE LOKPAL BILL ARE CONTROVERSIAL. STILL, THE LOKPAL WILL BECOME A MEGA INSTITUTION. THIRTEEN SUPREME COURT JUDGES, INCLUDING A CHIEF JUSTICE ASPIRANT, ARE INTERESTED TO HEAD IT
THE LONG MARCH TO LOKPAL Anna Hazare at his campaign in Delhi in August 2012 for the Lokpal Bill

T

ackling corruption is never easy. And an Act which makes this simpler is already embroiled in controversy. The Lokpal Bill, passed by parliament in December, has seen the Congress and the BJP clashing over the process of appointing its members and choice of candidates. The Lokpal and Lokayuktas (L&L) Act 2014, which led to the new anti-corruption body, took more than two years in the making. After sustained campaigns and fasts by anti-corruption crusader Anna Hazare and his one-time protégé Arvind Kejriwal, parliament was forced to pass the Lokpal Bill. Former Delhi chief minister Kejriwal, however, termed it ‘Jokepal’ because it did not include many of the Jan Lokpal provisions. The aim of the Lokpal, an empowered body at the central level, is to prevent and control corruption. It will receive complaints against most categories of public servants and ensure they are properly investigated by the CBI and other such agencies. Prosecution will be in a time-bound manner with the help of special courts set up for the purpose. The Act makes it incumbent on each state to pass a law within a year and setting up a body of Lokayuktas, but leaves it to them to work out the details. But the passage of appointing Lokpal members hasn’t been easy. Arun Jaitley, a senior BJP leader and head of the opposition in the Rajya Sabha, was the first to raise a banner of revolt. He objected to the Department of Personnel and Training (DOPT) putting out an advertisement inviting applications for the Lokpal members, saying it had no authority to do so. The PMO, under which DOPT functions, clarified that no rule had been flouted and the ad was meant to ensure that the ombudsman was established at the earliest. Another hiccup came up on February 4, when the first meeting took place between Lokpal selection committee members — leader of the opposition in the Lok Sabha Sushma Swaraj, Prime Minister
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AGREEING TO DISAGREE Leader of the opposition in Lok Sabha and Lokpal selection committee member Sushma Swaraj wants selection of the first member through concensus

Dr Manmohan Singh, Lok Sabha Speaker Meira Kumar and Chief Justice of India’s nominee Justice HL Dattu — to pick up an eminent jurist for the post of fourth member. It ended on a very bitter note, as Swaraj had picked former attorney general of India K Parasaran from those shortlisted, but two other members backed Singh’s choice of senior lawyer PP Rao. This angered Swaraj, who argued that the first key Lokpal member should be selected by consensus rather than majority vote. She petitioned President Pranab Mukherjee to intervene in the matter. The slugfest has disappointed experts, who are worried over the Lokpal’s future. Former CBI Director Joginder Singh termed it “wasteful exercise” that will overburden the “public exchequer.” Besides raising

The slugfest has disappointed experts, who are worried over the Lokpal’s future. Former CBI Director Joginder Singh termed it a wasteful exercise that will overburden the public exchequer.
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questions about how an eightmember body such as the Lokpal can come to a consensus on anything, he alleged that the body would only provide babus another post-retirement job option. “It is a creation of babus, will be controlled by babus and be used by babus,” he claimed. “Behind political power, it is they who wield power and make crucial decisions,” he said. Various sections of the Lokpal Bill had also led to confusion. CBI director Ranjit Sinha recently wrote to the law ministry seeking clarification on the Lokpal Act and the amended Central Vigilance Commission Act. Section 38 of the L&L Act has a provision to “divest such agency engaged or associated with the Lokpal of all powers” if an officer or employee of the office of the Lokpal or the agency engaged or associated is likely to destroy or in any way tamper with the evidence or influence witnesses in corruption cases. The director wanted clarity on whether an action of any one official could lead to the transfer of probe. Further, Section 25 says the Lokpal shall have powers of superintendence over the CBI and give directions to it in respect of preliminary enquiry and investigations provided by it. “It is not clear as to in what respect or areas such directions could be given by the Lokpal,” Sinha said in the letter. He also questioned who the CBI should follow if the same complaint is referred to both the Lokpal and the CVC, and they issue directions to the CBI. Section 46 (i) of the Lokpal dealing with those who make vexatious complaints says this process should be initiated only after the individual, against whom the complaint has been made, approaches the competent court. Says Sinha: “It is suggested that in case a false, frivolous or vexatious complaint is made against the CBI, then its director should also be authorized to make such complaints in court.”

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Center’s Lokpal vs Jan Lokpal of AAP: key points
SELECTION OF LOKPAL Central Government Lokpal: The chairperson and members appointed by the President, after obtaining the recommendations of a selection committee consisting of the Prime Minister , LS speaker, the Leader of Opposition in Lok Sabha and the Chief Justice of India or a judge of the Supreme Court nominated by him and one eminent jurist nominated by the President. Delhi Lokpal: Consists of Lokpal and 10 other members, who will be selected by a seven-member committee. The selection committee will have only two politicians — chief minister and leader of opposition, apart from two sitting high court judges, one previous Lokayukta and two eminent personalities who will be selected by other members. JURISDICTION Central Government Lokpal: No power to either initiate action suo motu in any case or even receive complaints of corruption from general public. Delhi Lokpal: Will be able to take suo motu cognizance of cases and will have wide-ranging powers to probe cases of corruption. WHISTLEBLOWER PROTECTION Central Government Lokpal: No protection. (Separate bill, if passed will take care of it). Delhi Lokpal: Has provisions for protection of identity of whistle-blowers and from harm or harassment, apart from framework to safeguard witnesses. PUNISHMENT Central Government Lokpal: Has no power to seize property of person under scrutiny. Delhi Lokpal: Has the power to seize the property of the person under scrutiny. MAXIMUM IMPRISONMENT Central Government Lokpal: 10 years. Delhi Lokpal: Life imprisonment. FRIVOLOUS COMPLAINTS Central Government Lokpal: Clause 46 provides for imprisonment for a term which may extend to one year and a fine which may extend to `1 lakh in case a complaint is found to be false and frivolous or vexatious. Delhi Lokpal: Fine of up to `5 lakh and maximum imprisonment of one year.

Senior lawyer Ram Jethmalani, in his weekly column in The Sunday Guardian, has pointed out another fatal flaw. He writes: “The procedure prescribed in respect of preliminary enquiry (PE) and investigation under section 20 is self contradiction. After receiving a complaint, the Lokpal may order (a) preliminary enquiry to ascertain whether there exists a prima facie case; (b) investigation by any agency where there exists a prima facie case. But the proviso in the same section stipulates that before ordering an investigation under clause (b) the Lokpal shall call the explanation of the public servant so as to determine whether there exists a prima facie case for investigation. Thus seeking the explanation of the public servant is mandatory before ordering investigation by the Lokpal.” He further adds: “The last proviso in the same section to the effect ‘that the seeking of explanation from the public ser-

Arun Jaitley objected to the Department of Personnel and Training putting out an advertisement inviting applications for the Lokpal members, saying it had no authority to do so.
vant before an investigation shall not interfere, with the search and seizure, if any, required to be undertaken by any agency’ is meaningless because unless the Lokpal authorizes the investigation by such agency, the agency does not get powers under the law to search and seize, and unless the Lokpal seeks an explanation from the public servant he cannot order investigation. There is a clear chicken and egg contradiction in this regard.” IL
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ACTS & BILLS/ jan lokpal bill/ analysis

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LOVE’S LABOR LOST
the controversial bill of arvind kejriwal finally did him in. unable to deliver on his promise to get it passed in the delhi assembly, he resigned. but why was the jan lokpal bill so crucial to kejriwal and what does the constitution say about tabling it?

W

ay back in 1987, a government committee had recommended that Delhi should continue to be a union territory, but have an assembly and a council of ministers. Thereafter, parliament enacted the 69th Constitution (Amendment) Act, and inserted Article 239 AA, which envisaged the formation of NCT (National Capital Territory) of Delhi to be administered by the lieutenant governor (LG). So what happens in case of a difference of opinion in legislative matters between the Delhi government and the LG? The 69th amendment clearly states that the LG will then have to refer all such matters and differences to the president. The NCT Act states that the assembly is barred from making laws dealing with pubMarch 15, 2014

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What happens in case of a difference of opinion in legislative matters between the Delhi government and the lieutenant governor? The 69th Constitution (Amendment) Act clearly states that the lieutenant governor will then have to refer it to the president.
lic order, police, land, offenses against laws in the state list, etc., as these are the exclusive domain of a state legislature. As for financial bills, prior permission of the LG is mandatory. This is similar to states taking prior permission of the governor under Article 207 for introduction of such a bill in the assembly. Prior approval

is also needed in the following cases: n Imposition, abolition, remission, alteration or regulation of any tax. n Amendment of law with respect to any financial obligation undertaken or to be undertaken by the government of the capital. n Appropriation of money out of the Consolidated Fund of Capital (CFC). n Declaring any expenditure as public expenditure charged on the CFC or increasing the amount of any such expenditure. n Receipt of money on account of the CFC or custody or issue of such money. It is also mandatory that if a bill involves expenditure from the CFC, it shall not be passed by the assembly unless the LG has consented to it. The act confers powers on the LG to refer a bill, if it is not a money one, for consideration of the president if it derogates the powers of the High Court.

GREAT GAMBLE (L-R) AAP leaders Manish Sisodia, Arvind Kejriwal and Kumar Vishwas at the political affairs committee meeting on January 19

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ACTS & BILLS/ lokpal

Lokpal and Lokayuktas Act 2013
l It provides that every state shall establish a

Lokayukta
l The Lokayukta will deal with complaints relating to

corruption against certain public functionaries
l It should be done within a period of one year from

the date of commencement of the central act
l Delhi government is well within its prerogative to

enact a new Lokayukta Act
l It can be done by amending or repealing the existing

one with similar or more stringent powers

In the field of concurrent legislation, any law passed by the assembly found to be repugnant to the law proposed by parliament shall be void unless assented to by the president. Lokpal being a concurrent field of legislation, presidential assent is a must. Failing this, the subsequent law passed by the assembly will become void. Laws have also been clearly laid down for transaction of business in NCT Delhi. According to Rule 55 of The Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 (TBR), the LG shall refer to the Union government every legislative proposal which attracts S/20 of the NCT Act. It is also incumbent on the LG to refer to appropriate central ministries all important cases, which, inter alia, affect or are likely to affect the peace and tranquility of Delhi. government bill can be introduced in the assembly provided it has the sanction from the president or the LG. The speaker has the authority to disallow the introduction of a bill for non-compliance of Business Rules. Ordinarily, the introduction of a bill is not opposed. Coming to the Lokpal and Lokayuktas Act 2013, it provides that every state shall establish a Lokayukta to deal with complaints relating to corruption against certain public functionaries within a period of one year from the date of commencement of the central act. The Delhi government is

A

well within its prerogative to enact a new Lokayukta Act by amending or repealing the extant one with similar or more stringent powers. Some legal luminaries have described Rule 55 of the TBR as ultra vires the constitution as it requires prior approval of the union government. Though the TBR cannot bind the assembly, the NCT Act and the TBR bind the government. The government can introduce a bill in either house of parliament strictly in compliance with the provisions of Article 117 of the constitution. It takes the prior consent of the president in case of financial bills, regardless of the fact that presidential assent has to be sought once the legislation is approved by both the houses of parliament. For legislative proposals initiated by private members, i.e., those other than ministers, prior approval of the president is invariably sought in case the bill attracts the provisions of Article 117. However, the government does not have the same liberty to introduce its own legislation for a mere debate without the intent to have it passed. Regarding the salary and allowances of the Lokayukta, such a bill cannot be introduced in the assembly except on the recommendation of the LG. The LG, under the circumstances outlined above, is not bound by the aid and advice of the council of ministers, but by the express provisions of the Constitution and the law. In hindsight, it was unfair to think that the NCT government would be denied approval to enact a new law which is mandated by the Lokpal and Lokayukta Act 2013. After all, the Uttarakhand government under Vijay Bahuguna had replaced the Lokayukta Act of the earlier BC Khanduri government. Now it is for the people to judge whether it is just and fair to obstruct or impede enactment of a law intended to cleanse public life. IL

Devender Singh is a Joint Secretary in Lok Sabha Secretariat and writes on contemporary constitutional and parliamentary themes. The views expressed here are personal.

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CORPORATE/ jitender bhargava / book banning

GOT AN OUT-OF-COURT SETTLEMENT WITH

“BLOOMSBURY PRAFUL PATEL
KEEPING ME IN THE DARK.”
In February, Penguin India withdrew Wendy Doniger’s book,The Hindus: An Alternative History, saying it had “an obligation to respect the laws of the land, however intolerant or restrictive.”

This is just another instance of publishers succumbing to pressure, either from politically correct activists or politicians who may find certain books inconvenient. Falling in the same category is former Air India
executive director JITENDER BHARGAVA’S book, The Descent of Air India. All copies of it were withdrawn by Bloomsbury Publishing early this year under pressure from Heavy Industries Minister Praful Patel and an apology was proffered to him. The
book, released in October 2013, lays the blame for Air India’s downfall on wrong decisions and political interference. Bhargava tells SHOBHA JOHN that he is unfazed and will get his book re-published.
In the light of Penguin withdrawing Wendy Doniger’s book, do you think free speech is being curbed in India despite the laws of the land? What does it bode for the country?

Q: A:

Even though the constitution of India guarantees freedom of

expression to every citizen, it isn’t a reality as recent instances are proving. Radical elements and powerful individuals lacking tolerance or the ability to face the truth are either protesting on the streets or taking legal recourse to put fear in those who have mustered the courage to speak out. I must, however, state that no right is absolute and

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no one can enjoy any blanket authority to write what one wishes to, unless what’s written can be backed by evidence. I am a staunch proponent of self-censorship and have exercised it while writing my book. Numerous acts of wrongdoings that harmed Air India (AI) were not included in the book solely because I did not have the supporting documents. It is because of this that I averred in a court in Mumbai that I will prove everything that I have stated in the book. This is a rare instance of a publisher pulling out a book. Did Bloomsbury speak to you before doing so? Bloomsbury’s decision is unprecedented and unfortunate. What made it unethical was that it decided to get into an out-of-court settlement with Praful Patel by keeping me in the dark.

THE WHISTLEBLOWER Startling disclosures on what led to Air India’s fall from grace over the years abound in Jitender Bhargava’s book

Q: A:

Q: A:

What are you going to do about it?

that necessitated him to take action against the publisher? The book is a narration of the tragic decline of what was once India’s iconic airline. During Patel’s time as aviation minister and V Thulasidas as AI chairman, the airline suffered the most. In a chapter dealing with the system of appointment of IAS officers as CMD and the power ministers wield in this selection, I have cited how Raghu Menon was dismissed overnight in the midst of the 2009 general elections and how Arvind Jadhav was appointed. I have cited how some aircraft were leased even when they did not meet the specifications advertised in the tender and how more planes were acquired than Air India could afford or gainfully deploy. I have also mentioned how Air India was forced to buy costly gifts during Diwali for journalists, how Patel decided to offer tickets to the entire Indian cricket team and their family members for five years on winning the T20 world championship in 2007

I am baffled by Bloomsbury’s action, but not unduly perturbed by it. I will get the book re-published soon. I was on the verge of signing an agreement with a digital company for an e-book version, but as this company had inserted certain clauses to safeguard what they believed were ‘risks’ in publishing my book, I did not pursue it. I am in talks with some other companies now. I am already updating the book for a third print-run by adding the latest developments. I am overwhelmed by the public support on social media because in the current environment, everyone wants action against corruption. Some have suggested I join Aam Admi Party (AAP) and contest against Praful Patel, but I am not thinking on those lines.

A:

Q:

What are the specific allegations you have made against Patel

“The book is a narration of the tragic decline of what was once India’s iconic airline. During Praful Patel’s time as aviation minister and V Thulasidas as AI chairman, the airline suffered the most.”
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CORPORATE/ jitender bhargava / book banning

and how an advertising campaign worth ‘18 cr was released to highlight his performance on the eve of the 2009 elections by seeking contributions from all airlines and airport operators. All these were done with no regard to Air India’s deteriorating financial position. If Praful Patel believes that by doing all this and much more mentioned in the book, he has done no wrong, I will prove it in court. Do you have concrete evidence of Patel’s wrongdoings or is it hearsay? Every instance in the book is backed by documents. I have excluded reference to instances for which I do not have documents. For example, the erstwhile Indian Airlines A321 fleet was given registration numbers as VT-PPA, VT-PPB, VTPPC, etc, with PP standing for Praful Patel. But as I did not know whether the initiative for such registration numbers came from the minister or some sycophant official proposed it to him, I did not include it. Likewise, the way land in possession of Air India was given away to GMR and GVK in Delhi and Mumbai for expansion wasn’t included because I did not have the documents to conclusively establish that the airline wasn’t given a fair compensation for the land transfers.

I took adequate care to ensure that the book was credible and all instances cited can be proved. Your book is a hot potato for many. Are you brave or naïve? Many of these allegations were raised by AI unions, but nothing came out of it. Everyone at every level has, in some measure, contributed to AI’s tragic journey. I don’t regard myself as either brave or naïve, but just an individual with a fervent desire to let the world know how this airline was destroyed, what needs to be done to put it back on track and that the guilty should be held accountable. The unions raised various issues, but they weren’t documented in the manner that a book can. It is perhaps because of the documentation that Prashant Bhushan has filed chapter 10 of my book dealing with aircraft acquisition as a supplementary affidavit in the special leave petition pending before the Supreme Court. You mentioned on Facebook that Patel tried to obstruct the sale of your book at airports. Isn’t this an allegation? It’s a fact that my book was not available at the Delhi and Mumbai airports. One would be naïve to believe that the decision not to allow an aviationrelated book to be sold at airports was taken by the book shops and no pressure was put on them. You also mentioned that Patel forced a TV channel to drop a programme related to the book. Which channel was this? I am not naming the news channel, but it is a fact that after the interview had been recorded for telecast in the evening, it was dropped after Patel spoke to the channel owner.

Q:

Q: A:

A:

Q: A:

“Even though the constitution of India guarantees freedom of expression to every citizen, it isn’t a reality, as recent instances are proving. Radical elements and powerful individuals lacking tolerance or the ability to face the truth are either protesting on the streets or taking legal recourse to put fear in those who have mustered the courage to speak out.”
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Q: A:

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PIB

Will your allegations stick? Have you got any support from politicians? Praful Patel is undoubtedly a powerful minister. It is not for me to say whether the allegations will stick or not, but all I can assert is that if each one of the instances are taken to the logical end, guilt can be established and those responsible for the injudicious decisions can be identified. I haven’t sought the support of any politician.

Q: A:

Some say it’s easy to write this book after you’ve retired. But did you shoot down wrong proposals when you were AI executive director?

Q: A:

IN LINE OF FIRE The book blames former Civil Aviation Minister Shahnawaz Hussain for interfering in Air India’s functioning

CREDIBILITY CRISIS Bhargava has made specific allegations against former Civil Aviation Minister Praful Patel

UNDER THE SCANNER Ghulam Nabi Azad has been accused of tampering with the selection process while he was at the helm

This is an interesting question and is put to everyone who writes or speaks after retirement, the latest case being that of a former home secretary making charges against the home minister. While in service, one is governed by a code of conduct and any violation of that can invite disciplinary action. The only option is to quit, but can anyone do that and become a social activist? There are many instances when I stood up for AI. In one case, a civil aviation minister wanted rejected candidates for the posts of air hostess and purser to be appointed; I said no. I also never allowed unions to bulldoze me into conceding illegitimate demands. Who is this minister? What other cases of political interference in AI have you mentioned in the book? I have mentioned the name of Ghulam Nabi Azad, who, as civil aviation minister, wanted candidates rejected in the selection process to be appointed as air hostesses and pursers. Other instances in the book include AH Jung, former civil aviation secretary, wanting a caterer to be

awarded a contract in London even though that company’s quote was higher than that of the catering agency selected by the tender committee. Then, there was Shahnawaz Hussain who wanted Kerala massage to be introduced on board AI flights… Has the situation in AI improved now and are the unions better behaved? The airline has shown some improvement in its performance. But the improvement in revenues and load factors are more a consequence of Kingfisher exiting the market. I have stated in the book that systemic, not cosmetic, changes are needed for putting AI back on track and the management needs to be professionalized. It is regrettable that no action on changes that can bring sustained improvement in performance is being taken. With its high debt and mounting cumulative losses, it is difficult to forecast its future. I sincerely hope the new government, post-elections, will take a serious call on the future of AI. As for unions, the reality is that their clout has disappeared due to the marginalization of AI. IL

Q: A:

Q: A:

Shobha John is a senior Delhi-based freelance journalist
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CASE STUDY/ lawmakers / unruly behavior

TERROR TACTICS The after-effects of the pepper spray unleashed by Congress MP L Rajagopal (now expelled) during clashes over the Telengana Bill in the Lok Sabha

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LOOSE CANNON
it is time to question why our elected representatives should enjoy immunity for purported criminal actions in parliament By Girish Nikam

LEGISLATORS
ust consider these facts about the 15th Lok Sabha which ended its last session on February 21, 2014. During the five years of its tenure, it met for a mere 347 days; of this, almost half the days were disrupted either partially or completely. In comparison, the first three Lok Sabhas (1952-57; 1957-62 and 1962-67) sat for an average of 600 days each. Almost 60 percent of the question hour time in both the houses of the 15th Lok Sabha was disrupted. In the second part of the winter session, in effect the last one of this parliament, the daily question hour was not taken up due to the disruptions, except on the last day of the Lok Sabha. The Rajya Sabha fared even worse. It had the dubious distinction of not having taken up the question hour in both the first and second phases of the winter session (2013-14). The total time spent on legislative debates during this Lok Sabha was 23 percent, compared to 49 percent during the first Lok Sabha. Worse, 35 percent of the 170 bills passed in this Lok Sabha – the lowest ever for any Lok Sabha that enjoyed a five-year term – were debated for an hour or less.

J

March 15, 2014

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PIB

ON THE RADAR Telegu Desam Party leaders from Telangana calling on the prime minister. The ugly reactions of MPs in parliament over the statehood issue will put them under strict surveillance in the future

The average time spent on discussing the annual general budget in the past decade came down from 123 hours in the 1950s to just 39 hours. While these statistics about the current Lok Sabha are depressing, the behavior of the parliamentarians plummeted in the past few years. The members routinely walked into the well of the two houses, remained there for prolonged periods of time and disrupted both the houses. Adjournments became the norm. The worst session was the second part of the winter session in 2014.

Here was an MP who carried a potentially harmful instrument into the parliament, and used it against other members. Would this action be covered under Article 105(2)? The answer is an obvious no because the clause does not cover acts of physical harm.
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On February 18, the now-expelled Congress MP, Lagadapati Rajagopal from Andhra Pradesh, walked into the well of the lower house, pulled out a pepper spray from his pocket and indiscriminately used it against other members, causing bedlam. Another MP allegedly carried a knife inside the Lok Sabha. The two incidents did create outrage in the media and outside for a few days, but it died down without an understanding of the larger implications of possibly the most shameful behavior witnessed on the floor of the parliament. These acts – the knife incident was denied by the concerned MP, but confirmed by the Parliamentary Affairs Minister Kamal Nath on TV news channels – opened up an important debate. What constitutes the immunity for MPs from various acts, and whether the two incidents fall under this overall ambit of immunity? Article 105(2) of the constitution states that “no member of parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by

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him in parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either house of parliament of any report, paper, votes or proceedings.” A simple reading of the clause proves that immunity is restricted to “anything said” or “any vote given”. In fact, in the JMM bribery case judgment too the question of immunity from acts of corruption was discussed. There were other cases in which the question of criminal actions by MPs and MLAs was decided by the apex court. But the Rajagopal episode added a new dimension to the debate. Here was an MP, who carried a potentially harmful instrument into the parliament and used it against other members. Would this action be granted immunity under Article 105(2)? The answer is an obvious no because the clause does not cover acts of physical harm. But who could take action against such erring members? Outside the parliament, the acts of pepper spray and knife would attract provisions of the Indian Penal Code. FIRs would have been filed for criminal actions against the individuals.

KN Bhat, a former additional solicitor general of India, felt that there should be a football-like card system for MPs. Any member could be warned twice for his acts, such as misbehavior, disruptions and sloganeering, before an automatic action the third time.
Lok Sabha or the chairman of the Rajya Sabha have the powers to initiate actions like asking the police to file an FIR against such members without involving the privileges committee or any other special committee? According to Deo, there is no existing restriction on the presiding officers to take suo motu action. Meanwhile, the debate enlarged to why should the MPs not be frisked as they enter parliament? The Rajagopal episode added urgency to this question. Yechury categorically says: “Now I don’t see any reason why MPs should be absolved from frisking when everyone else is subjected to it.” The steady deterioration of the MPs’ behavior should result in stricter implementation of the disciplinary provisions enjoyed by the parliament’s presiding officers. KN Bhat, a former additional solicitor general of India, felt that there should be a football-like card system for MPs. Any member could be warned twice for his acts, such as misbehavior, disruptions and sloganeering, before an automatic action the third time. The latter could include the filing of an FIR by the police. “Only when we think of such serious actions can we see the parliament’s dignity and credibility being restored,” says Bhat. He adds that parliamentarians should be expelled and barred from contesting at least one immediate election for criminal acts inside parliament. Bhat’s solution is harsh, but one cannot deny that the parliamentarians have brought this upon themselves. They need to shape up, or be shipped out. IL
March 15, 2014

I

n the Rajagopal case, the Speaker of the Lok Sabha Meira Kumar did issue a notice to him and the Congress party expelled him. But she did not ask the Delhi police to file an FIR against Rajagopal. Instead, a couple of days later, Kumar referred the matter to the parliament’s privileges committee. It’s not surprising that the committee has said nothing on the issue as the parliament’s term has ended. V Kishore Chandra Deo, a union minister who has headed several parliamentary committees, including the privileges committee, felt that such actions needed to be acted against without delay. “This is an obviously criminal action which cannot come under the ambit of immunity by any stretch of imagination,” he says. Sitaram Yechury, the CPI(M) leader in the Rajya Sabha, endorsed this view: “I am for criminal charges against such members.” The question: should the Speaker of the

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CASE STUDY/ death-row debate

FREEDOM TO THE

KILLER

?

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PIB

WITH THE SUPREME COURT GRANTING REMISSION TO RAJIV GANDHI’S ASSASSINS, LEGAL EXPERTS AND LEADERS DEBATE THE RAMIFICATIONS

By Rakesh Bhatnagar

T

here has been an understandable hullabaloo over the three assassins of the late prime minister, Rajiv Gandhi, who were granted remission by the Supreme Court. The Congress-led UPA government failed to satisfactorily explain why it took 11 years to take a call on their plea for mercy. There was outburst against J Jayalalitha, the chief minister of Tamil Nadu, when she showed extraordinary haste and directed the release of the assassins, whose death sentences had been changed to life sentences. The assassins have been behind bars for 23 years against the reasonable limit of 20 years. The Supreme Court stayed the release for a few weeks, and the case would come up for hearing in mid-March. However, there hasn’t been much debate on the centre’s explanation, or the lack of it, for the delays in rejecting the mercy pleas of the convicts. There’s no doubt that a time limit cannot be fixed for the executive or the president to dispose of a prisoner’s mercy petition. However, it is still expected that a decision should be taken within “reasonable” time, and 11 years can

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CASE STUDY/ death-row debate

DELAY SAVES THEM FROM DEATH (L-R) Murugan, Perarivalan and Santhan, whose death sentence in the Rajiv Gandhi assassination case has been remitted by the Supreme Court

in no way be dubbed as reasonable by any stretch of imagination in a case where the life of a convict is involved. FLIMSY JUSTIFICATION As if this wasn’t serious enough, the country’s top law officer, Goolam E Vahanvati, the attorney general for India, strengthened the Supreme Court’s stance to allow the petitions filed by the three assassins, Santhan, Murugan and Perarivalan, who were to be hanged. In his arguments, he said that “shortly after the receipt of the mercy petitions in 2000, a note was prepared but thereafter the file was lying in the drawer of some officer of the ministry of home affairs, and, hence, could not be processed”. This kind of a justification implied that the government generally took the apex court “for granted”, and thought that the argument would turn out to be a ground to claim that the delay was a legitimate one. Since public memory is short, this would be the apt place to remind the readers about another instance, when the NDA government sought to seek a review of the judgment in the JMM bribery case. The order declared that “bribe taking (by a legislator) is not an offense, but bribe giving is”. Six months after the judgment, which paved the way for cases and trials against former Prime Minister Narasimha Rao and some of his cabinet colleagues for bribing JMM MPs, including Shibu Soren, in the early 1990s, the legal officials in the NDA regime told the court that they couldn’t expeditiously file the review petition as the ministry concerned couldn’t arrange for a typewriter. NOT A TERROR ACT The UPA-II’s stance on the clemency for Gandhi’s assassins and their freedom has raked up a legal debate not only over the unbridled power vested in a governor or the president, but also on the legitimacy of the death penalty.

While holding the assassins guilty of killing Gandhi at a public meeting in Sriperumbudur, a village approximately 30 miles from Chennai in Tamil Nadu, on May 21, 1991, the Supreme Court judge KT Thomas held that the assassination was due to the personal animosity of the LTTE chief, Prabhakaran towards the former Indian prime minister. LTTE was angry with Gandhi’s decision to send the Indian Peace Keeping Force (IPKF) to Sri Lanka, and the subsequent alleged atrocities of the Indian army against Sri Lankan Tamils. The Rajiv Gandhi administration had also antagonised other Tamil militant organisations like the People’s Liberation Organisation of Tamil Eelam (PLOTE), when India had reversed the military coup in Maldives in 1988. Ironically, in its judgment delivered on May 11, 1999, the apex court didn’t agree that the assassination, although masterminded in Sri Lanka to avenge India’s IPKF actions, was an act of terrorism against the country. But it still allowed the prosecution case to be filed under the legal provisions of the anti-terror law, TADA, which has since been repealed. The crucial aspect of the case was that a statement made by an accused terrorist to the police was admissible as evidence. In the Gandhi case, the Supreme Court found it difficult to “conclude that the conspirators intended, at any time, to overawe the Government of India as by law established. Nor can we hold that the conspirators ever entertained an intention to strike terror in people or any section thereof. The mere fact that their action resulted in the killing of 18 persons, which would have struck great terror in the people of India, has been projected as evidence that they intended to strike terror in people”. The court added: “We have no doubt that the aftermath of the carnage at Sriperumpudur had bubbled up waves of shock and terror throughout India. But there is absolutely no evidence that any one of the

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POWER STRUGGLE Tamil Nadu Chief Minister J Jayalalitha’s decision to free the killers of Rajiv Gandhi has put the spotlight on the state’s jurisdiction in such cases

release of the three prisoners by Tamil Nadu CM by stating that a state couldn’t decide the fate of convicts who were punished under the various central legislations and acts. More importantly, the government could tell the court that the prosecution in the case was conducted by the central investigating agency, CBI. PAST PRECEDENT Legal experts contend that the government may not succeed. The Supreme Court is likely to retain its earlier view on remission, and also the convict’s right to seek freedom from the high walls of the prison. In the past, the court had said that two years of delay was a legally-sustainable ground to seek a reprieve by a death convict. Later, some of the judges maintained that the court couldn’t interfere in the constitutional powers granted to a governor (under Article 72) and president (under Article 161). However, the operative portions of such judgments said that “It is held that these provisions provide a ray of hope to the condemned prisoner and his family members for commutation of death sentence into life imprisonment”. Therefore, such orders ruled that “the executive should step up and exercise its time-honoured tradition of clemency power guaranteed in the constitution one way or the other within a reasonable time”. But the power to grant remission by the state has been criticized. In 2005, the country was shocked when the then governor of Andhra Pradesh and present home minister, Sushil Kumar Shinde, allowed the state’s Congress government to free a life convict, Epuru Sudhakar. The governor said that if he was “prematurely released, his life would be safe because his wife is a sitting MLA and she is having a police security.” Another reason for the release was: Sudhakar was “a good Congress worker”. The apex court rejected Shinde’s decision, and remarked that “the only reason why a pariah becomes a messiah appears to be the change in the ruling pattern. With such pliable bureaucracy, there is need for deeper scrutiny when power of pardon or remission is exercised”. Wait for the Supreme Court’s final ruling on Jayalalitha. IL
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conspirators ever desired the death of any Indian other than Rajiv Gandhi. Among the series of confessions made by a record number of accused in any single case, as in this case, not even one of them has stated that anybody had the desire or intention to murder one more person along with Rajiv Gandhi except perhaps the murderer herself. Of course they should have anticipated that in such a dastardly action more lives would be vulnerable to peril”. POLITICAL MOVES The present crisis over the release of Rajiv Gandhi killers has culminated into a different kind of a legal controversy, which was propelled by the decision taken by Jayalalitha, possibly to garner votes in the forthcoming national elections, and put her political opponent, DMK, an ally of the Congress-led UPA, on the backfoot. If Jayalalitha acted in haste, so did the central government and Congress party. The party’s vice president and Rajiv Gandhi’s son, Rahul Gandhi, said he was shocked and “saddened” by the AIADMK’s decision. Prime Minister Dr Manmohan Singh added that he was personally against the death penalty, but if a prime minister’s killers are being set free, what justice can the common man expect? The PM tweeted that the “release of the killers of a former PM of India, our great leader, and other innocent Indians would be contrary to all principles of justice”. Suddenly, the UPA sprang into action. It successfully managed a stay on the TN government’s decision, and urged the Supreme Court to review its judgment that a death convict is entitled to a remission in cases where there are long and unexplained delays in disposing of the mercy pleas. The centre might be able to argue against the

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SPORTS/ IOC row

Self goal for Indian athletes
politicians and industrialists, who remote control the associations, have shamed india at the recently-concluded winter olympics in sochi

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t was a deflating image. Three Indian athletes walked under the flag of the International Olympic Committee (IOC) as “Independent Olympic Participants” at the opening ceremony of the Sochi Winter Olympic Games on February 7. An official of the Indian Olympic Association (IOA), whose suspension had led to this ghastly image being relayed live back home, had callously swatted the concerns away. “They weren’t going to win medals anyway,” he reasoned. Indian athletes had joined the ranks of players from countries, such as Kuwait, Panama and Ghana, who had suffered a similar ignominy at the Olympic Games in the past. Going for his fifth winter Olympics, luge athlete Shiva Keshavan described the moment as “demoralizing and one of the greatest humiliations in the history of Indian sports.” However, nine days later, the Indian tricolour was finally hoisted at the Olympic village. And, as the games drew to an end, Indian athletes

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Getty Images

Keshavan, alpine skier Himanshu Thakur and cross-country skier Nadeem Iqbal walked under the national flag with their heads held high as the tricolor flew at the closing ceremony. These redeeming developments were the result of an “election” on February 9, where a majority of office bearers were voted unopposed into positions of authority in the IOA. It ended the association’s 15-month-long suspension from the international movement. IOC observers, who were in New Delhi to oversee the process, reported back to the IOC executive board that the “elections were held in full respect of the recently passed National Olympic Committee Constitution, which complies with all IOC requirements, including the clause that no person convicted or charge-framed can run for a position within the organization.” PREDICTABLE MOVES Almost on cue, ecstatic IOA officials went into backslapping, as the national flag was

initially raised at the Olympic village in Sochi, but not at the games. Newly-elected IOA president Narayanaswami Ramachandran, who also serves as the president of the World Squash Federation, found recourse in a practised response: “We want to work for the benefit of athletes. They should be the beneficiaries”. For those interested in Indian sport, words such as these have a shallow ring. The association that Ramachandran has been mandated to lead was responsible in the first place for this moment of unqualified shame. India’s Olympic bosses had squabbled ferociously during their exile to cling to the turf and, worse, to protect the blatantly tainted among them. THOSE WHO SELF-SERVE A chapter titled Mr Indian Official: Thanks for Nothing in India’s lone individual goldmedallist Abhinav Bindra’s autobiography A Shot at History bears testimony to the sorry state of affairs prevailing in the sports

PRIDE RESTORED Indian cross country skier Nadeem Iqbal (in red jacket) and luge athlete Shiva Keshavan (fourth from left) at the national flag-raising ceremony at the Olympic village

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SPORTS/ IOC row

Photo courtesy: www.shivakesavan.com

INDEFATIGABLE FIGHTER Indian luge athlete Shiva Keshavan participating in his fifth Winter Olympics at Sochi

As Indian sport languished in mediocrity, the demagogues, who ran the various federations, merrily functioned with little scrutiny.
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establishments. The author brings out how the athlete, meant to be the center point of all sporting endeavors, is consigned to the bottom of the pyramid. In fact he/she becomes a mere tool in a larger exercise meant to build fiefdoms. For years, as Indian sport languished in mediocrity, the demagogues, who ran the various federations, merrily functioned with little scrutiny. But as determined young men and women broke the glass ceiling and started winning medals, they won adulation and an audience for their awesome stories. Ironically, within a few months after an unprecedented six-medal haul at the London Olympics, the IOA was suspended from the international movement. The refusal to dispense with the tainted officials was the final straw. “We have come a long way”, says BVP Rao, convener of Clean Sports India, a pressure group operating for the last few years to cleanse the system, “People like Suresh Kalmadi, Lalit Bhanot and Abhay Chautala can no longer contest polls. This is one step ahead of even the parliament, where being chargesheeted is not enough to lose one’s seat,” he adds. However, Rahul Mehra, a firebrand lawyer, who continues to fight a high-octane legal battle against the IOA, believes the IOC was in a “tearing hurry” to restore India’s membership. He says the IOA election results are subject to the final decision by the Delhi High Court in a public interest litigation (PIL) he has filed against the IOA and

other national sports federations. Mehra argues the elections were a “sham” and the likes of Chautala and Bhanot will continue to run the show behind the scenes having “hijacked the reform process”. Mehra insists the outrage must not subside, as “these are fiefdoms that have been distributed at the cost of Indians.” There are also those who doubt Ramachandran’s stature to erase the deeprooted trust deficit among the Indian sport administrators. He faces serious allegations of allegedly misleading the government, forgery and manipulation. Among these is a charge in a court that he misled the government to get the Rashtriya Khel Protsahan Purashkar in 2011. Rao feels the “onus is on Ramachandran to clear his name.” Only then will he have credibility as a leader. MASTER OF ALL GAMES Other allegations confronting Ramachandran are just as serious. In an ironic twist, similar to that in his brother and cricket board chief N Srinivasan’s case, he is accused of a ‘conflict of interest’ for violating the IOC’s code of ethics. Ramachandran had given an undertaking to the World Squash Federation in 2012 that he had no commercial interest in the game and designated himself just as patron of Squash and Racquet Federation of India. However, he continued to be the president of the Indian federation. Ramachandran has other battlefronts to dodge as he steps in as IOA president. In a

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PIB

NEED TO GO BEYOND LIP SERVICE Beijing Olympic gold medalist Abhinav Bindra being greeted by the then President Pratibha Patil as former CWG Organising Committee Chairman Suresh Kalmadi looks on

India’s Olympic bosses had squabbled ferociously during their exile to cling to the turf and, worse, to protect the blatantly tainted among them.

PIL filed by Lokdeeksha, a sports law initiative, its founder Hemanshu Chaturvedi has raised a fundamental question. Should the office-bearers of a national Olympic committee be representatives of sports that are not part of the Olympic Games at all? Squash, whose world body Ramachandran represents, isn’t part of the Olympic programme. Neither is kho-kho, whose National President Rajeev Mehta was elected to the second most prestigious position, the secretary general of the IOA. In his writ before the Delhi High Court, Chaturvedi argues, “According to IOC charter and amended IOA rules & regulations, office bearers of the Olympic committee can only be from 35 games (28 Summer Olympic and 7 Winter Olympics).” He adds that the clause is only to make sure that people carrying the “torch” of Olympic movement should be from the area which they can lead. In India cosmetic surgery is done in every sports body, the interests of sportspersons are the last priority and people raising their voice for the benefit of sportsperson are sidelined. IT’S ATHLETES’ TURN Beyond these torrid battlegrounds, the resistance to significant change remains. For instance, while in keeping with IOC direc-

tions, the age of the president, treasurer and secretary was capped at 70; other functionaries have no such upper limit. In fact, a very large number of officials ‘elected’ recently are well over 70. Rao insists the “fight for reforms” will continue. One of the stated aims of Rao’s Clean Sports India initiative is to ensure former sportspersons come forward to manage their own sports. “The inactivism of former sportspersons has left the arena open for politicians and other non-sportspersons to continue mismanagement of sports in our country. Most of them who have occupied positions in federations for several decades do not leave these lucrative posts, as there is absolutely no threat from our former sportspersons,” he says. The election process ensured Indian athletes marched under the tri-colour at the closing ceremony of the games. But this is a mere stepping-stone. A drastic overhaul of the sports establishment is no longer negotiable and neither should it be. With the Asian and Commonwealth Games later this year, Indian athletes will storm back not just onto TV screens and back-pages but also into national consciousness. And, the men and women who run Indian sport know they no longer enjoy a free and unrestrained reign. IL
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CORPORATE / Kejriwal vs Ambani

DID RIL REALLY REAP A WINDFALL?

an faq analysis of the complexities behind the fir that alleges a sweetheart deal between congress ministers and a businessman

I
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t was a strategic masterstroke. On February 12, 2014, Delhi’s Anti-Corruption Branch (ACB) filed an FIR against a former petroleum minister, Murli Deora, the current petroleum minister, Veerappa Moily, and the richest Indian and the promoter of Reliance Industries Ltd (RIL), Mukesh Ambani. The FIR alleged that the trio hatched a conspiracy to twice raise the prices of natural gas produced by RIL by 260 percent in seven years (2007-14). In return, Ambani promised help to fight the national elections in 2009 and 2014. The next day, the then Delhi Chief Minister Arvind Kejriwal, who ordered the FIR, introduced the Jan Lokpal Bill in the state assembly. The two opposition parties, Congress and BJP, did not allow it to be tabled. On Valentine’s Day (February 14, 2014), Kejriwal announced the resignation of his government and urged Lieutenant Governor Najeeb Jung to opt for re-elections, but the later imposed president’s rule. The Aam Admi Party (AAP)’s regime lasted 49 days. From the open window pane of AAP’s headquarters at the capital’s Hanuman Road, Kejriwal explained why he quit. “Three days ago, we registered an FIR against Mukesh Ambani. Ambani is that man who runs our government. He said ‘Congress is my shop, I can buy it all.’ For the past year, he has also funded

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Narendra Modi (BJP’s PM candidate).” It was Ambani, according to Kejriwal, who got the Congress and BJP to oppose his government’s Jan Lokpal Bill. It was a classic argument, which was aimed at garnering votes in the forthcoming national elections scheduled in April-May 2014. As political events in Delhi churned within those 72 hours, everyone forgot the genesis of these developments: the FIR filed against the Congress ministers and a businessman. What was the brouhaha about? Why is the central government being criticized for the hike in natural gas prices and doling out benefits to Ambani? What are the politics and economics behind the gas pricing issue? Why does the government fix gas prices? The prices of most products are not regulated by the government. The supply-demand

trends determine their prices. But there are a few products, such as diesel, fertilizers, liquefied petroleum gas and natural gas, whose prices are decided by the policy makers. The reason: these items are subsidized in a bid to boost economic growth, or help certain user industries or sections of the society. In the case of natural gas, the government was also asked to fix the prices by the Supreme Court. In a May 2010 judgment, the apex court stated that natural resources (gas, oil and minerals) belonged to the people of the country. “Natural resources are vested with the government as a matter of trust in the name of the people of India…,” it read. Thus, the “Government in the capacity as an Executive of the Union can regulate and distribute the manner of sale of Natural Gas through allotments and allocations.…

MOVERS AND SHAKERS Arvind Kejriwal (L) believes it was at the behest of Mukesh Ambani (R) that the Congress and the BJP opposed his Jan Lokpal Bill

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According to Arvind Kejriwal, the former petroleum minister, Murli Deora, hiked RIL’s gas price from $2.34 to $4.2, or 80 percent. In January 2014, the current petroleum minister, Veerappa Moily, announced a new price, $8.4, or double the existing one.
Therefore, for legal purposes, the Government owns the gas till it reaches the final consumer.” As the owner, the government had the right to fix gas prices. There was a third reason why the government was involved in the pricing of gas. Over the past several years, India had leased out oil and gas fields to private exploration firms, including foreigners, through a bidding process. Under the contract signed between the government and private firms, a formula allowed both parties to share profits. The estimated and recoverable oil or gas reserve in any field was divided into costpetroleum and profit-petroleum. Cost-petroleum allowed the private firms to initially recover their costs, which could run into billions of dollars, through the sale of the fuel. Once most of the expenses were accounted for, the remaining portion of the reserve was dubbed as profit-petroleum,

whose revenues were shared between the explorer and government. The price at which the fuel was sold was critical in the calculation of profit-petroleum. If the price was low, the private explorer would need to sell more quantities of gas to recover its costs, and the portion of profitpetroleum would come down drastically. If the price was high, a larger slice of the pie would be left to be shared with the government. This was why the contract insisted that the government would be the final judge to decide the price at which the fuel was sold. How does the government fix prices? For the past several years, an empowered Group of Ministers (eGoM), which included representatives from user ministries like power and fertilizers, received various inputs from gas exploration firms and announced a price that was closer to the market rate. For example, in September 2007, an eGoM decided that RIL could sell gas at $4.2 per mmBTU (million metric British Thermal Units). However, this was an arbitrary process, as ministries lobbied for a higher or lower price. The government appointed a committee, headed by C Rangarajan, the chairman of PM’s Economic Advisory Council, to finalize a formula to calculate the gas price. Rangarajan proposed a weighted average of two sets of prices — the average that India paid to import gas, and the average that ruled in three global user markets, Japan, UK and the US. In December 2013, the cabinet accepted the formula, and agreed that although the price would be valid for five years, it would be reviewed every quarter. Did the government benefit Ambani? According to Kejriwal, the former petroleum minister, Murli Deora, hiked RIL’s gas prices from $2.34 to $4.2, or 80 percent, which enabled the Ambani-promoted company to rake in huge profits. In January 2014, the current petroleum minister, Veerappa Moily, announced a new price, $8.4, or double the existing one. The higher price was applicable from April 1, 2014, and based on the Rangarajan formula.

Monitoring structure
It was the Anti-Corruption Branch (ACB) of the Delhi government which filed the FIR against a former minister and a present minister, besides the richest Indian. What is the jurisdiction of this organization?
According to Delhi government’s website, the ACB is part of the Directorate of Vigilance, headed by director (vigilance). The directorate is under the overall supervision of the chief secretary. Quarterly reports from all vigilance officers are obtained in a businesslike proforma. The ACB not only investigates the cases of corruption against public servants for offences punishable under Chapter IX of IPC and various other provisions of Prevention of Corruption Act, 1988, but also conducts vigilance enquiries against them. ACB has also been declared as a ‘police station’, having jurisdiction over National Capital Territory (NCT) of Delhi. It is empowered to lay traps against the employees of the Delhi government, local bodies, other state and central government departments and their undertakings located in the entire extent of the NCT.

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PIB

During Jaipal Reddy’s tenure as the petroleum minister in 2011-12, RIL sought a higher increase in gas price from $4.2 to $14.2. Reddy rejected it on the ground that the eGoM’s price of $4.2 was applicable until March 2014. In his note to the eGoM, Reddy wrote that a higher price of $14.2 would translate into “an additional profit of `43,000 cr (in two years) to RIL at current levels of… production.” In October 2012, Kejriwal charged that this was why Reddy was replaced by Moily. Kejriwal’s estimates showed that the forthcoming hike in gas price, from $4.2 to $8.4, would cost the country an additional `54,000 cr, and allow RIL alone to make a windfall profit of `1,20,000 cr. In several notes prepared for the Cabinet Committee on Economic Affairs, the government admitted that every dollar increase in gas price would add `2 per unit to the price of power, and `6,000 per ton to that of fertilizers. If the government wished that the hikes were not passed on to the consumers, it would need to increase the annual subsidy bill. The logic was that the government had helped RIL at the expense of the user sectors, or the taxpayers, who would finance the higher subsidy. Experts questioned the Rangarajan formula and concluded that it was designed

to help Ambani. They criticized the inclusion of Japan’s gas price, which was among the highest in the world, in the calculation. They contended that the price of domestic gas, or for that matter any other fuel, should not be linked to the global prices. The former had to be lower to boost economic growth in certain sectors. The government’s counter was that the oil ministers could not be blamed for the decisions to hike gas prices, Ambani was not the only beneficiary of the increases, and Indian prices were lower than the global benchmarks. It was not Deora, but an eGoM that had hiked the gas price from $2.34 to $4.2 in 2007. It was not Moily, but the cabinet, which decided to double it to $8.4. Both the price hikes applied, not just to RIL, but to every exploration firm, and included the state-owned ONGC, the largest domestic producer. The biggest beneficiary was ONGC, whose prices went up from $1.8 to $4.2, or more than double, in 2007. The advantage to RIL was miniscule, as its gas production plummeted from 70 mmscmd (million metric standard cubic meters per day) to 15 mmscmd. The price that India paid for imported gas was over $10, or higher than $8.4. Has Ambani indirectly received benefits of gas prices? In October 2012, Kejriwal mentioned two

THE AYE-SAYERS AND THE LONE DISSENTER (L-R) Murli Deora, Veerappa Moily and Jaipal Reddy

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CORPORATE / Kejriwal vs Ambani

The government’s counter was that the oil ministers could not be blamed for the decisions to hike gas prices, Ambani was not the only beneficiary of the increases, and Indian prices were lower than the global benchmarks.

issues that hinted at how the government looked the other way when Ambani’s RIL raked in additional profits. For instance, in 2011, the company sold a 30 percent stake in its gas fields to oil conglomerate British Petroleum (BP) for a whopping $7.2 billion. The former Delhi CM felt that the center, which leased the fields to Ambani to explore them for as long as the reserves lasted, should have disallowed the equity sale. He said this was akin to a driver he hired to drive a car, but who “sells off my car after a few days”. The second issue pertained to goldplating of RIL’s investments in the gas fields. Kejriwal said that the government “signed a contract that was dictated by RIL”, and “was meant to favor RIL right from the beginning”. The so-called production sharing contract (PSC) allowed RIL’s profits to go up by 220 percent for every one rupee increase in investments. “Isn’t it strange?” he asked. As a CAG report concluded, the PSC did encourage private firms to goldplate costs or deliberately show higher investments. This was because of the differentiation between cost-petroleum and profit-petroleum. Since the latter’s portion was decided only after the explorer had recovered most of its investments through sale of gas (cost-petroleum), there was an inbuilt incentive to show higher investments and, therefore, leave less gas (profit-petroleum) that could be shared with the government. In 2004, RIL stated that it would invest $2.39 billion to produce 40 mmscmd of gas. By 2006, it estimated the production to double to 80 mmscmd, but the investments jumped to $8.8 billion, or an increase of 270 percent. “To double production, you increase your investments by four times? Having put the initial infrastructure in place, it should have cost lesser…,” said Kejriwal in October 2012. Ambani had fixed answers for both these allegations. RIL’s managers said that the sale of the stake in the gas fields was similar to the sale of property that one purchased on a 99-year lease from the city’s development authority. “If we could sell the leased property, why not the gas fields, as long as the buyer was

aware of the nature of the ownership of the assets,” says one of them. In response to the car-and-driver example, RIL stated it was wrong to compare it with the gas fields. In the former case, the owner purchased the car and hired the driver. In the case of a gas field, the owner provided a design blueprint; it did not know how much gas was there and how much could be produced. It was the lessee, or RIL, which invested billions of dollars to explore and produce the gas, and that too in difficult offshore, deep-sea areas. Since RIL took the operational, technological and financial risks, it had the right to sell a portion of the equity it held in the gas fields to an interested party. It was because of these gambles, which could have gone wrong and led to unproductive expenditure, that RIL had to almost quadruple its investments. Between 2004 and 2006, some of the costs, like the hiring of the rigs, did shoot up by 5-10 times. These too needed to be accounted for in the calculations. This was the reason why RIL dismissed ACB’s FIR as “shocking”, “baseless” and “devoid of any merit or substance”. Others in the Indian business community too criticized Kejriwal. Many of them agreed that the law should take its own course, and there was a need to inculcate transparency in government’s decision-making process. But they added that if every state government followed Kejriwal’s example, every official, including the honest one, would be scared to take a decision. As Deepak Parikh, chairman, HDFC Bank, told a newspaper, “Why would any bureaucrat or minister take a decision? Why should anyone want to go through the legal processes and suspicion because of a decision they have taken? This will slow down decision-making, slow down growth and development.” However, the narrative that Kejriwal has woven about the deep nexus between big businesses (including Ambani), ruling regime (Moily) and the main opposition party (Narendra Modi) might woo the hearts and minds of the voters, especially in urban constituencies. IL

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LEGAL EYE / rights and duties

IF EVERYTHING IS A RIGHT THEN NOTHING IS WRONG
anarchy is mounting in all spheres of indian life because competitive political populism is conjuring up more rights at the expense of duties
SIGNAL TO ANARCHY A massive traffic snarl in front of the New Delhi Railway Station

A

traffic roundabout in Sushant Lok-Phase III of Gurgaon city in Haryana is aptly named Harmony Chowk. Aptly because everyone in this area is in harmony with the citizen’s de facto right to do as one desires. Every person at Harmony Chowk, from the owner of a luxury car to a cyclist, seems hell bent on taking innovative shortcuts, violating every traffic rule in the book. This Harmony Chowk syndrome of saying two

hoots to the duty of complying with traffic rules is the apotheosis of the Indian ‘I’m-allright-Jack’ paradigm: the entire nation, now in the grip of an unprecedented “my rights” revolution fanned by politicians, judiciary, NGOs and the media, cares not a whit about the concept of “my duties”. What applies to road traffic is equally relevant to other spheres. The rights of individuals and the rights of vocal groups
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LEGAL EYE / rights and duties

matter more than the interests of society. It does not matter whether fulfillment of one’s right tramples on the right of the other. Every person, every group, in the country is now obsessed with its selfish perspectives or “rights”, ranging from the aspiration to form a separate state to having a bite of the job reservations cake. In this competitive populism to conjure up more and more “rights” that could be trivial or even unconstitutional, other issues such as the right to food, right to fresh air, tribals’ forest rights, animal rights, includ-

ing no-go forests where tigers roam, right to information and the right to protest begin to sit on the backburner. he citizen’s indifference towards fundamental duties enshrined in the constitution has flourished over the years. It has now become omnipresent because the activist judiciary has not prodded the discordant legislature and the play-safe executive to enact laws or create administrative mechanisms to enforce fundamental duties. None of the three organs of the state have thought it prudent to review and expand fundamental duties to create a more responsible, restrained and sustainable society. The situation today is far worse than what it was in May 1998 when the former chief justice of India (CJI), the late Ranganath Mishra wrote a letter citing Chief Justice MM Punchhi on the urgency to teach fundamental duties in the country. The letter, which the apex court transformed into a petition for developing the balance between duties and the rights, stated: “All of us are experiencing to our horror degrading human behavior in society every day. The deterioration is gradually becoming sharper and unless this fall is immediately arrested and a remedial measure found out and enforced, the situation would not improve. Fundamental duties have remained in the constitution book and have not come out to reach even the class of people who handle the constitution.” The Supreme Court disposed of Justice Mishra’s petition on July 31, 2003 in the hope that the government would act on the recommendations of a committee on fundamental duties under the chairmanship of former CJI, the late Justice JS Verma, that submitted its report in 1999. The apex court cited the Verma Committee’s recommendation that read: “It may be necessary to enact suitable legislation wherever necessary to require obedience of obligations by the citizens. If the existing laws are inadequate to enforce the needed discipline, the legislative vacuum needs to be filled. If legislation and judicial directions are available and still there are

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The forgotten values
The Emergency was justifiably excoriated and then rejected by the people of India as a travesty of democracy. Ironically, some of the most noble principles of exemplary citizenship were incorporated into the constitution by Prime Minister Indira Gandhi as the 10 fundamental duties of the citizen in the constitution. The 11th duty was added in 2002, but is not yet in force. THE 11 FUNDAMENTAL DUTIES ARE: l To abide by the constitution and respect its ideals and institutions, the national flag and the national anthem l To cherish and follow the noble ideals, which inspired our national struggle for freedom l To uphold and protect the sovereignty, unity and integrity of India l To defend the country and render national service when called upon to do so l To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women l To value and preserve the rich heritage of our composite culture l To protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures l To develop the scientific temper, humanism and the spirit of inquiry and reform l To safeguard public property and to abjure violence l To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement l (In case of a parent or guardian) to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years

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violations of fundamental duties by the citizens, this would call for other strategies for making them operational.” The judgment added: “Keeping in view the fact that the Government of India would take notice of the recommendations of the aforesaid commission/committee, we agree with Shri K Parasaran (a senior advocate who served as amicus curiae in this case) that the same may be considered in its right earnestness by the Central Government and we accordingly direct it to do so as also to take appropriate steps for their implementation as expeditiously as possible.” About two years prior to this verdict, the apex court had ruled that “fundamental duties, as defined in Article 51A (of the constitution), are not made enforceable by a writ of court just as the fundamental rights are….” This was part of the apex court’s judgment dated August 24, 2001, in the seat-reservations-centric petition filed by AIIMS Students’ Union. The judgment elaborated: “Fundamental duties, though not enforceable by a writ of the court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues. In case of doubt or choice, people’s wish, as manifested through Article 51A, can serve as a guide not only for resolving the issue but also for constructing or molding the relief to be given by the courts. Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on state action drifting away from constitutional values.” Alas, a steady drift away from duties has gathered pace since then. The elected representatives of parliament seem oblivious of their duties as citizens. This can be gauged from the fact that a paltry five questions on fundamental duties were asked in the Rajya Sabha during the last 15 years! Instead of focusing on duties as Mahatma Gandhi would, perforce, have urged all citizens to heed, politicians have wallowed in competitive populism, promising legitimate and illegitimate rights to voters as a quid pro quo for electing them to power. It is noteworthy that Rahul Gandhi stated during the 83rd AICC Plenary Session on

December 19, 2010: “This sustained (economic) growth has empowered the Congress government to take development to the individual through the concept of rights. Individual rights give people the space to realize their full potential.” Like all politicians, Rahul Gandhi has perhaps never spoken about the vital role of duties in sustaining rights. The concept of rights and duties as being the two sides of the same coin is alien to politicians. It is small wonder then that neither the political class nor the government has embraced the recommendations of Justice Verma Committee and the National Commission to Review the Working of the Constitution (NCRWC) that submitted its report in 2002. It observed: “Every right implies a corresponding duty but every duty does not imply a corresponding right.” It recommended inclusion of two duties in the constitution: to foster a spirit of family values and responsible parenthood in the matter of education, physical and moral well-being of children; and duty of industrial organizations to provide education to children of their employees. The NCRWC stated: “If every citizen performs his duties irrespective of considerations of caste, creed, color and language, most of the malaise of the present day polity could be contained, if not eradicated, and the society as a whole uplifted. Rich or poor, in power or out of power, obedience to citizenship duty, at all costs and risks, is the essence of civilized life.” Will this wisdom ever awake in India? IL

CELEBRATING DUTIES Women in Bikaner district voluntarily clean up their village pond before the rains every year

The rights of individuals and the rights of vocal groups matter more than the interests of society. It does not matter whether fulfillment of one’s right tramples on the right of the other.

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SUICIDE, LIES AND VIDEOTAPES
A chilling first person insider account of how the hollywood blockbuster, american hustle, has carved out a self-serving, fairy tale fantasy from the reality of a horror story By Inderjit Badhwar

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ore than 30 years after I wrote a series of the most explosive stories I have ever done as an investigative reporter, the subject and the characters who populated it have come alive again — on the big screen, in halls all across India and the world. The Hollywood box office runaway blockbuster is titled American Hustle. Directed by David O Russell, it stars, among others, Christian Bale, Amy Adams, Bradley Cooper, and Jennifer Lawrence. American Hustle was all set for about 10 Oscars.

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A LIFE OF LIES (L-R) Christian Bale, playing Irvin Rosenfeld (real-life Mel Weinberg); the man himself

The movie is based on a sting operation conducted in 1979-1980 by the US Federal Bureau of Investigation (FBI) that led to the conviction of a US Senator Pete Williams of New Jersey and six congressmen (members of the house of representatives) on corruption charges. It was dubbed “ABSCAM” for “Arab Scam” because the FBI agents involved created a fake corporation and posed as rich Arab investors, who would pay bribes to elected officials to get investment opportunities in their states. The FBI’s star sting man – the middle man who lured the unsuspecting politicians into the trap before hidden video cameras — was a convicted conman Mel Weinberg (the Irving Rosenfeld character played in the film by Bale). There are troubling ethical issues involved in this film. The FBI agents emerge as heroes. All the politicians as crooks. Weinberg/Rosenfeld as an amiable, jovial trickster. And his wife Rosalyn (Marie Weinberg in real life) as a drunken, brazen hussy. I am a sworn enemy of censorship. And as an author I know that poetic license and cinematic adaptations are legitimate creative activities. But what happens when a film like American Hustle, which, by the admission of its makers, is based on “facts”, distorts facts, glamorizes the actual wrongdoers, including the FBI and Weinberg (Rosenfeld), and shamelessly defames and slan-

ders the character of Marie (Rosalyn), who was one of the most tragic victims of that scam? Lawrence’s performance as Marie/Rosalyn as an over-the-top slut is a selling point for the movie. What if you knew that in real life, Weinberg was on the take with the knowledge and connivance of the FBI, and his wife committed “suicide” after she exposed the sham in public? Notwithstanding the movie’s cinematic virtues, would you support its iconic status? he real story behind Abscam, as I know it and as I told it, is as dramatic as the film. But it is a sordid tale of deception, treachery and criminality with the shoe on the other foot: the bad guys are Rosenfeld (Weinberg) and the FBI agents. The heroine is Rosalyn (Marie), who was one of America’s greatest whistle-blowers and paid for her courage with her life in 1982. It was to me that she came first with the real story. I was then a senior investigative reporter for the legendary Jack Anderson, the journalist associated with ABC TV and Parade Magazine, and who wrote a daily column that ran in 1,000 papers worldwide. I was with Jack for about eight years, replacing Brit Hume who had joined a broadcast company. Initially, the transcripts of the secretly-videoed Abscam tapes showing congressmen accepting bribes were leaked by the FBI to my colleague Gary Cohn, and the Jack Anderson column reproduced them (early 1980s) in what was considered the scoop of the decade. Pre-trial publicity had a lot to do with the speedy convictions. The FBI was riding a wave of glory.

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IN GLORY OF THE OTHER ONE

(L) Amy Adams, playing Sydney Prosser (real-life Evelyn Knight) in the film

But when the judicial indictments started coming down and some of the trials began, I convinced Jack that we do a reverse look at our scoop because I had learned that some of the congressmen and senators may have been preselected for the sting operation because they were actually pro-Teddy Kennedy Democrats who had been opposed to Jimmy Carter. The FBI Director William Webster had approved the sting based on names and political standing rather than on any investigation of ongoing criminality or even a predilection to criminal behavior. I viewed it as entrapment and ran a series of stories, damning Abscam as a violation of America’s system of justice, wrongful entrapment, and produced memos showing that some of the district attorneys and FBI agents didn’t approve of the methods and believed that Senator Williams had been falsely implicated. It was an unpopular position to take because the rest of the American press had already declared the undercover agents and Weinberg as national heroes, who had brought down crooked politicians. My view was that these politicians were not all crooked but were tempted mercilessly, remorselessly and tenaciously until they succumbed to the temptation. It is, after all, not the state’s business to convert otherwise honest people into criminals. Law enforcement means catching and preventing crimes, not creating criminals. This worried Webster so much that he requested a meeting with me and Jack Anderson at the FBI headquarters in Washington to ask for a “truce”. His agents had been tailing us trying to discover the source of

my leaked memos. We knew this. All of us, including my partner Jack Mitchell (former chief investigator, Senate Committee on Aging) caught them snooping brazenly from parked cars outside our Washington office. Webster told me and Jack that he had been informed that we had bugged his office through a rogue FBI agent by the name of Ed Tickle! This was hilarious. The deal he tried to offer was that we would lay off embarrassing the FBI on ABSCAM for, maybe, some special scoops in return. Jack played the good guy, I played the toughie but nothing came of it. (This is well documented by Jack in his great book: Peace, War and Politics, published just before his death in 2005). hen all hell began to break loose. Mel Weinberg’s (Irvin Rosenfeld in the film) wife Marie (Rosalyn in the film), was a frail, 50-year old bleach-dyed blonde diabetic with a strong Brooklyn accent, who lived with her adopted son, JR in Tequesta, Florida. She had been following my reportage and called me out of the blue, told me my hunches were correct, and that she really wanted to give me some inside dope. She said her telephone may be tapped. I flew down, checked in at a motel, then moved to another for the meeting and what she told me was stunning. Abscam, she said, was a scam within a scam. It was bankrolled through unaccounted funds placed in the Chase Manhattan Bank. Also, Weinberg was doing a double scam. He was actually not only pocketing some of the bribe money meant for the targets (and giving kickbacks to his FBI handlers) but also extorting the targets for “incentive gifts” like colour TV sets, microwave ovens, VCRs , in order to expedite the deals. She also said he had perjured himself during the trials and the FBI knew about it. The two FBI collaborators involved were FBI agents John Good and Tony Amoroso (played by Bradley Cooper in the film). I secretly taped her conversation with me in the motel room as well
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“Mel Weinberg used me as a practice ground for all his other scams”
The EXCLUSIVE EARLY 1982 INTERVIEW WITH THE REAL MARIE WEINBERG (ROSALYN, played by Jennifer Lawrence in the film), based on taped conversations, was published shortly before her death and was published in investigative journalist Jack Anderson’s column
t is not revenge why I’m telling you this,” Marie Weinberg told my associate Indy (Inderjit Badhwar). “It’s conscience. I’m not a woman scorned but a woman scammed.” “Mel Weinberg,” (Irv Rosenfeld in the film), she added, “used me as a practice ground for all his other scams.” Marie’s story is truly a pitiful one. Abandoned at birth, her childhood was spent in one foster home

“I

CHEATED IN LIFE, AND DEATH (L-R) Marie Weinberg; Jennifer Lawrence, playing Rosalyn (real-life Marie)

after another. She married Weinberg just as he was embarking on his life of crime. She kept house for him, polished his shoes, manicured his nails and looked after their adopted son, JR, now 16. She learned to suffer in silence and to keep her mouth shut. When Weinberg was nailed for fraud in 1977 and faced three years in jail, Marie handed over her diamond engagement ring and the deed to the house to raise the $10,000 bail. He repaid her slavish devotion by setting up housekeeping with another woman. Inspired by the old Alec Guinness movie, The Captain’s Paradise, Weinberg created duplicate households a few miles apart, with Marie’s unknowing help. The other woman was Evelyn Dawn Knight (the Sydney Prosser character played by Amy Adams). She was arrested with Weinberg in 1977; in a self-serving book, The Sting Man, Weinberg claims that it was to save Evelyn’s hide that he agreed to co-operate with the FBI. Marie read the book and asked her husband about “Lady Diane,” as Weinberg and co-author Bob Greene referred to Evelyn. “Mel told me that Bob had made it up just to add sex to the book so it would sell,” Marie said. But Evelyn was real. She even changed her name to Evelyn Dawn Weinberg in June 1981.

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When Mel wanted to buy Evelyn a new Cadillac, he brought her old car to Marie, saying it belonged to a “Sir Gordon” (a fictitious name he pulled out of the hat) and needed sprucing up. Mel paid Marie $50 to clean and paint the car. He then sold it and bought the Caddie. When the Weinbergs moved to Jupiter, Florida, in July 1979, he set Evelyn up in a condo just like theirs, 16 miles away in Stewart. He told Marie he had bought the second condo for investment and was renting it to a “stupid” union official and his “dumb” wife, who knew nothing about decorating the apartment. On this pretext, Weinberg got Marie to give him samples of her wallpaper and floor coverings, and had her measure the wall unit in the Jupiter condo. He spent a lot of time in Stewart, supposedly helping the union official and his wife furnish their rental unit. Another ruse he used to dupe Marie was to announce that he was taking their son to Jacksonville overnight. Instead, he would stay with Evelyn. He explained Evelyn to JR as an FBI agent with whom he was working on an undercover assignment, and told the boy to keep mum about it lest he upset his mother. But Marie was getting suspicious. She had seen a piece of paper lying around with Evelyn’s name on it. Weinberg reassured her, saying “There is no Evelyn… I love you and only you.” When Weinberg said he was taking JR to Jacksonville last Halloween night, Marie resolved to follow her suspicions. The next day, she found the other condo. Mel’s car and Evelyn’s Cadillac were parked outside. Marie knocked. Evelyn opened the door. “Evelyn?” said Marie. “I’m Mel’s wife, Marie.” “Call me Eve,” said the other woman coolly. “How long has this been going on?” Marie asked. “Fourteen years,” said Evelyn. Weinberg was upstairs and refused to come down. JR had gone out. When Mel finally came home, he shrugged off Marie’s demand for an explanation. “So I got caught,” he said. “I always told you I’m the world’s biggest liar.” Then he nestled into his favourite armchair, ordered some Chinese food and asked Marie to give him a manicure. -- Inderjit Badhwar

DECEPTION POINT An aged Weinberg posing with the movie poster

as while driving around with her in a rented car the next day. To my surprise, within a couple of weeks, snatches of this taped conversation would be played back to me and my wife by anonymous callers to my home in Rockville, Maryland. Maybe that was the FBI’s way of letting me know they knew what I had been up to, and to lay off. (I later shared this information with Senators Daniel Inoue of Hawaii and Orrin Hatch of Utah who were on the Senate Ethics Committee that indicted one of the Abscam targets Senator Pete Williams of New Jersey and forced him to resign.) Why did Marie blow the whistle on her husband? In the film, her character is portrayed as a drunken adulteress, who has been described by those involved with the production as “manipulative”, “really sick” and “crazy”. However, the truth is something far different. By 1981, the Weinbergs were living in central Florida, and Marie discovered that the 57-yearold Weinberg had a long-time mistress, Evelyn Knight, 39 ( Sydney Prosser, played by Amy Adams in the film), who was 11 years her junior. He had set her up in a condo 15 miles away, and the name ‘Weinberg’ had been posted out front. She soon discovered that Knight had also legally changed her last name. Marie, who was raised in a foster home and suffered from diabetes, had been devoted to Weinberg and her adoptive teenage son. I got to know her as a kind, generous and friendly woman. Weinberg immediately began to warn her to remain quiet, because a movie
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deal was planned for John Belushi to portray Weinberg as a hero. He also wanted her to remain silent about the fact that he had pocketed bribe money during Abscam, something that others were alleging, and the FBI then began to harass her as well. She immediately moved toward a divorce, and fought back the only way she could: by going public. She turned to investigative Jack Anderson and me. After a number of explosive articles by Jack and myself, she appeared on ABC’s 20/20 in January of 1982, in an interview arranged by me with Tom Jariell through producer Gordon Freedman. At that point the intimidation intensified. Weinberg had promised that he would spread ugly stories about her, which he immediately did, in order to have their son taken from her. A pastor that she had turned to was worried she might attempt suicide, which she denied. But five days after the broadcast, she apparently took her own life by hanging herself, and left a note behind blaming her husband, saying that she didn’t have the strength to fight him anymore (see box). Shortly before Marie was to appear before the

senate, I received a call from her son, JR, from Florida, informing that Marie was missing and that it was quite unlike her not to return home by 9 pm latest. he following day — it was January end, 1982 — I was in Jack’s office on 14th St NW in Washington DC. JR called me to say Marie had been found dead in a vacant adjoining condominium in Jupiter, Florida. The police report filed almost immediately said it was a suicide. Her hair was in perfect shape and well permed. She was wearing rouge, lipstick and eye shadow and had powdered her face. In the living room was a round table with a pen and a notepad on which she had apparently written a suicide note. I asked a New York-based investigator/lawyer, Michael Dennis to rush to Florida as Marie’s family representative. He met JR and got a copy of the ‘suicide note’. The next day, Mel “buried” Marie in an empty casket while her body was still in the morgue. The pastor did not know this. He probably did this to avoid a formal inquest. The actual burial took place a day later.

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HUSTLE AND BUSTLE
Following our press accounts about the ABSCAM investigation, the US Congress held a series of hearings to examine FBI undercover operations. The House Subcommittee on Civil and Constitutional Rights concluded with a report in April 1984. Among the concerns expressed during the hearings were the undercover agents’ involvement in illegal activity, the possibility of entrapping individuals, the prospect of damaging the reputations of innocent civilians, and the opportunity to undermine legitimate rights to privacy. It held that undercover techniques should be very carefully monitored as they “create serious risks to citizens’ property, privacy, and civil liberties, and may compromise law enforcement itself.”

THE ART OF ENTRAPMENT
In US criminal law, a person is ‘entrapped’ when he is induced or persuaded by law enforcement officers or their agents to commit a crime that he had no previous intent to commit. A defendant who is subject to entrapment may not be convicted as a matter of public policy. However, there is no entrapment where a person is ready and willing to break the law and the government agents merely provide what appears to be a favorable opportunity for the person to commit the crime. In order to be found to be a victim of entrapment, the person must have been willing to commit the crime prior to the alleged entrapment. The mere providing of an opportunity to commit a crime is not entrapment. In order to find entrapment, there must be persuasion to commit a crime by the entrapping party. Entrapment is an affirmative defense, in which the defendant has the burden of proof. It excuses a criminal defendant from liability for crimes proved to have been induced by certain governmental persuasion or deceit. To claim inducement, a defendant must demonstrate that the government conduct created a situation in which an otherwise law-abiding citizen would commit an offense. The defendant must show that he or she was unduly persuaded, threatened, coerced, harassed or offered pleas based on sympathy or friendship by police.
Source: US Legal

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HUNG BY WORDS

MARIE’S SUICIDE NOTE

“My sin was wanting to be loved”
26 Jan 1982
The only one who can forgive me is God. I cannot live with the knowledge of the lies and deceit perpetrated by one person – the lives of the people affected by the deceit. I cannot justify why all of these things were done – I leave that to a higher power. My sin was wanting to love and be loved, nothing more – but the campaign is being made by Mel to discredit me – I haven’t the strength to fight him any more – so by the act it will add credence to anything he says – so be it – Everything that I have attested to has been the truth – the affidavit and conversations with Gordon Friedman – Indy Badhwar – Richard Lee Bast & Michal F. Dennis as God is my witness. Mel has threatened me with taking my son from me – he will declare me an unfit mother – this was his crowning achievement – the one thing I could never bear. I can live with 14 years of deceit from Mel – but not the loss of my son – the only beautiful thing in my life. What I am about to do is cowardly – call it what you will – but may be if I had done something – spoke up earlier it may have changed things – The guilt is too much – forgive me.

But nothing else came of it. The world just went on. Marie was quickly forgotten. Nobody raised the issue or even discussed her sworn affidavit and accusations at the Senate hearing on Senator Pete Williams’ expulsion a month later. Later, Pete Williams went to jail. America buried another scandal. Weinberg continued to attack Marie and at the same time blamed others for her demise, including Jack and myself. Little more than a month after Marie’s death, Weinberg married his mistress Evelyn. The movie did not materialize then, but after several attempts over the years it now finally has, with the Weinberg character once again as the likable conman. But thanks to the internet and social media, several websites now mention the real story, including Slate, Time magazine, The Daily Beast, History vs. Hollywood, New York magazine (through Vulture.com), The American Thinker and NBC news.com. As one blogger noted: “I understand that changes can, will, and in general must be made to turn life into film. But I think we should examine those changes, especially when they stifle the characterization of a woman who has only ever been characterized by her husband. Especially when it’s another way that the living Mel Weinberg gets to keep his voice, while his dead ex-wife loses hers. And especially when

we’ve turned her into fodder for comedy, laughing at her unhappiness, social anxiety, and depression. David O Russell did a disservice to Marie Weinberg and to Jennifer Lawrence….” Post Script: Weinberg, now 90 years old, admits being paid a quarter million dollars for the film, and continues to attack his late wife, telling Newsday she was a “wacky broad”. Shortly after I wrote about Marie’s tragedy, Mel, through a common source, threatened to break both my legs if I ever stepped into Florida. The following year, United Features Syndicate, which syndicated our column Washington Merry-go-Round, nominated me for the Pulitzer for the series of columns and reporting on Abscam. I’m sure the Pulitzer Committee, even though I am an alumnus of Columbia’s Graduate School of Journalism, must have considered that as some kind of a perverted joke, considering that most American editors at the time regarded Weinberg as some kind of national hero for nailing a bunch of crooked politicians. American Hustle promotes this myth-making, which took a heavy toll of human beings and the American system of justice. IL — with Ron Kolb, a Texas-based investigative reporter, in Florida, USA
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GLOBAL TRENDS/ sri lanka / human rights

this month the united nations human rights council will again vote on a us-backed resolution on sri lanka relating to accusations of war crimes during the last stages of the eelam war in 2009. But president rajapaksa’s government believes that there is a continuing western bias against his country trying to recover from the brutal aftermath of the 30-year war

TARGETTING THE ISLAND NATION
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ome five years have passed since the defeat of LTTE’s terror army by Sri Lankan forces and the killing of V Prabhakaran, who was listed not only by the Interpol but also by the US, leading European countries and India among the most wanted international terrorists. But instead of hailing the end of Prabhakaran and his terror group as the first successful victory against terrorism in this century, the west and the UN have concentrated on human rights violations, alleged war crimes and civilian casualties associated with the last and decisive surge of the war. This anti-Sri Lanka campaign has been demonstrated repeatedly in votes against Sri Lanka in the UN Human Rights Commission and in criticism from western nations, including Canada, which boycotted the Commonwealth Heads of Government Meeting (CHOGM) in November 2013. India, under pressure from domestic Tamil groups, voted with the US last March, and Prime Minister
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The indisputable fact remains that unlike Yugoslavia and Cambodia, Sri Lanka has made remarkable progress in restoration efforts in just four years since the end of the conflict.
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Dr Manmohan Singh chose not to attend the CHOGM held in Colombo. Inexplicably, even though nearly 400,000 war refugees have been settled in record time, reconstruction and reconciliation between ethnic groups has made headway, demilitarization is proceeding rapidly, and a free and fair election has been held for the first time in the northern province, which has elected a Tamil Chief Minister CV Vigneswaran, the UN Human Rights Commissioner, Navi Pillay, has fired the latest shots against Sri Lanka and called for an international inquiry into allegations of the war crimes in the island nation. Pillay has astounded analysts both in Sri Lanka and India. She was invited by Sri Lanka in August 2013, where she travelled freely for a week, talking to whoever she wished to see. Among them were the president and defence secretary. She chose to ignore the palpable progress being made in Sri Lanka such as the return of democracy in the north and rehabilitation of former LTTE cadres, and chose to focus on the negative. She has levelled allegations which Sri Lankans label as unfounded: that Sri Lanka is moving towards authoritarianism; journalists are being harassed; disappearances of civilians are not being adequately addressed; and there is an oppressive military presence in the north.

Sri Lankans are used to trenchant criticism. What they resent is the grossly onesided portrayal. For example, while Pillay criticized the army for occupying private land in the north, she did not even touch on the central issue of land: the Herculean efforts made by the government in re-distributing land to those from whom the LTTE had forcibly acquired it and destroyed title deeds. And she totally glossed over a cardinal post-war issue, of which Sri Lanka can be justifiably proud: the re-integration of LTTE’s child soldiers into the educational and social mainstream. oreign Minister GL Peiris has blasted Pillay for her failure to produce empirical evidence to substantiate her allegation. Why, five years after the end of the war, when the Sri Lankans are moving ahead in a peaceful environment after three decades of terrorism, is the UN, backed by western powers, persisting in persecuting the Sri Lankan government? Ordinary Sri Lankans wring their hands and ask: Do they want to damage and set back the peace process now under way following the work of the Lessons Learned and Reconciliation Commission, whose report has been praised by several world leaders? Many observers believe that the UN moves against Sri Lanka are nothing short

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www.tamilnet.com

IGNORING THE OBVIOUS (L-R) UN Human Rights Commissioner Navi Pillai, who has raked up human rights violations issue against Sri Lanka; a demonstration by Sinhalese monks in support of the government; file photograph of LTTE leader Prabhakaran. (Previous page) A child disabled during the Sri Lankan war observes his friends playing cricket in Kilinochchi, North Province, Sri Lanka

of interference in the internal affairs of Sri Lanka, and are backed by western powers who want to jeopardize the country’s independence which is fiercely championed by President Mahinda Rajapaksa, who has openly resisted western pressures on him before, during, and after the war. Many of these western interests are still influenced by the well financed LTTE sleeper cells, which also influence important politicians in western nations and would not like to see a stable Sri Lanka. But the indisputable fact remains that unlike Yugoslavia and Cambodia, where post-conflict reconstruction took years, Sri Lanka has made remarkable progress in restoration efforts in just four years since the end of the conflict. The government has already invested US $3 billion in infrastructural development and in creating new opportunities for the people of the north. Yet, the tone and substance of Pillay’s initial report, issued shortly after her visit, as one prominent Sri Lankan politician observed, showed such a distressing lack of balance “that it appears Ms Pillay had formed her views before reaching the shores of the country.” President Rajapaksa has now openly expressed his concern that such irresponsible and one-sided condemnations of his country are part of an orchestrated

campaign by powerful foreign and local elements “trying to create divisions between the communities and religions to bring anti government groups to power and bring Sri Lanka under their heel. They should realize that this government has the blessings of the masses who love this country... who therefore would never allow them to succeed.” It is true that Pillay for the first time characterized the LTTE as a “ruthless”, “murderous” organization. This begs the question, why Pillay never used these epithets for the LTTE before its downfall and when Prabhakaran was reigning supreme. Why does she maintain a silence on the functioning of the still remaining LTTE fronts, some of whom drum up support and lobby in Geneva? Last August, Pillay devoted an unparalleled seven days to Sri Lanka — a democratic country now devoid of terror. This is more time than she or her predecessors have ever devoted to Iraq, Libya, or Syria. The distressing and glaring common denominator explaining why the UN does not find equal time for visiting conflict areas like Iraq, Afghanistan, Kosovo and Libya is that powerful foreign countries invaded these nations. As excuses — often blatant propaganda — in defense of these incursions mounted, the UN was turned into helpless spectator of the violation of international law.

When Osama bin Laden was killed, there was widespread celebration in the western world. Why wasn’t the elimination of Prabhakaran, one of the bloodiest icons of international terror, greeted with similar approbation?
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GLOBAL TRENDS/ sri lanka / human rights
PIB

A CASE OF COMPULSION President Mahinda Rajapaksa of Sri Lanka with Prime Minister Dr Manmohan Singh. The latter chose not to attend the CHOGM in Sri Lanka under Tamil pressure

During Pillay’s meeting with Defence Secretary Gotabaya Rajapaksa, the outspoken younger brother of the president bluntly quizzed Pillay about human rights violations such as drone attacks by the US and western allies. Pillay was apparently left speechless. So the question remains: Why is Sri Lanka being singled out by UN with such rapid regularity? When Osama bin Laden, along with some civilians, was killed, there was widespread celebration in the western world. Why wasn’t the elimination of Prabhakaran, one of the bloodiest icons of international terror, greeted with similar approbation? One theory currently gaining currency and acceptance among international analysts is that the major powers are once again

During Pillay’s meeting with Defence Secretary Gotabaya, the outspoken younger brother of the president bluntly quizzed Pillay about human rights violations such as drone attacks by the US and western allies. Pillay was apparently left speechless.
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using the UN to gain economic, strategic and political supremacy in smaller, weaker nations by using human rights as an ideological justification. It is small wonder then that Pillay’s proposal that the Sri Lankan Government should enact a “witness protection” legislation is being lambasted in Sri Lanka as an example of how the office of the UN Human Rights Commission is deviously trying to bring a sovereign country’s law and order system under its aegis. However, there is a method to the UN’s double standards. It is now demonstrable that powerful nations such as the five permanent members of the UN Security Council cannot be subjected to the controversial Responsibility to Protect (R2P) doctrine under which, for example, Libya was invaded. R2P was accepted by the UN as a preventive and preemptive course of action against genocide and ethnic cleansing. But its critics argue that it is now being honed as a new tool by UN emissaries, whose veiled threats would compel smaller nations, who wish to preserve their independence and non-alignment, to seek the shelter of the Big Five, all of whom want to expand their spheres of influence. This is the fear that haunts most Sri Lankans. IL

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CONSUMER WATCH

News capsules from the consumer world to keep you well-informed
SPEEDING UP TELECOM REDRESSAL
As a telecom consumer, have you often felt that you are at the mercy of telecom firms to resolve your grievances? You now have a reason to hope for some succor, as the Department of Telecommunications (DoT) has ordered that consumer courts have jurisdiction over disputes with telecom operators. At present, if consumers have any grievances, they have to first register their complaints with the call centre working for the operator concerned. If the issue still remains unresolved, they have to approach the nodal officer and, finally, the Telecom Regulatory Authority of India. “The District Consumer Forums are competent to deal with disputes between individual telecom consumers and telecom service providers,” says an official memorandum of the DoT. It has written to the Department of Consumer Affairs, chief secretaries and administrators of state and union territories to take up the matter with various consumer courts.

Illustrations: Aruna

WHEELS TURN EXCRUCIATINGLY SLOW
The Consumer Protection Act (CPA), 1986, provides for quick disposal of cases within three months. But consumer courts take, on an average, three years to pass a verdict, except in case of products requiring laboratory testing. According to the Consumer Association of India (CAI), cases have been pending for more than a decade! In 2002, CAI had filed a complaint against a supermarket chain for selling a packet of imported dates infested with worms. The second case pertained to a water manufacturing unit claiming to sell herbal water. It has been pending since 2004. Moreover, there seems to be no cap on the number of adjournments sought by litigants as part of their delaying tactics. In a case registered by the CAI and the Department of Civil Supplies against a spurious tea producer in 2006, the State Commission of Tamil Nadu had slapped a fine of `25 lakh. The manufacturer then moved the National Commission. Now, after three years, the case has been reverted to the state commission. In 2000, Savithri Anandraman filed a complaint against Hindustan Lever (now Hindustan Unilever) after she found glass pieces in a jam bottle. The district forum awarded a compensation of `40,000 only in 2013.

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Critical checklist
Don’t file cases for amounts exceeding the purview of the concerned forum Many cases are rejected because consumers are unaware that each forum has an upper limit regarding compensation and property. Consumer forums or district courts handle consumer cases where compensation sought is up to `20 lakh. State commissions handle cases where compensation demand ranges between `20 lakh and `1 crore. Cases where compensation sought is above `1 crore are filed before the NCDRC. Take bills on purchases Many cases become weak because the consumers are unable to produce receipts proving purchase or the amount paid. To save on value added tax and service tax, people don’t take bills, which weakens their case at the time of complaint. Get the warranty card stamped Often, due to hurry or carelessness, consumers don’t get the warranty card stamped or signed. If the object purchased is damaged within the warranty period, it becomes difficult to prove it since there is no stamp. Be on your guard, when switching policies In case of mediclaim or insurance claims cases, when people shift policy from one company to another, companies take advantage of the interim period when one policy ends and another starts, to prove their case. Hence before the first policy gets over, one should ensure the other policy tenure has begun.

FINE LINE BETWEEN CONSUMER, INVESTOR
T he National Consumer Disputes Redressal Commission (NCDRC) has observed that a person who invests in real estate simply to earn income or benefit from capital appreciation is an investor, as distinct from a consumer who buys goods or avails of service for his own use. So, for a consumer complaint to be maintainable, the buyer must fit within the definition of consumer under the CPA. The observations came in the case of Saavi Gupta, who had purchased four properties, including a penthouse apartment from Omxame Azorim Developers. Her father, Dr Sanjeev Gupta, had contributed the money for its purchase and was dealing with the builder on her behalf. Till November 2010, the Guptas had paid several installments, though not by due dates. In December 2010, the builder sent a letter intimating that the price of the penthouse apartment had been revised from `4.04 crore to `4.35 crore. The Guptas protested against the unilateral revision in price. The builder did not pay heed but merely extended the time for making payments and thereafter cancelled the booking. The Guptas then filed a complaint before the NCDRC, claiming they should be re-allotted the apartment at the original rate, or be awarded a compensation of `5 crore, along with 24 percent interest. The commission observed that all the four properties had been booked in the same name. In his affidavit, Dr Gupta had explained that the penthouse apartment was purchased to improve his daughter Saavi’s future and marriage prospects; the second property was purchased for himself, his wife and his parents and the third property was purchased for his minor son. The commission noted that the affidavit was silent about the fourth property. The maintainability of the dispute would hinge on whether the Guptas could be termed “consumers” or not. This required the commission to ascertain the objective behind the purchase of the four properties, viz to earn profits, self-employment, or for own use. Dismissing the complaint, the commission held that the Guptas could not be considered consumers as the properties in question had been purchased as an investment for profit.

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CONSUMER WATCH

NO ‘PRE-EXISTING’ ESCAPE, PLEASE!
Health insurance consumers often find their claim rejected on the grounds of pre-existing disease. But now the onus is on the insurance companies to prove this much-abused ‘pre-existence’ clause. Recently, a consumer forum in Mumbai directed Royal Sundaram Alliance Insurance to pay the husband of a cancer survivor, a Thane resident, an insurance amount of `1.50 lakh, along with a compensation of nearly `1.45 lakh. The complaint was filed before the Additional Mumbai Suburban District Consumer Disputes Forum in October 2007. The complainant had taken the mediclaim policy for his family members and himself in October 2005. On March 20, 2006, his wife noticed a lump in her left breast. After undergoing a biopsy, she was diagnosed with cancer. Over the next few months, she underwent treatment at a city hospital, following which the husband filed a claim. However, the company repudiated it.

THOU SHALT NOT REFUSE ‘VALID’ FLYERS!
The Mumbai Suburban District Consumer Disputes Redressal Forum has directed JetKonnect to pay `40,000 compensation to a Mumbai resident, who was not allowed to board a Bagdogra-Kolkata flight in 2010 due to overbooking. The forum observed that the airline should have accommodated the flyer on the flight, as he had a valid ticket. In the forum’s view, the airline’s behavior amounted to deficiency in service. Abhishek Agarwal was scheduled to travel from Bagdogra to Mumbai via Kolkata on April 4, 2010. He had booked a ticket through an agent for `5,700. On the day of the journey, Agarwal said he arrived at the airport ahead of the schedule, but was told that all the seats were full and that he could not board the flight. Agarwal had to go back and could only take a via-Delhi flight the next day. He said he was forced to spend money to book a hotel in Bagdogra. When Agarwal returned to Mumbai, he wrote a letter to the airline and sought compensation. The airline offered him a domestic flight ticket, which he rejected. Aggrieved, he filed a complaint before the forum. The airline did not respond to the forum’s notices. The forum then decided to pass an ex parte order. Taking into consideration the e-mail correspondence between Agarwal and the airline, the forum said it was evident that the airline had accepted Agarwal’s version. It pointed out that the airline cannot shirk off its responsibilities simply by offering another ticket.

Paying for wrong diagnosis
A consumer disputes redressal forum in New Delhi has fined the well-known Dr Lal Path Labs with a compensation of `3.5 lakh for mistakenly diagnosing an army doctor as HIV positive. In May 2003, the doctor, who was working with the Army Medical Corps as a paediatric specialist in a military hospital at Kirkee, Pune, had accidentally pricked her finger during a routine procedure on a baby born to an HIV positive mother. Alarmed, she approached several laboratories for tests, which confirmed that she was HIV negative. In her complaint she mentioned that she approached Dr Lal Path Labs for a “final conformity test”, which informed her that she was HIV positive. Over the next three months, she had to undergo another spate of tests and treatment at the Army Hospital. It was only after the second round of treatment that the doctor came to know that she had never been HIV positive. The test was false. The forum, in its compensation order, came down hard on the laboratory for her pain, humiliation and temporary hiatus in the doctor’s career due to the misdiagnosis.

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IS THAT LEGAL?

Ignorance of law is no excuse. Here are answers to frequently-asked queries regarding matters that affect us on day-to-day basis
A tour operator promises tourists a wonderful journey from Delhi to Manali. But everything goes wrong on the way. The bus gets stalled leading to a fourhour delay. It rains heavily and unexpectedly, preventing the tourists from sightseeing. Is the tour operator liable? In some western countries, even these unexpected developments, over which the tour operator has no control, do make him liable to pay the damages. The client paid you on the promise of sunny weather, not to be struck in rain. In India, however, litigation over a tour gone

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wrong has been negligible, barring cases of grievous wrongs. For instance, a hotel not specifying the depth of the swimming pool, the lift or elevator being faulty or the safe case in your room being broken. Typical instances where clients have taken tourism and hospitality industry to court are death or injury by negligence, not ‘trivial’ issues like rain. But there is now an increasing instance of consumers in the country going to court over messed up tours. In 2012, the Consumer Disputes Redressal Forum directed SOTC tour operator to pay a compensation of `50,000 for the mental agony a group of tourists suffered during a tour to Israel in 2011.

The tourists’ grievance was that the said operator kept their passports in his custody during the entire duration of tour and did not ever let them venture out on their own even in free time. In another judgement in August 2013, a consumer court asked a US tour operator, Cosmos, to pay `25,000 as damages to an Indian couple for the humiliation they faced during their travel to Germany. It turned out that being the only Indians in the group, they were the only tourists required to pay tips in hotels during the tour, while none of the tourists from other nationalities were. This was how the operator had designed the package. The court pulled up the tour operator for this intentional racial discrimination. A boss praises a woman colleague for her smart-looking western dressing. “Which perfume have you used?” he would often ask, making the woman uncomfortable. Does that constitute sexual harassment at workplace? Sexual harassment is not confined to rape, touching or lewd remarks. Beware that this is becoming an ever
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Illustrations: Aruna

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widening area and boundaries between a purposeful comment and a seemingly innocent remark are blurring, leading to a spurt in litigation. In the US, according to Equal Employment Opportunity Commission, “Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision.” In India, as per the Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, sexual harassment includes any unwelcome act or behavior, like physical contact and advances; making sexually coloured remarks; showing pornography and unwelcome physical, verbal

or non-verbal conduct of sexual nature. It also includes implied or explicit promise of preferential treatment to a woman employee or creating an intimidating or offensive or hostile workplace for her (also read the Lead on page 18). A UN manual for its employees includes within purview of sexual harassment: sexual comments about a person’s clothing, anatomy, or looks; leaning over, cornering, or pinching; referring to an adult as a girl, hunk, doll, babe, or honey; whistling at someone; cat calls; turning work discussions to sexual topics; asking about sexual fantasies, preferences, or history, personal questions about social or sexual life; kissing sounds, howling, and smacking lips; telling lies or spreading rumors about a person's personal sex life; giving personal gifts; hanging around a person; standing close or brushing up against a person; looking up and down (elevator eyes); and staring at someone. If a female colleague is uncomfortable

with the repeated remarks of her boss that deal with her looks, he should better stop it if he does not want to land into a legal tangle. What is a parole and on what grounds does one get it? Parole is either an early release of a prisoner on account of his good behavior, or release for a specified period of time, provided he agrees to abide by the conditions laid down by law. It is more often than not given for medical reasons, especially when the prisoner needs treatment which he cannot get in the jail. Across the world, it is granted once the prisoner has served certain tenure of the jail term. In the case of actor Sanjay Dutt, who has got two paroles within a year of his being imprisoned, the first parole happened on account of an impending shooting schedule; the second one was because Manyata, his wife, had to be hospitalised.

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RNI No. UPENG/2007/25763