India Legal May 15, 2015

NDIA
EGAL
I L
TAJ: Legally FARMERS DEATH:
strangled 54 Judicial fallout 44
WOOING THE BABU: Postretirement revolving door
40
www.indialegalonline.com
May 15, 2015
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LETTER FROM THE EDITOR
INDERJIT BADHWAR
ANOTHER DOSE
OF DISGUSTING
DISINFOMATION
xus Investments Chairman Surjit Bhalla
who is also a columnistis a rare breed of
a no-nonsense, tell-it-like-it-is and the
devil-take-the-hindmost writer who comments mostly on the lies and statistics that
politicians and their economic spin doctors weave in
order to score a goal against an ideological opponent.
Bhalla strips the concoctions bare until they either
implode into their own hollow shells, or reveal evidence-based truth which lies at the core of the selfserving prevarications.
We come, now, to his latest observations on the
tragic death of farmer Gajendra Singh at the AAP
pro-farmer rally in Delhi, organized by Chief
Minister Arvind Kerjriwal and his party colleagues
to oppose the Narendra Modi governments land
acquisition bill.
For some odd reason, despite its several merits,
the opposition, led by the media-created resurgent
Congress leader Rahul Gandhi has labeled the bill
pro-rich and therefore, anti-farmer in order to
reposition the new BJP government as a right-wing,
neo-capitalist, pro-industrialist behemoth. What
being pro-rich has to do with being anti-farmer
escapes me.
Why? Simply because there are plenty of rich
farmers across India. Also being pro-industrialists
does not mean being anti-poor because right since
the days of Nehrus socialist dreams, industrialization and urbanization have been considered important tools of social and economic engineering
designed to help the nation climb out of poverty. And
industrialists, not the government, run the most effi-
Gajendras death has become the

proverbial football with which
everybody is trying to score goals
against everybody else.
4
May 15, 2015
cient and productive industries and generate

employment. You dont have to be an economic honors student to know this. You just have to look
around and observe.
So whats this all got to do with Surjit Bhalla? It
has everything to do with a recent column he wrote,
where he argues that our nation has become so perverse, so inured to twisting the truth and ignoring
the facts to suit political, legal, bureaucratic or
media-circus ends that Gajendras death has become
the proverbial football with which everybody is trying to score goals against everybody else. In the
process, a human beings death and the dimensions
of his personal tragedy have been diminished.
ays Bhalla: I have been an active participant

in the media (both print and TV) for the last
30 years. But never before have I been as
embarrassed to be a part of the media as I was on
Wednesday, April 24, the day of the suicide of a
farmer at a political rally organized by the AAP.
For me, a suicide is one of the most difficult
events to comprehend. Suicides are complex; there
are often multiple factors involved. They can rarely, if
ever, be attributed to one thing. If this is close to
accepted wisdom, then what public policy implications can we draw from it? None. It is insensitive and
logically, ethically and morally wrong (just plain
wrong) for politicians, journalists and even the aam
aurat to derive any policy conclusions from such a
tragedy. An accident can yield insights into public
policya suicide, never.
I will quote liberally from Bhallas column
because he has taken my very thoughts and
expressed them better than I can attempt to do. He is
right in saying that the Congress and the AAP were
the worst offenders, arguing for a direct linkage of
the suicide to poor farmer distress and the BJPs
attempt to introduce the land acquisition bill. And
the media, especially TV, gleefully joined in all of this.
Is there no shame left?

My experience as a journalist is at least as old as
that of Bhalla. And my horror at the media tamasha
that ensued with the talking heads and the little people who speak from boxes to stage-strutting anchors
during prime time TV shows was no less jaw-dropping than his. It was like a Roman blood sport.
Anchors were screaming for gore, milking the scenario for every sanguinary drop of sensation that
they could squeeze out of it.
Some demanded Kejriwals resignation. Others
played up quotes that he should have climbed up the
tree to save the man. These were the same editors
and anchorpersons whose news organizations were
covering the event and whose cameras were focusing
both on the stage and the hapless man on the tree.
The message that emanated from the medium
was that the issue of land acquisition was so serious
and so unpopular with poor, neglected farmers that
one of them had to commit suicide in public to prove
this point. In the process, the finer points of the
debate and the facts were not only lost but an ugly
spat of legal wrangling developed between the Delhi
police and the Delhi government which further
obfuscates the truth about what really happened.
Farmer distress and farmer suicides are, unfortunately, a centuries-old phenomenon across India.
Indebted farmers often take their lives. But what
about Gajendras case? By any stretch of imagination, as facts now show, he was not a poor farmer. His
family owns 40 bighas of land in Dastur. Bhalla cites
NSS landholding data for 2011-12, which places
Gajendra and his family among the top five per cent
of all landowners in Rajasthan and the top one per
cent of all landowners in India. He writes: A relatively rich farmer committing suicidewhat has that
got to do with the land acquisition bill? Indeed, even
a poor farmer committing suicidewhat has that got
to do with the land acquisition bill, or for that matter,
with the setting of the minimum support price?
n 2013, there were 1.3 lakh suicides, out of

which only one-third were female. So should
we pass some legislation to protect the males
from suicide? Should legislation be brought in to
alleviate male distress? Should males get an even
higher salary so that they commit less suicide? Going
by their learned comments on farmer suicide, if the
Congress had won the previous election, they would
have introduced bills to reduce male distress and, to
satisfy all voters, a right to happiness bill, fumes
Bhalla. The larger ideological issue asidethe fact
We are getting a dose of drama,

opportunism, disinformation and
hysteria from the media, politicians,
bureaucrats and police.
that no sensible government can overlook farmers
who make up about 70 percent of our population can
only be ignored by a ruling party at its own political
perilan ugly turn of turf politics is preventing the
truth from coming out.
The Indian Express reported that the Delhi
policecontrolled by the central government
refused to share details and evidence with the district
magistrate (DM) in connection with the alleged suicide. The police are using silly legal subterfuges to
deny the DM information, which he, as an administrator, must have in order to conduct a magisterial
inquiry. Police spokesperson Rajan Bhagat told the
press that the police has powers to investigate the
issue under the CrPC Act as well as the Delhi Police
Act. If anyone has any doubt, we will take legal opinion, he said.
So now, the death of Gajendra has also become a
local political Delhi Swaraj issueKejriwals local
government versus the BJP government-controlled
police. The DM may be right in demanding full disclosure from the police. But the police argues that of
the 7,000 unnatural deaths in Delhi each year
including suicidesthe police conducts the inquests
and magistrates rarely interfere or ask for information before completion of the investigation. Then
why do they want a magisterial inquiry here when
police have registered an FIR and are carrying out a
thorough investigation? sources asked The Indian
Express. The police argues that magisterial inquests
are conducted by magistrates in dowry deaths, but if
the police files an FIR, then the inquest becomes part
of police investigation, which has happened in this
case, as in the Sunanda Pushkar case.
Under the CrPc and Delhi Police Act, the police
commissioners power is at par with the DM, argues
the police and stands ready to reply in court should a
legal complaint be lodged against it for failing to
share information.
Who cares? What the public wants is the truth no
matter where it comes from. What we are getting
instead is a steady dose of drama, opportunism, disinformation and hysteria from the media, the politicians, bureaucrats and police.
editor@indialegalonline.com
INDIA LEGAL May 15, 2015
MAY 15, 2015
VOLUME. VIII
ISSUE. 17
Editor
Inderjit Badhwar
Managing Editor
Ramesh Menon
Deputy Managing Editor
Shobha John
Senior Editor
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Contributing Editor
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Deputy Editors
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Assistant Editor
Somi Das
Art Director
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Graphic Designer
Lalit Khitoliya
Photographer
Anil Shakya
News Coordinator/Photo Researcher
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Production
Pawan Kumar Verma
LEAD
Intelligence breakdown
NSAs tall claims of
bringing to book David
Headley are far from true.
SEBESTIAN ROTELLA
reports that the agency
fumbled on crucial leads
in the Mumbai terror
attack
22
CFO
Anand Raj Singh
VP (HR & General Administration)
Lokesh C Sharma
Circulation Manager
RS Tiwari
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May 15, 2015
SUPREME COURT
Turning a new page

The Judicial Appointments Commission Act will herald a new beginning
in executive-judiciary relations, making the chief justice of Indias role in
the selection process merely symbolic. A report by VINAY RAI
When SC plays savior

The apex court lifts a 25-year ban on Jesus Christ Superstar, a powerful
musical drama, in Kottayam. JACOB GEORGE looks at the creative
controversy
INVESTIGATION
Realty at his feet

A CAG report shows the Haryana government flouting all
norms to satiate Robert Vadras appetite for land.
VISHWAS KUMAR investigates
10
14
28
ACTS & BILLS
Its stiffling
56
The corporate world demands changes in

the Companies Act of 2013 so that
cumbersome procedures are done away
with. RAMESH MENON reports
DEFENCE
The fine print

BIKRAM VOHRA analyzes the Rafale deal,
and the comparative efficiency of the
French fighter aircraft vis--vis competitors
BUREAUCRACY
Second inning
INDIA LEGAL digs out more cases of
bureaucrats taking up lucrative
assignments after retirement.
34
A childhood
lesson
40
46
He surprised many as the chief ministerial choice

for Maharashtra. But NEETA KOLHATKAR senses a
general disappointment with his working style
STATES
Next turf, Patna

With a mega alliance
of the Janata Parivar
formed in Bihar, battle
lines are drawn for the
assembly polls later
this year.
MANTOSH SHARMA
delineates the political
equations
50
Why cant Indian Hotels,

which built and ran the
Taj Mansingh Hotel, get
its contract renewed?
By Puran Chand Tamta
.......................................54
A Kerala nun is paid `12
lakh to remain mum
about her sexual abuse.
By TK Devasia ............70
Under the
scanner
64
How a transgender is
bravely leading life in a
country of biases
By Khalid Shah............76
Following the recent Germanwings air

crash, theres an increasing demand for
psychological testing of pilots.
SHOBHA JOHN looks at the Indian scenario
REGULARS
CM on a string?
The death of a farmer at

an AAP rally opens up
many legal questions
By Shailendra Singh...44
60
By giving a nod to the Juvenile Justice

Amendment Bill, the cabinet hopes they will
be treated at par with adults, writes
RAJENDRAN NAIR KARAKULAM
AVIATION
PROFILE
ALSO
Edit........................................................................................4
Quote-Unquote.........................................................................8
Ringside.................................................................................... 9
Supreme Court..........................................................................17
Courts....................................................................................... 20
National Briefs...........................................................................33
More News................................................................................39
International Briefs.....................................................................75
Wordly-wise..........................................................................81
People....................................................................................... 82
Cover Design: ANTHONY LAWRENCE
QUOTE-UNQUOTE
Dont work like a

robotit impacts
governance. Take
time for yourself
and your family.
"I am guilty. Blame me. I feel

that the rally should have been
called off.
Delhi Chief Minister Arvind
Kejriwal apologising for going
ahead with a rally in the capital, even
after a farmers death at the venue.
The Indian Express
PM Modi while
addressing bureaucrats
on Civil Services Day
Modi took huge amounts

of loan from industrialists
for elections. How will he
repay the debt? By giving
them your land
The population of Muslims and

Christians is growing day by
day. To control this... Muslims
and Christians will have to be
forced to undergo sterilisation.
Rahul Gandhi while addressing

a farmers rally in Delhi
Sadhvi Deva Thakur, vice-president of

All India Hindu Mahasabha.
The Indian Express
I dont want to say anything on

this. Lets not speculate. Dont
jump the gun.
Sourav Ganguly on reports that he
was likely to take over as coach of the
Indian cricket team. The Indian Express
Bhushans have not set perfect

examples. They made an industry out of
PILs and built an empire out
of it.
Muslims will
have no future
till they are used
to play vote
bank politics.
Shiv Sena leader
Sanjay Raut
arguing that
Muslims should be
stripped of their
voting rights.
Saamna
We have always known that

we were being watched. But
we had no idea that it was to
this degree... it reveals
Nehrus deep-seated fear and
anxiety about the Bose clan.
Chandra Bose, grandson of Netajis
brother Sarat Chandra Bose, on the
alleged surveillance by Jawaharlal
Nehru on the kin of Subhas Chandra
Bose. The Times of India
Ashish Khetan, AAP leader, on

Prashant and Shanti Bhushan, in
Hindustan Times
hes laid out an ambitious

vision to reduce extreme poverty,
improve education, empower
womenand unleash Indias true
economic potential.
Barack Obama in an adulation letter in
Time magazine on Narendra Modi
May 15, 2015
I want to serve you

by remaining a
baba and a fakir.
Yoga guru Ramdev
denying a cabinet berth
offered by the Haryana
government, at an event
Aruna
VERDICT
It is better to risk saving a guilty man than to condemn
an innocent one.
Voltaire
SUPREME COURT/ NJAC Act
NEW
WINE
IN NEW
BOTTLE
With the collegium
system coming to an
end, the National
Judicial Appointments
Commission Act has
taken over. This will
herald new ties between
the executive and the
judiciary, where the
position of the
Chief Justice of India will
be merely symbolic
By Vinay Rai
10
May 15, 2015
UNI
HE centers notification of the National Judicial Appointments

Commission (NJAC) Act, 2014, and the Constitution (99th)
Amendment Act, 2014, on April 13, are defining moments in the
history of executive-judiciary relationship in India. In one
stroke, the notification puts an end to the self-selection of judges
in higher courts. Although both Acts were to come into force on
such date as the center would notify them in the official gazette,
its choice of April 13 was a masterstroke.
The Supreme Courts (SC) five-judge constitution bench, headed by Justice Anil
R Dave, was scheduled to begin hearing of 10 petitions challenging the constitutionality of these two Acts on April 15. Their passage as bills in the two houses of parliament and ratification by the required number of state legislatures, before getting the
presidents assent, was a smooth affair.
CLEAR CONFLICT
Justice Dave is an ex-officio member of the NJAC by virtue of being the second senior-most judge of the SC after Chief Justice HL Dattu. Therefore, his membership of
the constitution bench was bound to invite a fresh challengethat he suffered from
a clear conflict of interest and as a consequence, disqualification of his membership
of either the NJAC or the Constitution bench. This was the point made succinctly
and forcefully by the doyen of constitutional law, Fali S Nariman, who represents the
lead petitioner, Supreme Court Advocates-on-Record Association, before the bench.
Although Justice J Chelameswar, another judge on the bench, suggested that
conflict of interest could not arise because Justice Daves interestwhether in the
NJAC or on the benchwould be to ensure the appointment of competent judges to
the higher judiciary, Justice Dave understood the justification for recusal from the
bench, and withdrew. This led to the constitution of another bench headed by Justice
JS Khehar (fourth in order of seniority). And as the other four members remain the
same, hearing of the case began from April 21 when there was a fresh challenge from
Nariman to Justice Khehars membership of the bench on the ground of conflict of
DEBATE OVER
SELECTION
(Facing page) Union
Ministers Ravi Shankar
Prasad and Arun Jaitley at
a discussion on the
collegium system
in New Delhi
(L-R) Chief Justice of India
HL Dattu; Justice Anil R
Dave
JS Studio
interest. The bench dismissed the plea for

recusal of Justice Khehar.
Even as the Justice Khehar-led bench
showed its determination to expeditiously hear
the case from April 27, two issues loomed large
before it. One was whether the center would
agree to await the benchs ruling before letting
NJAC go ahead with fresh appointments and
transfers, as in case the NJAC was declared
unconstitutional, it would become untenable.
The government, fortunately, agreed to defer
fresh appointments and transfers by NJAC till
the verdict was delivered in the case.
The second was what would happen to the
tenure of the additional judges of the high
court, which might end during the course of
the hearing of the case, and who cannot continue without being confirmed either by the collegium or the NJAC. The bench suggested that
in such cases, the tenure of such additional
judges of high courts, who were on probation
for two years, could continue for three more
months, and asked the government to come
out with details by May 11.
But there was a third issue, which it
appeared, could not be resolved: what about
the likely embarrassment to the two eminent
persons, likely to be appointed to the NJAC,
but who might lose their positions if the court
were to declare it unconstitutional? If the gov-
ernment deferred the appointment of these

eminent persons to the panel, it cannot start
functioning, and with the court's verdict hanging like a Damocles sword, would any expert
agree to join the NJAC?
COLLEGIUM SYSTEM
The collegium to choose SC judges comprised
of the CJI as chairman and four senior-most
judges of the court. The collegium to choose
high court judges, on the other hand, comprised of the CJI and two senior-most judges of
the Supreme Court. This collegium was expected to consider the opinion of the concerned
chief justice of the high court, the views of the
other high court judges who might have been
consulted, and the views of SC judges who were
conversant with the affairs of that high court.
Although the collegium accorded primacy to
the CJI, he did not have a veto power over
other members. Thus, the executive was bound
by the recommendations of the collegium, only
if they were backed by consensus within the
collegium itself.
In practice, however, the differences within
the collegium were never publicized. The
opaque sorting out of differences within it gave
rise to suspicions that members of the
collegium often adopted the give and take
approach, to ensure the elevation of their
While the
collegium
system
facilitated the
role of plurality
of functionaries
in the
appointment
process, it
suffered from
the vice of
opaqueness,
and thus invited
criticism of
following a
clandestine
process.
11
SUPREME COURT/ NJAC Act
BATTING FOR
FAIR PLAY
(Right) Fali S Nariman
raised questions in SC
over conflict of interest
of judges hearing
petitions against NJAC
The question
asked in the
legal circles is
whether the
eminent people
chosen as
members of the
NJAC will be
independent
enough to
deny the
political class
any advantage
in the choice of
judges. This
concern is the
thrust of many
petitions
against NJAC.
12
May 15, 2015
candidates to the courts, even if they were not

in complete agreement with the choice of
their colleagues.
All this is set to change under the NJAC,
which is a six-member body. Apart from the
CJI and two senior-most judges of the
Supreme Court, NJAC will include the Union
law minister and two eminent persons, who
will be selected by a panel of the CJI, the Prime
Minister, and the leader of the opposition, or
the leader of the single largest party in the Lok
Sabha. One of the eminent persons will be
from the SCs and STs, OBC, minorities
or women.
For appointment of judges to the high
courts, the NJAC shall consider the views of
the chief justices of the high courts, who would
in turn, seek the views of two senior-most
judges of the concerned high court, apart from
any other judges and members of the bar. The
NJAC also has to seek the views of the governor
and CMs of the respective states before making
recommendations for appointment of high
court judges. Significantly, if two members of
the NJAC oppose a proposed appointee, the
appointment cannot be made. This has given
rise to concerns that the law minister and an
eminent person, chosen by a selection panel in
which the political class is preponderant, can
stop an appointment, even if endorsed by the
members of the judiciary within the NJAC.
HOW INDEPENDENT?
The question asked in the legal circles is
whether the eminent persons chosen as members of the NJAC will be truly independent to
deny the political class any advantage in the
choice of judges. This concern is the thrust of
many of the petitions before the SC.
The court can declare the two Acts unconstitutional, if it holds that they violate the basic
structure of the Indian constitution because of
this compromise.
The hearing of challenges to the NJAC by
the SC is the Fourth Judges Case. The First
Judges Case (SP Gupta vs President of India,
(1981) Supp. 1 SCC 87) arose following the
fears of a committed judiciary in the Indira
Gandhi years. In this case, the seven-judges
bench of the court upheld the executives power
to appoint judges, but added that consultation
with the CJI was mandatory to certify the
antecedents of the proposed appointe to the

SC, and in case of high court judges, also with
the chief justice of the respective high court, to
certify his or her competence and character.
However, the majority judges in this case
gave the executive the final say in making
appointments to the higher judiciary. This
upset the earlier balance of power between the
executive and the judiciary. The court came
under criticism for compromising its own
independence.
Articles 124 (in the case of appointments to
the SC), Article 217 (in the case of appointments to high courts) and Article 222 (in the
case of transfer of a judge from one high court
to another) of the constitution require the president to consult the CJI and other judges
before making the appointments. The expression consultation appears to have been deliberately used by the constitution-makers to
ensure that neither executive nor judiciary
wields absolute power.
FULL OF AMBIGUITIES
The SC, following petitions seeking to fill
vacancies in the higher judiciary, decided to
reconsider its judgment in the First Judges
Case by constituting a nine-judge bench in
1993. The majority in this Second Judges Case,
fered from the vice of opaqueness, and thus

invited criticism of following a clandestine
processthe very criticism leveled against
the executive when it had primacy in the
appointments.
The collegium system could have weathered the storm over its functioning if only the
office of the CJI had released some criteria for
appointments, and laid down some procedures
and mechanisms for investigating allegations
of malpractices in appointments. The SC, for
instance, refused to release the minutes of the
collegium meeting which recommended the
elevation of Justice PD Dinakaran, then chief
justice of the Karnataka High Court, to the SC.
Following allegations of corruption, his elevation was put on hold, but he was transferred as
the Chief Justice of the Sikkim High Court. He
subsequently resigned, frustrating the proceedings for his removal in parliament.
JS Studio
overruled the earlier decision in the First

Judges Case, and transferred primacy from
the executive to the judiciary. Thus, the CJI
was to decide after consulting two senior-most
judges of the SC while recommending
appointees to the SC and two senior-most
judges of the high court while deciding
appointment of judges to the high court.
If the CJIs decision, formed in this manner,
conflicted with that of the executive, then the
formers view would prevail. On transfer of
high court judges, the CJIs view would again
prevail, but he was to consult other judges
whose opinion may be relevant.
The word consultation was interpreted to
mean concurrence of the CJI and the collegium. The collegium system was thus born in
1994 with all its ambiguities and aberrations,
which led to its eventful demise on April 13.
The Third Judges Case arose out of a presidential reference under Article 143 of the constitution in 1997. A nine-judge bench reiterated the previous decision in the Second Judges
Case, but enlarged the size of the collegium, by
requiring the CJI to consult four senior-most
judges of SC.
While the collegium system, to some
extent, facilitated the role of plurality of functionaries in the appointment process, it suf-
THATS UNFAIR
The SC made the process of functioning of the
collegium out of bounds to RTI applicants. It
also stayed the Central Information
Commissions directive to it to disclose information about the collegium, and referred it to
a constitution bench, where it has been pending since 2009.
The NJAC aims to broadbase the process of
selection of judges by including in it members
of the judiciary, the executive, eminent persons, and make it transparent. The inclusion of
eminent persons was not envisaged by the constitution-makers for appointment of judges to
the higher judiciary.
Therefore, if these two eminent persons
exercise their veto over a proposed appointee,
who otherwise, has the backing of other four
members of NJAC, it may go against the letter
and spirit of the original constitutional provisions. How the SCs constitution bench considers this change in the consultation process, will
be watched with interest.
The NJAC Act does not say anything on
how it proposes to ensure merit, integrity, ability of the appointees and transparency in the
selection process, leaving everything to rules
and regulations made by NJAC.
The answer to much of the criticism leveled
against the collegium and the NJAC may well
lie in these rules and regulations. IL
SUSTAINING GROUND
(Left) Petitions against
the removal of Justice
JS Khehar from the
bench were dismissed
STOP PRESS
THE Chief Justice of
India, HL Dattu, has
declined to be a part of
the National Judicial
Appointments
Commission (NJAC)
until the Supreme Court
arrives at a decision on
the constitutional
validity of the panel.
Dattu refused to
participate in a meeting
with the PM and the
leader of the opposition
for selecting two
eminent persons as
NJAC members.
Observers feel that his
action may lead to a
constitutional crisis and
trigger a face-off
between the judiciary
and the executive.
13
SUPREME COURT/ Lifting Ban
Sound of Music
The apex court
delivered a landmark
verdict by lifting the
25-year-old ban on the
famous musical drama,
Jesus Christ Superstar,
imposed only in
Kottayam
By Jacob George
HE lifting of the ban on

Jesus Christ Superstar,
a musical drama, by the
Supreme Court is a
landmark verdict. The
ban was imposed in
1990
by
Alphons
Kannamthanam, the then district collector
of Kottayam in Kerala.
On October 15, 1990, students of the
liberal and modern Corpus Christy School,
now called Pallikkoodam, in Kottayam,
were set to enact the drama after school
hours. Thats when a special messenger
from the office of Kannamthanam handed
over a magisterial order to Mary Roy, the
founder and then principal of the school.
She stood speechless even as anxious students dressed as Jesus, Judas, Peter and
Mary Magdalene swarmed around her.
They soon realized that they could not
enact Jesus Christ Superstar for which
they had been rehearsing for more than a
month. Mary Roy planned to stage the
14
May 15, 2015
drama on the annual day of the school before

a special audience of parents and guests.
And the ban has been in force for the last
25 years, until the Supreme Court on April 7
allowed the plea of Father Abraham Vellathadathil, a priest of the Church of South
India to lift it. Students who lost the golden
opportunity to enact this famous dance
drama are in their 40s now, while Mary Roy,
who, incidentally, is the mother of famous
writer Arundhati Roy, is a frail old lady who
lives in a house on the school campus.
UNFAIR BAN
The Supreme Court bench, headed by Justice
Ranjan Gogoi, quashed the 1990 notification
banning the drama after it was informed that
it had been staged several times all over the
world and even in the Vatican, that it was
available online and that it had been banned
only in Kottayam. Though the musical drama
was banned in 1990, Vellathadathil approached the High Court only in 2002. The
court dismissed the petition and the priest
appealed to Supreme Court.
But why was the famous dance drama
banned? There were protests from some
Christian groups, but they were not that
powerful to force authorities to impose a ban.
Neither had churches in Kerala taken a stringent stand against the drama. Sadly, the then
LDF government, led by CPM leader EK
Nayanar, didnt attempt to reverse the ban.
Mary Roy had then said that Kan-
Freedom of
speech and
expression has
undergone
much change.
I wrote the
said order in
detail in the
particular
context
prevailing at
that time.
namthanam had a personal score to settle
with her. She still believes this. My civil case
with my brother was going on then. Many
people were against me. There might have
been some external influence behind the
ban, says Mary Roy. But Kannamthanam,
now a member of the BJP national executive
committee, says: It is not fair to attribute
motives to a magisterial order.
CHANGE OF HEART
But the years have changed Kannamthanam
and he now has a different perspective on
this issue. Though he doesnt admit that any
extraneous force had influenced
him, he says that the last 25 years
have changed him. Freedom of
speech and expression has undergone much change. I wrote the said
order in detail in the particular context prevailing at that time, says
Kannamthanam.
He is unhappy that he was not
heard before the apex court pronounced its verdict. Neither was he
served with a notice, nor did he
know that the case was going on in
the court. His response to the
Supreme Court verdict? I can very
well see it in the light of new perceptions of freedom of speech and
expression, says Kannamthanam.
Alphons
Kannamthanam,
the then Kottayam
district collector, who
had passed the order
banning Jesus Christ
Superstar in 1990
TRAILBLAZING
CHANGE
(Left) Mary Roy,
principal of Corpus
Christy school, also
fought for Syrian
Christian womens
rights
(Facing page) Jesus
Christ Superstar is a
famous musical drama
performed globally
15
SUPREME COURT/ Lifting Ban
25 YEARS LATER
(Top and above)
Corpus Christy
School, whose
students were to
stage Jesus Christ
Superstar on October
15, 1990
But Mary Roy has valid reasons to believe

that some external forces were active against
her at that time. Her name is well-known in
legal circles as she had won a landmark judgment from the Supreme Court in 1986 which
entitled Syrian Christian women an equal
share in their father's property. As per the
Travancore Succession Act 1916 and Cochin
Succession Act 1921, daughters in Syrian
Christian families were entitled to only onequarter of the sons share or `5,000,
whichever was less.
MOTIVATED BAN
Though Mary won the case, it caused her
many hardships. The Church feared the
court order would divide family properties,
which in turn, would weaken the Syrian
Christian community and destroy its financial might. Mary Roy believes that powerful
entities couldnt digest her legal win and
were behind the ban order of Jesus Christ
Superstar. The drama was slated to begin at
5.30 pm that day, but the ban order came at
16
May 15, 2015
5.05 pm. The children started

crying, recollects Mary Roy.
Incidentally, Jesus Christ
Superstar is a timeless work by
Andrew Lloyd Webber and
Tim Rice and was first staged
in October 1971 in New York.
It is about the extraordinary
life of Jesus and the dramatic
events that happened during
his last days. But what might
have irked some in the top
hierarchy of a prominent
church in Kottayam might be
that the story was narrated from the perspective of Judas Iscariot, the man who later
betrayed Jesus. Though the central story is of
Christianity, it also narrates the politics of the
time and the psychology of the characters.
Traditionally, Christians look at Judas as a
representative of evil, but here, his character
attracts sympathy. He has great respect for
Jesus, but he fears that he is going beyond his
mission, which will attract the wrath of Roman soldiers. The drama also narrates the
relationships between Jesus, Judas and Mary
Magdalene. Judas has concerns that Jesus, a
religious man, spends too much time with
Mary Magdalene who has a notorious past.
Jesus advises Judas that unless he himself is
without sins, he must not criticize others.
During the Last Supper, Jesus predicts that
Peter would deny him and that another would
betray him. The drama doesnt promote the
Christian faith nor does it deny it.
The Supreme Court verdict has shown
that bureaucracy cannot crucify the voice of
dissent arbitrarily. IL
SUPREME COURT
Jayalalithaas bail extended

ORMER Tamil Nadu chief minister
J Jayalalithaa will continue to be
on bail in the disproportionate
assets case as it was extended by the
Supreme Court. The court set her free
till her appeals against the jail term in
the Karnataka High Court were heard
and the judgment given. The apex
court also set May 12 as the deadline
for the high court to give its verdict.
However, the high court verdict
hinges on the apex courts decision
whether Bhavani Singh can be allowed
to continue as the special public prosecutor (SSP) in the case or not. Singh
was appointed to conduct the trial. The
Illustrations: UdayShankar
bone of contention is whether Singh

can also argue in the appeal.
A two-judge bench of the apex
court, while taking up a petition filed
by DMK leader K Anbazhagan, who
wanted Singh removed as an SSP
from the hearing, failed to arrive at a
consensus, and the matter was left to
a larger bench to reach a final conclusion and give the verdict.
The Karnataka High Court can
meet the deadline only if the apex
court decides that Bhavani can continue as SPP. Or else the matter will be
heard afresh by the High Court with
the appointment of a new SPP.
New head for

IPL probe team
he Supreme Court appointed
CBI officer Vivek Priyadarshi
as the head of the investigating team of the three-judge committee for finding out the role of IPL
COO Sundar Raman in the betting
and spot-fixing scam in 2013. It
also asked CBI to make sure that
he is available to the committee.
The committee is led by former
Chief Justice of India RM Lodha.

The need arose as the earlier head
BB Mishra retired on March 31 and
the committee wanted Priyadarshi
to pitch in.
While justifying the need for a
new man, the committee informed
the court that there was need for a
further probe into Ramans role for
arriving at a final conclusion.
Artistic freedom and liability

aking objection to a poem which
had put abusive words in the
mouth of Mahatma Gandhi, the
apex court ruled that there was a limit
to which the freedom of speech and
expression could be extended. It also
clarified that one couldnt get away
with the license of artistic freedom
while making fun of public figures and
pointed out that attributing demeaning
language to such people was a legal
offense with a jail term.

The case was related to a petition
filed by a publisher, who was facing
criminal proceedings for publishing a
poem by a Marathi poet. The poem
projected Gandhi using obscene language in the garb of a narrator. The
counsel for the publisher pleaded that
the charges be dropped against him
since he had apologized, but the court
reserved its verdict.
17
SUPREME COURT
Bhushans get rapped

he apex court turned down the
pleas of lawyers Shanti Bhushan
and Prashant Bhushan that an
FIR be registered against a former
Supreme Court judge for his questionable verdicts during his tenure.
It ruled that such a request could
only be made by the parties to the
judgments.
If admitted, the plea will open the
floodgates for frivolous allegations

made against judges for their actions
and go against the smooth functioning of the judiciary, the court claimed.
The court also turned down requests
of petitioners to invoke the Lalitha Kumari judgment that wanted FIRs to be
registered in a complaint revealing
cognizable offence. It ruled that the
verdict could not be applied here.
Elections are sacrosanct

he election of a legislator will be considered null and void if he or she is found to
have some business relations with the
government and its arms at the time of filing
nomination or even after being elected, the
apex court ruled.
The verdict came in a case where a BJP
MLAs election in Uttar Pradesh was invalidated as he had taken up government contracts
after election. The governor had issued the
disqualification order. The court turned down
the plea of the MLA who sought an annulment

of the order.
In the process, the court also remo-ved a
major hurdle that follows such a disqualificationfresh polls for the vacant seat need to
be held within six months while the verdict on
disqualification could come in much later. It
set a timeframe of 16 weeks for an elected
legislature to challenge the disqualification in
a high court, and for the court to deliver the
judgment.
Install CCTVs
aking a grim view of the alleged manhandling of a
woman lawyer of the apex court at a police station in
the capital in April 2014, the Supreme Court ordered
the Delhi police commissioner that CCTVs must be set up at
all accessible places inside police stations in Delhi. It set a
deadline of two months for the order to be implemented.
The commissioner was also told to provide comprehensive information on the number of cameras already set up
and those in working condition. The court will hear the matter again on May 11.
The task of investigating the manhandling case was
assigned to the Special Cell of the Delhi Police by the court.
The probe was to be done by an officer of the rank of
deputy commissioner and above, and the report was to be
placed before the court in the next hearing.
18
May 15, 2015
Relief for Malegaon

blasts accused
he apex court ruled that there was nothing, prima facie, to
charge Lt Col Prasad Shrikant Purohit, Sadhvi Pragya Singh
Thakur and four others under MCOCA in the 2008
Malegaon blasts case. It also gave them a window for seeking
bail, provided they filed fresh pleas in the special court and the
court took up the pleas on merit and gave its ruling within
a month.
All the six had approached the apex court objecting to the
2010 order of the Bombay High Court which had brought back
MCOCA charges against them after it was removed by a sessions court. They had already spent about seven years in jail.
The court, however, had reason to believe that MCOCA could be
slapped on Rakesh Dhawde, one of the accused. NIA is still
probing the case.
NRIs will have to wait

greeing with the center that it needed
more time to bring about changes in
laws so that voting rights may be
extended to NRIs, the court reasoned that it
could not ask the legislature to come out
with a new statute or change the existing
one within a fixed time schedule. However,
the center was given eight weeks to do the
needful on the issue.
The court was hearing a clutch of petitions that wanted quick action by the center
on the matter.
The government had already informed
the apex court earlier that it had accepted
the Election Commissions suggestion that
voting rights be given to NRIs. They were to
cast their votes through postal ballots.
Replying to ano-ther query from the
court, the poll body said in its affidavit that
migrants who relocated from a particular
constituency in India couldnt go back to
cast their ballot in the same constituency.
Marriage by law
hile hearing a property dispute,
the apex court ruled that it
didnt matter whether a man
and a woman living together as husband
and wife were actually married. For, they
were a married couple in the eyes of
law, unless there are sound reasons to
question the presumption.
The court also made it clear that
such a woman was entitled to similar
property rights, as applicable to a legally

wedded wife. It was hearing a case
where the family members of a man
objected to a woman inheriting his property after he died, just because she
was not married to him. The woman had
lived with him for 20 years after his
wifes death. It gave her the legal status
of being married and upheld her right to
inherit the property.
Protest over new

head of NHRC
Marines leave
till July
erala governor and former chief justice of

India P Sathasivam was slated to head the
National Human Rights Commission. He
was to take over from KG Balakrishnan who
completed his tenure in April 2015.
However, the All India Bar Association went
to Supreme Court opposing the move. It complained to a bench headed by Chief Justice of
India HL Dattu that the center should have considered the candidature of other former chief
justices of India before zeroing in on
Sathasivam.
The plea was yet to be heard at the time of
India Legal going to press.
lthough upset at the delay in

concluding the trial of two
Italian marines accused of
killing two Indian fishermen, the
apex court further extended the
medical leave of one of them till
July 15. It permitted him to go to
Italy in September 2014 after he
had a stroke, and later, prolonged
his stay till April 13. However, it
will hear the marines petition
against National Investigation
Agency probing the case in the
last week of April.
NGT gets support

PIL against the order of the National
Green Tribunal (NGT) banning vehicles more than 15 years old in Delhi,
received a thumbs down from the apex
court. The petition pointed out that the matter fell under the Motor Vehicles Act, which
was outside the ambit of NGT, and therefore, the green court had no power to ban
vehicles. It also said that the NGT order
would impact more than 30 lakh cars and
crores of two-wheelers.
However, the court pointed out that the
green court was taking steps which were
beneficial to the people and there was no
point in discouraging it. It refused to interfere with the order.
Compiled by Prabir Biswas

19
COURTS
Train trouble
HE additional district and sessions judge of Una, Himachal
Pradesh, directed the Railways to
cough up around `35 lakh as compensation to two farmers of the district.
The public sector behemoth had acquired their land for the Una-Amb railway track in 1998.
As per the order, the Railways were
supposed to pay the amount by April
15, failing which the Delhi-Una
Janshatabdi Express was to be atta-
Concerned about
air pollution
FTER putting a ban on diesel-run
vehicles more than 10 years old in
Delhi, the National Green Tribunal
(NGT) relaxed its order for two weeks at
the request of the Delhi government and in
public interest. The court order had
come in due to the apathetic attitude of the
Delhi government in improving air quality
in the capital.
The government told the green court
that there were difficulties at the ground
level in carrying out the order and it could
disrupt essential services in the capital.
Truckers associations, unhappy with
the order, had issued a threat that trucks
bringing goods to the capital would stop
doing so unless the order is revoked.
The court also told the Delhi government that it must submit reasoned and
scientifically supported views on a range
of issues that would impact vehicular pollution in Delhi.
In another hearing, the Delhi High
Court abstained from issuing orders while
hearing a petition on air pollution in the
capital. The petition wanted the court to
stop chopping of trees for the time being.
The court observed that it needed to look
at reports from various agencies before
concluding what needs to be done.
ched by the court. The framers went to

court complaining that the compensation was yet to be paid even after the
Himachal Pradesh High Court had
asked the Railways in 2013 to do so
within six weeks.
Ban on documentary to continue

GREEING with the contention of
the central government, the Delhi
High Court ruled that the ban on
the telecast of BBC documentary,
Indias Daughter, will continue.

The documentary had sparked a
nation-wide debate as it showed one of
the Nirbhaya case convicts justifying
the rape and passing disparaging comments against women. The court,
while dismissing PILs on the issue,
agreed with the argument put forth by
the Ministry of Information and
Broadcasting in its affidavit that telecasting the documentary will only
embolden people to commit such
heinous acts in future. The matter will
now be taken up on May 27.
No room for abortion

N a significant verdict, the Gujarat High
Court refused to consider the plea of a rape
victim from Botad district of Gujarat that she
be allowed to abort the fetus on the ground
that it was not legally permissible. The law
allows abortion till 20 weeks after pregnancy
and the fetus was already 28 weeks old.
At the same time, the court asked the collector
to take all steps for the woman to have a safe delivery and see that the child was not abandoned.
Refusing to accept her plea that the delay in
seeking relief was genuine, the court clarified that
despite all the adverse consequences staring
her in the face, the law was sacrosanct.
Illustrations: UdayShankar
20
May 15, 2015
Ban revoked on Stephanian

HE Delhi High Court was not convinced by the reasons cited to
suspend a St Stephens student Devansh Mehta and stayed the
same. It also put a stay on the conclusion of an inquiry committee which wanted him thrown out of the college.
The IIIrd year student was accused of breaking the discipline of the
college on the ground that he had published an
interview of the principal in the college
magazine, Stephens Weekly, started by
him, without getting the go-ahead and
even spoke to the media on the issue.
The magazine was also banned by
the college.
Agreeing with the plea of Mehta
against the ban on the magazine and
his suspension, the court issued notices to the college, its principal, and
Delhi University. The university, which
had contended that Mehta could not be
completely absolved of all charges, was snubbed by the court, which wanted it to be impartial.
The court also objected to St Stephens denying Mehta an award
for good conduct, for which he had been originally selected. The court
asked the college to stop its distribution till it heard the matter again
on May 21.
Website blues
website cant be held guilty
if a user has been conned
by someone through it, and
a person must go through the
safety conditions listed on it
carefully before registering, the
Bombay High Court ruled.
The court absolved a matrimonial website of allegations of
cheating after going through its
terms and conditions. The charges had been levelled
by a lady from a
Mumbai suburb. She
had come in contact
with a man through the
website, and had plans
to marry him.
But the man duped
her and even made her
pay `2.93 lakh. To make matters

worse, he deactivated the account. The woman alleged that the
website did not inform her of the
deactivation.
The court came to the conclusion that the lady suffered not
because of the websites shortcomings but because she did not
go through the terms and conditions properly.
For a fair deal

HE Punjab and Haryana High Court turned
down the Ministry of Home Affairs (MHA)
rule that promotion could be given to officers of the paramilitary forces injured or disabled while on active duty, but not to jawans in
similar situations. It felt that the rule was
discriminatory.
The court was hearing a case wherein a BSF
constable, disabled while fighting militants in
Jammu and Kashmir in 2000, had been denied
promotion, and had appealed against it. It said
that the rule may come in the way of soldiers
putting in their best during any operation.
The constable was initially promoted according to an earlier MHA rule, allowing personnel
from the BSF and Assam Rifles to become eligible for promotion, but later failed to get the benefit after the rule was restricted to officers. The
court asked the MHA to promote Kumar and
give him all the benefits within three months.
Go easy on tobacco ban

HE Delhi High Court recently offered a
respite to those affected by the March 30
ban on chewable tobacco in the capital. It
asked the Delhi government not to forcefully
implement the order. The High Court was hearing a petition in which a tobacco trader wanted
the court to strike down the ban, claiming that
the state government had no powers to issue
such an order. It argued that it was for the center
to issue such a diktat. The court sought a
response from the Delhi government and will
hear the matter on May 20.
Needless information
comprehensive information on the medical
reimbursements of Supreme Court judges
cant be disclosed as it contains personal
details, and revealing it would amount to invasion
of their privacy, the Delhi High Court concluded.
While dismissing an RTI applicants plea for issuing directions for such information, it also took
into account that the information sought did not
serve any public interest whatsoever.
21
LEAD/ 26/11/ Inevestigation / David Headley
THE HIDDEN
INTELLIGENCE
BREAKDOWNS
BEHIND
THE MUMBAI
ATTACKS
American
intelligence
agency NSA and
British GCHQ,
despite their
access to a mine
of data, failed to
stop the terror
attack on the
Indian soil
By Sebastian
Rotella
HEN
Edward
Snowden revealed the governments vast surveillance
programs in 2013,
the Obama administration responded with a defense that
sounded compelling: the high-tech spying
apparatus had stopped terrorist attacks.
In a rush to provide success stories, senior
officials cited the capture of an American terrorist whose case I knew well. I had spent
several years reporting about David Coleman
Headley, whose reconnaissance for Pakistani
spymasters and terrorist chiefs was crucial to
the 2008 terrorist attacks in Mumbai that
22
May 15, 2015
killed 166 people, including six Americans.

Now the intelligence community was
claiming the National Security Agency had
played a key role in preventing Headleys
follow-up plot against a Danish newspaper
in 2009.
That surprised me. In a series of stories
and in the 2011 Frontline documentary, A
Perfect Terrorist, ProPublica had detailed
multiple breakdowns in the US counterterror
system that allowed Headley to elude detection for years despite tips that could have
prevented the attacks.
I consulted with intelligence and law
enforcement sources involved in the case,
and they were mystified, too.
When I first heard that statement, I was
scratching my head, a counterterror official
told me. I was trying to figure out how NSA
played a role. My recollection is that it wasnt

that much at all.
The mystery soon deepened when ProPublica gained access to a trove of Snowdens
classified materials. Suddenly a new, previously hidden layer in the story emerged, one
that largely contradicted the governments
claims and revealed Mumbai as a tragic case
study in the strengths and limitations of
high-tech surveillancea rare look at how
counterterrorism really works.
The Snowden documents show that,
months before Mumbai, British intelligence
began spying on the online communications
of Zarrar Shah, a key plotter who was the
technology chief for the Pakistani terror
group Lashkar-e-Taiba.
Britains General Communications Headquarters, or GCHQ, had the ability to
THE AMERICAN
AGENT
(Facing page) David
Headley, a key
figure behind 26/11
(Above) The burning
Taj in Mumbai
23
LEAD/ 26/11/ Investigation / David Headley
NSA did scoop up some of Headleys

suspicious emails. But analysts did not
realize he was a US-based terrorist
involved in the Mumbai attacks.
TRACING ORIGINS
David Headley, born Daood
Gilani, with his mother,
Serrill Headley
24
May 15, 2015
monitor many of Shahs digital activities,

including Web searches and emails, during
weeks in which he did research on targets,
handled reconnaissance data, and set up an
internet phone system for the attack.
But based on documents and interviews,
it appears that the British spy agency did not
use its access to closely analyze data from
Shah until a Lashkar attack squad invaded
Mumbai on November 26, 2008. Nor did the
British tell the Americans they were watching Shah beforehand, despite the close
alliance between GCHQ and the NSA.
The British data could have complemented separate chatter that the NSA and
CIA were collecting about a potential attack
on Mumbai, none of it related to Headley.
Senior US intelligence officials gave us
their first account of their warnings to India
about a Lashkar threat to sites in Mumbai
frequented by Westerners, including the Taj
Mahal Palace Hotel, the eventual ground
zero. Meanwhile, Indian intelligence had
separately tracked Shahs communications
before the attack, another layer of a complex
international scenario.
Once the shooting started, the spy agencies went into high gear. The British realized
that prior targeting of Shah gave them real-
time access to the Karachi control room from

which Lashkar chiefs directed the three-day
siege using phones and computers.
GCHQ and NSA pulled a haul of intelligence from the monitoring of Shah and others that enabled analysts to assemble a complete operations plan of the plot, according
to an NSA document. The evidence helped
the Western and Indian governments push
Pakistan to crack down on Lashkar.
US officials emphasized that they had
warned the Indians. British officials disputed
the idea that they had information that could
have prevented an attack; they said they
would have shared such intelligence with
India. The Indian government did not respond to requests for official comment,
though an official in the Intelligence Bureau,
Indias counterterror service, told me his
agency was not involved in monitoring Shah.
***
As with past failures to prevent terrorist
attacks, more aggressive analysis and better
intelligence-sharing could have made a difference. But high-tech spying has its limits.
Im not saying that the capacity to intercept the communications is not valuable,
said Charles (Sam) Faddis, a former CIA
counterterror chief. Clearly thats valuable.
Nonetheless, he added, it is a mistake to rely
heavily on bulk surveillance programs in isolation.
Youre going to waste a lot of money,
youre going to waste a lot of time, Faddis
said. At the end, youre going have very little
to show for it.
Headley represents another potential
stream of intelligence that could have made a
difference before Mumbai. He is serving 35
years in prison for his role. He was a
Pakistani-American son of privilege who
became a heroin addict, drug smuggler and
DEA informant, then an Islamic terrorist
and Pakistani spy, and finally, a prize witness
for US prosecutors.
In recounting that odyssey, we previously
explored half a dozen missed opportunities
by US law enforcement to pursue tips from
Headleys associates about his terrorist activity. New reporting and analysis traces Headleys trail of suspicious electronic communications as he did reconnaissance missions
under the direction of Lashkar and Pakistans

Inter-Services Intelligence Directorate (ISI).
Headley discussed targets, expressed
extremist sentiments and raised other red
flags in often brazen emails, texts and phone
calls to his handlers, one of whom worked
closely on the plot with Shah, the Lashkar
communications chief targeted by the
British.
US intelligence officials disclosed to me
for the first time that, after the attacks, intensified NSA monitoring of Pakistan did scoop
up some of Headleys suspicious emails. But
analysts did not realize he was a US-based
terrorist involved in the Mumbai attacks who
was at work on a new plot against Denmark,
officials admitted.
The sheer volume of data and his use of
multiple email addresses and his original
name, Daood Gilani, posed obstacles, US
intelligence officials said. To perfect his cover
as an American businessman, Headley had
legally changed his name in 2006.
They detected a guy named Gilani writing to bad guys in Pakistan, communicating
with terror and ISI nodes, a senior U.S. intelligence official said. He wrote also in fluent
Urdu, which drew interest. Linking Gilani
to Headley took a long time. The NSA was
looking at those emails post-Mumbai. It was
not clear to them who he was.
They hadnt connected the dots, the official said. They had only some of the puzzle
pieces. They needed something external, like
a specific entity helping us.
In fact, it was the FBI and Customs and
Border Protection which finally zeroed in on
Headleywith foreign help. FBI agents in
Chicago told us the story for the first time
during our reporting for the film.
***
On July 22, 2009, a lead landed on the
desk of a youthful FBI agent named Jeremy
Francis. He had joined a Chicago counterterror squad five days earlier. The tip was brief
but specific: British intelligence was monitoring two suspected Al Qaeda militants in a
northern city called Derby. The duo had
received phone calls from a man in Chicago
named David who planned to travel to meet
them soon.
NEEDED, BETTER
SYNERGY
Mumbai terror
attack happened
because intel
agencies globally
didnt work in sync
Getting access to Headley

GOPAL SUBRAMANIUM, the then
solicitor general of India, had
appeared before various authorities in
the US to get permission to interrogate Richard Headley. It was only
after repeated efforts that India managed to get access of interrogation
reports of the US.
Speaking to India Legal, he says:
I was the solicitor general of India
back then and had one-to-one meeting with then Attorney general of the
United States, Eric Holder. He was
extremely cooperative and a man in
complete command, willing to take
decisions. And I think in a matter of
15 minutes we got access. But my
job was only limited to the access,
after which I had no occasion to
review the material.
Francis and his partner traced the calls to

a pay phone on Chicagos north side. The
agents worked with border protection analysts in Washington, DC, who pored through
flight manifests looking for passengers with
the first name David who had imminent
plans to fly Lufthansa from Chicago to Manchester via Frankfurt.
Border protection analysts whittled down
the list to Headley, whom airport inspectors
had questioned in the past. The FBI relayed
his identity to British counterterror officers
25
LEAD/ 26/11/ Investigation / David Headley
From the luxury of prison cell

PAKISTANI-AMERICAN LeT terrorist
David Headley, who is serving a 35
year sentence for his role in the
26/11 Mumbai attacks, has written a
memoir in prison. The memoir
details how Lashkar's dedication
to the cause of the liberation of
Kashmir inspired him to join the
terror group. American public affairs
TV programme Frontline was given

access to a draft of the memoir
Headley wrote in jail. Excerpts from
the draft give insight into his turn
towards extremism. The book gives
details about his training with
Lashkar-e-Taiba and his preparations for the Denmark attack against
the Jyllands-Posten newspaper.
as his flight was in the air on July 25.

The British shadowed Headley in Derby.
The suspected Al Qaeda men told him they
couldnt give him the $20,000, guns and volunteers he wanted for an attack on a Danish
newspaper that had published cartoons of
the Prophet Muhammad. European agencies
monitored Headley as he traveled to Sweden
and Copenhagen, where he did reconnaissance for the newspaper plot.
He came home to Chicago. FBI surveillance teams deployed. The case grew.
At some point nearly every agent and
analyst in the Chicago field office was working some aspect of this case, Francis told us.
There were hundreds of people back in FBI
headquarters that were working this case.
Their most urgent fear: a plot in the
United States. Headleys simultaneous ties to
Al Qaeda, Lashkar and Pakistans ISI were
unprecedented.
Whats the ISIs role, what are they doing
is he working for them? Robert J Holley,
the special agent in charge of the FBIs
Chicago Division, recalled thinking. We
dont know what we have here.
***
Once Headley had been identified, the
NSA played a role in the investigation. But
our reporting showed that its contributions
were more modest than the accounts offered
by the intelligence community in 2013.
Senior officials had asserted that Headleys Denmark plot was stopped by the NSAs
215 program, which involves bulk collection
of US phone records: date, duration, num-
26
May 15, 2015
bers called. When a White House-appointed

panel reviewed the 215 programs role in
counterterrorism investigations, however, it
concluded the claim was wrong.
We are aware of no indication that bulk
collection of telephone records through
section 215 made any significant contribution to the David Coleman Headley investigation, David Medine, who chaired the
Privacy and Civil Liberties Oversight Board,
told us in an interview.
Senior officials also had suggested that
the NSAs 702 program, which collects the
content of overseas emails and other communications, foiled Headleys plot. Interviews
with counterterror officials showed that, in
reality, it played only a support role.
The 702 program was a piece of the
investigation that helped to map out Headleys overseas contacts, Holley said. But he
made it clear that the NSA did not crack the
Denmark case or identify Headley.
This was not a plot, though, that is discovered by that program? I asked Holley.
Thats correct, he said.
In interviews about our findings, US
intelligence officials conceded that some of
the assertions about the NSAs role in
Headleys capture were overstated, though
they insisted that the agencys work on the
case was valuable.
Officials reminded me of the super-heated atmosphere after the Snowden revelations. The Obama administration was under
pressure to defend secret programs that had
never been discussed before. As a result,
statements about Headley and other cases
sometimes lacked nuance and accuracy,
officials say.
These were highly classified programs,
and it took a while to analyze the benefits of
the programs and to articulate them publicly, Medine said.
Experts say portraying bulk surveillance
and other intelligence programs as a magic
bullet that can stop attacks is too simplistic.
In reality, a mosaic of intelligence from multiple sources is usually required.
Most threats are not detected by this
kind of bulk collection alone, said Andrew
Liepman, a former deputy chief of the National Counterterrorism Center now with the
PERPETUATING
INJUSTICE
Zaki ur-Rehman Lakhvi,
accused in the Mumbai
terror attack, has been
freed by Pakistan
Rand Corp. Most of it is a combination of

good work from the FBI, intel from human
sources, and the product from NSA is essential in this mix.
The NSA contributed to the massive
amount of data investigators used to build a
portrait of Headley during the weeks they
shadowed him. As agents planned the arrest
in early October of 2009, they consulted with
an FBI behavioral specialist and Headleys
former DEA handler.
The assessment: Headley saw himself as a
soldier. He responded with deference to
authority and was likely to cooperate, as he
had after past drug busts. The trick was to
treat him with respect, like a worthy foe surrendering on the battlefield.
Headley was planning to leave the country again. Holleys team decided to arrest him
at OHare Airport after he passed through
a security checkpoint. They would approach
him discreetlyno drawn guns, no shouted
commands, no swarm of agents in body
armor. It worked. He politely complied.
The agents who escorted him to the interrogation room at the Chicago field office
made his former DEA handler briefly visible.
The message: time to change sides again.Two
agents, military veterans chosen for their
interrogation skills, sat down with Headley.
He didnt stop talking for two weeks.
Although the communications surveillance had hinted at links to the Mumbai
attacks, the agents were stunned by the
extent of his role in the plot and his highlevel contacts. He gave the FBI unprecedented evidence and intelligence about Al
Qaeda, Lashkar and the hardest target of all,

the ISI.
His testimony resulted in the unprecedented US indictment of a serving ISI officer,
known only as Major Iqbal, for the terrorist
murders of the six Americans in Mumbai.
***
Today, Major Iqbal and other fugitive
masterminds are at large in Pakistan protected by the ISI, an intelligence service that
is nominally a US ally, according to Western
and Indian officials and court documents.
Although Pakistan arrested a few Lashkar
bosses, their trial remains stalledsix years
later. In the latest display of impunity, two
weeks ago Pakistani authorities released on
bail Zaki ur-Rehman Lakhvi, the military
chief of Lashkar.
Even the defendants behind bars are still
a threat. Shah, Lashkars technology and
communications chief, and his fellow militants continue to direct terrorist activity
from the prison, according to current and
former Western and Indian counterterror
officials.
Theyre able to continue operating unfettered there, said Tricia Bacon of American
University, a former State Department intelligence analyst. The control room that they
once had in Karachi to oversee the Mumbai
attacks, they essentially now have in the
prison in the middle of the military capital in
Pakistan.
Thats another reason why Headleys story
is still relevant. Justice has not been done. IL
Our reporting
showed that
the NSAs
contributions
were more
modest than
the accounts
offered by the
intelligence
community in
2013.
Courtesy ProPublica
27
INVESTIGATION/ Vadra Land Deal
THE SKY
IS THE
LIMIT
This could well sum up a CAG report on
Robert Vadras land deals in Haryana.
The state government is seen as flouting
all norms to accommodate Sonia
Gandhis son-in-law
By Vishwas Kumar
HE Congress party could face

a major embarrassment in
opposing the Modi governments attempt to dilute land
acquisition laws. A recent
Comptroller and Auditor General of Indias (CAG) report on the earlier
Congress government of Bhupinder Singh
Hooda in Haryana has alleged that several
private companies, including that of Robert
Vadra, Sonia Gandhis son-in-law, had
earned a windfall on lands purchased from
farmers at throwaway prices.
According to the CAG report, Vadras
company, M/s Skylight Hospitality, sold the
28
May 15, 2015
lands purchased from farmers between 2007

and 2008 in the Gurgaon-Manesar area to
DLF Universal Limited at 7.73 times the
original cost. In addition, two other companies, M/s Sun Star Builders Pvt Ltd and
M/s Witness Construction Private Limited
(single developer with two companies), and
M/s Botil Oil Tools I India Pvt Ltd, formerly
known as M/s Baker Oil Tools (Bharat) Pvt
Ltd, earned 303 and 880 times the original
cost of land respectively after they sold it off
to their collaborators and developers. This
was within a few months of them being granted the license to develop colonies by the
Hooda government.
CONTROLLED AREA
In order to avoid haphazard development
around cities, the state government under
Section 4 of the Punjab Scheduled Roads and
Controlled Areas Restriction of Unregulated
Development Act, 1963 (applicable to
Haryana), declares any area outside the limits of the municipal town or any other area
deemed fit for residential, industrial, commercial, institutional or recreational activities to be controlled area. Development plans
for these areas are prepared under Rule 8 of
the Punjab Scheduled Roads and Controlled
Areas Restriction of Unregulated Development Rules, 1965.
This is how it works. Private developers

purchase land from landowners and then,
D-G, Town and Country Planning Department (TCPD), grants licenses to them
according to Section 3 of the Haryana
Development and Regulation of Urban Areas
Act (HDRUAR), 1975. From 2006-14, TCPD
issued 1,003 licenses to colonizers in
UNDER THE
SCANNER
The CAG report has
unearthed questionable
land deals of
Robert Vadra
The CAG report says Vadras company,

M/s Skylight Hospitality, sold the lands
purchased from farmers to DLF Universal
Limited at 7.73 times the original cost.
29
PATRONISING
CORRUPTION?
As CM, Hooda allowed
and even helped private
companies bypass rules
with impunity
UNI
CROREPATIS
COMPANY
Skylight Hospitality Pvt
Ltd has a registered

address at 268, Sukhdev
Vihar, and its registration
number is 170056.
It was made into a com-
pany on November 1,
2007.
Its shares had an
authorized capital of
`1 crore and a paid up
capital of `5 lakh.
As per Registrar of
Companies, Robert Vadra

owns 99.8 percent shares
of Skylight, while his
mother, Maureen Vadra,
holds 0.2 percent.
30
May 15, 2015
Haryana, out of which, 225 license files were

scrutinized by CAG. The development plan
of controlled areas in Gurgaon-Manesar was
notified in February 2007.
Expectedly, after the grant of license for
setting up of commercial colonies, the value
of land multiplied several times. However, as
per Rule 17 of HDRUAR, the colonizers cannot transfer their licenses to any other person
without the approval of TCPD director.
Moreover, as per the bilateral agreement
between developers and the Haryana government, firms were required to set up commercial colonies on the land and derive a maximum net profit of 15 percent of the total project cost after making provisions for statutory
taxes and net profit. And if the net profit goes
beyond 15 percent of the total cost, it has to
be deposited with the government in completed projects.
To maintain consistency, this should have
also applied to projects which havent been
completed, says the audit report.
NELSONS EYE
However, it found that the government did
not bother to collect money from private
firms, allowing them undue profits. Among
the companies benefited was Skylight. The

report noted: Thus the department (TCPD)
neither at the time of granting-in-principle
approval nor at the time of formal approval
for transfer of licenses (to collaborators)
ensured that net profit beyond 15 percent of
the total cost accrues to the public exchequer.
This enabled the developers to earn huge
profits merely by selling the land, while the
government had to forgo a sizeable amount.
There were also irregularities, connivance
and flouting of rules in allotment of land to
private firms by the Haryana government,
including Skylight. Some of the key findings
are: According to the HDRUAR Rule 5 and
Rule 11, the government is responsible for
metalling of roads, footpaths and street lightning in colonies but the upkeep is in the
hands of the private builder for five years
from the date of issue of completion certificate. It was observed that while granting
licenses to developers in Sector 83, Gurgaon,
the area owned by the developer but falling
under the 24-meter circulating road (standard stipulation) was also covered on the
condition that the applicant would construct
the circulating road passing through their
site at their own cost, and road area shall be
transferred free of cost to the government.
The manner in which the alignment and continuity of such roads would be done has not
been envisaged.
Further, as per the existing practice, the
commercial area sites should be approachable through internal roads. In case of M/s
Skylight Hospitality Pvt Ltd, the site was not
approachable. The Department (TCPD),
however, decided (on March 2008) to waive
off this condition on the ground that
approach would be taken by licensee through
the plotted colony of Onkareshwar Properties Pvt Ltd and Mark Builtech Pvt Ltd in
collaboration with Vatika Landbase Pvt Ltd,
said the audit report.
SUBVERTING RULES
Another violation in lands allotted to
Skylight pertains to the area for setting up of
commercial colonies. The policy in this
regard, framed in December 2006, says that
in Hyper Potential Zone (HPZ) under which
Gurgaon falls, the minimum area for setting
up a commercial colony is two acres. The

audit observed that commercial projects
were sanctioned in Sector 86, Gurgaon, in
less than two acres on the rationale that if
applied land was contiguous with already
licensed area (i.e. another plot of land), then
the area of both plots is to be taken
into account.
Moreover, there were no clearly laid down
norms regarding assessment of two acres and
whether this was inclusive of roads and green
belts. Thus, while appraising the license of
M/s Skylight Hospitality Pvt Ltd, it was
observed that out of the 3.531-acre applied
area, 0.83 acres fell in residential zone and
1.35 acres in the 24-meter internal circulation plan road. After excluding these areas,
net area for commercial license remained
1.351 acres. The colonizer was assessed to
have fulfilled the minimum area requirement
of 2 acres, said the audit, clearly hinting at a
nexus between Skylight and the then
Haryana government.
With no clear procedures for computing

area availability, no clarity and
consistency, particular applicants may
have got undue benefits, the report said.
The audit found further evidence of collusion. As per the final development plan of
Gurgaon-Manesar 2021 (name of report),
the area falling under roads was not to be calculated in net planned area. Only Floor Area
Ratio (FAR) was to be given for transferring
the land falling under roads. (This means
that areas earmarked for roads had to be left
as such and one can only benefit in FAR,
which is the number of floors permitted in
ratio of the net area). While this principle
was applied in 12 cases, the net area indicated against each of these applications was
after deducting area under sector roads, etc.
But in respect of M/s Skylight Hospitality Pvt
Ltd, the whole area, including the area
TOUGH TIMES
AHEAD?
The Gandhi family will
have to answer many
questions on Vadras
company, raised by the
CAG report
UNI
31
CREDIBILITY
CRISIS?
(Right) Rahul Gandhi
meeting farmers
delegations on NDAs
land acquisition bill
(Below) With the CAG
report, the center can
now turn the tables on
the Congress
Photos: UNI
falling under roads, has been indicated. It

was not clear as to why such a distinction has
been made in respect of M/s Skylight
Hospitality, the report says.
GREEN BELT ENCROACHED
Yet another violation was in the interpretation of the development plan. The total commercial area of Sector 83, Gurgaon, was
126.80 acres, out of which 63.40 acres was to
be given to private developers. By the time
the green belt, roads, streetlights, etc, are
considered, the area came up to 71.202 acres.
As of March 31, 2008, there were 14 applica-
32
May 15, 2015
tions, of which M/s Skylight Hospitality Pvt

Ltd was at Serial No 14. Scrutiny of records
by CAG shows that if the application of
Skylight was to be considered, Vadras 2.701
acres plot land would have been allocated by
encroaching on the green belt of 7.802 acres
land (71.202-63.40 = 7.802).
Thus in violation of existing rules, the
TCPD allowed Vadras allocation of lands.
Later, similar benefits were extended to other
developers. Nailing the Haryana government
for distorting the rule, the audit report says:
As per Para 4 of the Development Plan, the
area under green belt and sector road shall
not be included under the net planned area.
Area under commercial belt and residential
areas were, as such, inclusive of area under
internal circulating roads and service roads.
However, TCPD has again added back area
under 24 meter circulating road and service
roads while computing net area falling under
commercial belt. The decision to add back
area falling under internal circulating roads
and green belt while considering the case of
Skylightwas not as per existing practice.
Thus, in the absence of clearly spelt out
procedures for computing area availability,
lack of clarity and consistency, the possibility
of extending undue benefits to particular
applicants cannot be ruled out, it added.
It will be interesting to see how this salvo
by CAG is tackled by the Congress. IL
NATIONAL BRIEFS
Judges conduct
THE Supreme Court has put up the in-house
procedure for action against Supreme Court and
high court judges accused of misconduct and
impropriety on its website. These rules had been
adopted in 1999 based on a 1997 report of a panel
of senior judges. It delineates the right steps to be
followed in case of misconduct by high court
judges, high court chief justices and judges of the
Supreme Court coming to light.
Not just for Delhi
Suicide stirs debate on gays
AFTER clamping down on diesel vehicles older than 10 years and petrol-run
vehicles older than 15 years in the NCR,
The National Green Tribunal (NGT) has
decided to take on polluting vehicles
across the country. It has issued notices
to the chief secretaries of all states and
Union territories seeking their response
on steps taken to prevent vehicular
pollution in their states/UTs.
At the same time, the NGT has taken
a serious note of polluting industries
around the NCR. According to a
Hindustan Times report, it has issued a
notice to the UP government, directing it
to reply to a petition by Jai Hind NGO,
which claimed that pottery units in
Khurja, located 90 km away from Delhi,
do not have environment clearances and
are detrimental to environment.
The tribunal has also asked the
Gujarat Government to file its reply
regarding the giant Statue of Unity of
Sardar Patel, expected to come up on the
Sadhu Bet Island on the Narmada near
Vadodara, following a petition by
activists that the project will entail largescale construction, including that of
hotels, kiosks, a convention center and
tourism amenities, besides road link, and
cause ecological damage to the river bed.
WHEN Priya Vedi, a young medico at

AIIMS, ended her life because her husband was a gay and had relations with
another gay, it revived the demand for
decriminalizing gay sex. Last year, the
Supreme Court had criminalized gay
sex under Section 377. But LGBT
activists say that its the taboo on gays
that forces families to marry off their
gay sons, resulting in such tragedies.
Work at Delhi district courts paralysed

ALL judicial work at the six trial courts
Tis Hazari, Patiala House, Karkardooma,
Rohini, Saket and Dwarkain Delhi was
held up as their lawyers went on strike.
They were protesting against the delay in
passing an amendment bill related to the
enhancement of pecuniary jurisdiction
of trial courts. The strike was likely to
continue till April 28.
The coordination committee of bar
association of all district courts in Delhi
wanted the bill to be passed in the current budget session of parliament. A full
bench of the Delhi High Court had
already recommended to the central government that pecuniary jurisdiction be
increased from the current `20 lakh to
`2 crore, but there was no progress on
the issue. The bill was tabled and presented in the Rajya Sabha on March 4
but later got deferred for reasons
unknown.
Lawyer killed
over salad
RAJIV SHARMA, a lawyer at the Tis
Hazari Court in New Delhi, was killed
at a dhaba inside the court premises,
when he had an argument with the
person running the dhaba on contract,
Dhana Ram Chaudhary, apparently
over extra serving of free salad.
Chaudhary has been arrested and has
confessed to his crime.
The police are also interrogating the
owner of the dhaba, Manoj Sharma, who
is also a lawyer.
Lawyers at all the six district courts
struck work on April 17 to protest
against the murder, and to demand
better security, including more CCTV
cameras in all the courts.
33
DEFENSE/ Rafale Deal
UNI
HAVE WE BOUGHT A LEMON?

While India has gone to town about the Rafale deal, few are asking why we
are buying a plane no one else wants and why other planes werent
considered? Is everything kosher about the deal?
By Bikram Vohra
34
May 15, 2015
Indian media, in recent years has begun to believe in an irrational sense of

entitlement. It is manifested in an odd conviction that it is owed an advance
warning. There seems a rage over the Rafale purchase deal, fuelled more by
indignation that its mandarins were not told about it and were caught on the
back foot. They are actually teed off.
N French, the word Rafale means

a rapid firing of artillery. So, most
of the editorial salvos we shall
read or hear are going to be politically motivated and there will be
a sedulous search for scandal. We
are now accustomed to pulling
out the fluff from our navels and holding
them to the murky light of suspicion. With
TV adding to the clamor, it should be a noise
fest of no great worth. But enough dust will
be raised (it has already just begun) as questions are manufactured, stored in a quiver of
half-baked malice and let off in any direction
that makes for some sensation. And there are
a slew of angles to choose from.
Dont forget you dont just buy the plane.
You have to also buy the spares, invest in
training, logistics, simulators, maintenance
manuals (and the politicians). So much for
the priorities of the arms industry.
But lets talk business.
Traditionally, fighters have a functional
window that calculates their capability.
These are:
Surprise the opponent without being
surprised
Outnumber the enemy in the air
Outmaneuver the enemy to gain firing
position
Outlast the enemy while outmaneuvering
him
Achieve reliable kills
The Rafales surprise ability cannot
match the stealth F22. If we stop at 36 aircraft we do not outnumber the enemy. The
maneuverability is worthwhile only in the
maritime version. Outlasting the enemy
depends on range and training and armament as does achieving reliable kills which
are now relevant in more of a Top Gun scenario than bed-rocked in reality.
Let us see this deal for what it is. Much
UNI
like the curates egg, it is good and bad

in parts.
No one has ever said the Rafale is a bad
aircraft. Nobody makes bad aircraft. But,
then, no one ever said the Bofors shoot and
scoot 155mm gun was a lemon either, but the
ripple effect of that mess still haunts the corridors of power.
o, why the Rafale? Because we have

fresh amour with Paris? Perhaps
EADS will sweeten the deal for Indias
aviation sector with a better package for the
Airbus family of aircraft. There is an offset
element they havent told us about and
France might be helping us in constructing a
major project.
If the agreement encompasses a venture
to make nuclear reactors, the Rafales are just
a canap on the smorgasbord.
Maybe we are getting the Rafale below its
price tag of $100 million. Aircraft are never
sold according to the tag, always well below.
The US wont give us the F-22 Raptor,
DEFT DIPLOMACY
(Facing page) PM Modi
and French President
Francois Hollande in Paris
(Top) Rafale aircraft of the
French Air Force
(Above) Serge Dassault,
Chairman and CEO of
Dassault Group
35
Perhaps no one has

asked why an aircraft
that is 14 years old and
never had a market
abroad should be the
first choice. Why no
other viable options?
PIB
stopping its largesse at the F-18. Maybe

Prime Minister Modi has a penchant for
being a headline-maker on each foreign trip.
And this is par for the course. Perhaps no one
has asked why an aircraft that is 14 years old
and never had a market abroad should be
first choice. Nor (and here is the puff of dust)
has there been much said about other viable
options being placed on the table.
KILLING WITH PRECISION

(From top) Eurofighter performing at Aero India 2011 in
Bengaluru; Su-35 of the Russian Air Force; USAs F-35 JSF
is a fifth-generation fighter
36
May 15, 2015
aybe all these factors came into

play, parts of them or none at all.
Or maybe its just a plain deal
between two leaders after three years of hemming and hawing. Thats pretty much how
the Rajiv Gandhi and Olaf Palme agreement
came about to buy the 411 Bofors gunswith
a chat, followed by a visit from the Swedish
prime minister to India and a gentle request
to please, pretty please, take the gun, well
throw in the ammo and the maintenance
manuals for cheap but help us keep the factory open.
Gandhi agreed. And the rest, as they say,
is sordid history. The guns were cannibalized, the manuals offered a feast to termites
and the accusations of the kickback eclipsed
the guns merit. Now, while the rescue mission element may not be quite as valid in the
Rafale deal, it is still a sop if it is examined
in isolation.
Except for Egypts recent 26 fighter deal
for 5 billion Euros, the Rafale has not found
a market these past 14 years. Unlike the
Eurofighter, which has been made by a
consortium, the Rafale is a purely French
effort and no one else has gone for it. To that
extent, India has brought a balloon to the
dying party.
There is no clarification on the variant of
UNI
the 36 planes that India is buying. The naval

Rafale makes some sense. The self-sell underscores a specific capability. Catapulted from a
carrier deck in less than 75 meters, the Navy
Rafale instantly and automatically rotates to
the correct angle of attack.
This critical operation is made possible by
the aircrafts innovative jump strut nose
landing gear. So if this batch is destined for
the flight deck and is the only delta-winged
carrier fighter in the world, then, maybe we
have a leading edge in this deal.
f not, then it is a mighty expensive option

for a heavy fighter especially since the
indigenous production promise seems to
have stalled before take-off and now has a
broken wing.
It is this broken wing that is going to
power the suspicion that everything is not
kosher about the deal and a whiff of scandal
could be driven to a full blown stench because
there are other aircraft that havent even got a
look in.
But, hey, are the French giving us the reactors? Why obscure the details and allow conjecture to take over?
I once asked Serge Dassault (Chairman

and Chief Executive Officer of Dassault
Group which manufacturers the Rafale) why
anyone should buy a Rafale at over three
times the price of an F-16 Block 60 Fighting
Falcon. He said that it was four times more
efficient than the most upgraded Lockheedmanufactured fighter ever.
I dont quite know how true that boast is.
In an age when drones are taking over air
battles and delivery systems for missiles have
become as high a priority as Patriot-type
defense systems, the heroic dogfight imagery
is becoming passe.
Conventional wars are not on the agenda.
Besides, the upgraded version (the F-16 is the
poster child for the success of navigating
obsolescence) of even the Sukhois and the
Gripen has given them a great lease on life.
The Gripen, for example, is the only lightweight fighter of top-line contenders.
Boeings F/A-18E/F, Dassaults Rafale, the
Eurofighter Typhoon, Lockheed Martins
F-22 and F-16 Block 60, Mitsubishi and Lockheed Martins F-2 and Sukhois Su-30/35 all
have maximum takeoff weights (MTOW) in
excess of 45,000 lbs, with commensurate
SORDID HISTORY
The ripple effect of the
Bofors gun (top) deal
during Rajiv Gandhis
tenure still haunts the
corridors of power
37
STILL IN
CONTENTION
The upgraded version
of Gripen has given it a
new lease of life
So, why the

Rafale?
Because we
have fresh
amour with
Paris?
Perhaps EADS
will sweeten
the deal for
Indias
aviation sector
with a better
package for
the Airbus
family of
aircraft. There
is an offset
element they
havent told
us about.
38
May 15, 2015
PIB
price tags and maintenance costs. If you

recall, India has been to war with obsolete
Gnats against Sabrejets and scored. If you
take a Su-35, a Typhoon Eurofighter, a
Gripen along with an F-18 and pit them
against the Rafale, it is a toss-up wholl come
out tops.
ost counts because these babes need

high maintenance. An F-16 Block 60
would be available for $30 million.
The US air force got them at roughly a discounted $17 million. The Rafale comes in a
$100 million. The Su-35 Super Flankers
clock in at $35 million give or take a few
(they like to catalogue the price at $60 million but dont go for that) and they are
absolutely first-rate aircraft.
If India has opted out of the Russian
monopoly and spread its wings on the global
hardware market, the price differential is a
massive price to pay for cocking a snoot at
Moscow. But that does not change the
incomparable wow factor of the acrobatic
Su-35 and the hush it creates when demonstrated at Farnborough, Le Bourget, Singapore or Dubai whenever aviations faithful
gather. The Gripen, a largely under-rated
first-rate fighter has an official tag of about
$60 million, but highly negotiable with
the latest upgrade the JAS 39 E/F which
has a carrier version promising to be a
tough pugilist.
At this moment, the Americans think they
have a winner in the F-35 JSF project. With
good reason. The US has recognized the need
for more light fighters to meet the projected

demand and are pinning their hopes on the
Joint Strike Fighter (JSF). Right now, the
JSF sounds slightly impractical. A plane with
a 56,000-lb MTOW (not exactly a light
fighter) and an undisclosed unit cost is difficult to imagine. Yet, if there is no ban on
export, the JSF could do to the world military
aircraft industry what the F-16 almost did:
kill it.
Suddenly, there will be a stampede for the
JSF and there wont be enough to go round.
The other offers will pale into insignificance
and the JSF will have that special stamp of
authority. The intended result of the JSF program is reflected in one sentiment: a stateof-the-art fifth-generation fighter costing
just a little more than an F-16C. That is to
be seen.
That the Indian Air Force is over a decade
behind in its frontline fighters is an understatement. The MiG-21 flying coffins became
junks years ago. The Jaguars are fat and
clumsy. The Harriers are far too old. We fall
back mostly on the upgraded MiGs and
Sukhois earlier derivations.
The question to be asked is not what the
stand-alone Rafales can do for us. And the
answer is: not much in themselves. Unless
this is the first segment of a bigger plan to
purchase strike aircraft and a plan that dovetails with this purchase and has a time critical frame, one is loath to say that our generosity is ill-placed and only the French will
be singing in the rain. The Air Force will still
be woefully behind the curve. IL
MORE NEWS...
Parliaments prerogative
REFUSING to take cognizance of a PIL that cited incongruencies in
reservation benefits accorded to SCs/STs in the past 64 years, the
apex court ruled that it was a matter for the parliament to decide.
Incidentally, it was the Supreme Court which had issued notices to
the center and state governments on the issue in 2011.
The PIL had pointed out that socially and economically advanced
SCs and STs received all the quota benefits though they constituted
only a small number among the SCs and STs living in India. It stated
that 99 percent of them were yet to avail the special privileges.
Succor for acid

victims
PRIVATE hospitals are duty-bound to
offer all kinds of treatment, and that too
free of cost, to victims of acid attacks and
the government must act against those
violating the order, the apex court made it
clear. The court had earlier set strict rules
on the sale of acid, in the wake of frequent
attacks on women.
Clarifying that even plastic and other
costly surgeries that entail huge expenses
Man attempts
suicide inside
high court
must be carried out by the government

hospitals without charging a penny, the
court also wanted them to provide medicine, food and other facilities.
Child rights matter

LAMBASTING the center for its lackadaisical attitude towards finding out missing
children, the apex court pointed out that
child rights perhaps did not matter for the
government. The center could not provide
figures on how many children, who had
gone missing, were traced in 2014.
It also took the center to task for not
appointing chairperson and other members
of the National Commission for Protection
of Child Rights despite having asked to do
so by March 31.
Concern for widows
ON April 24, a man attempted suicide

inside Hyderabad High Court in front
of a judge. It was afternoon, while the
court proceedings were on, that
V Shankar from Sherlingampally in
Ranga Reddy district suddenly barged
into a hall where Justice SV Bhatt was
presiding. Before entering, he poured a
bottle of kerosene on himself.
After he entered the hall, he started
shouting slogans for justice and set
himself on fire. Advocates present there
immediately doused the flames, while
the judge summoned the police and
directed them to rush the man to
Osmania Hospital. He sustained 15
percent burns.
Shankar was aggrieved over a case
pertaining to pattas (ownership) for
house site, and was unable to build a
house on his land. The judge assured
him that justice would be done as per
law. Later, the court staff clarified that
no case pertaining to Shankar was listed before Justice Bhatt. Shankar, incidentally, is president of Aikya Praja
Sankshema Sangam.
THE widows of Vrindavan drew the

attention of the apex court recently for
their pitiable living conditions. Aggrieved
by the sheer negligence meted out to
them, the court asked the Uttar Pradesh
government to provide proper facilities to
them through welfare schemes within six
weeks, so that they could lead better lives.
The state government in its response said
that `3.65 crore had already been granted
for their welfare.
39
BUREAUCRACY/ Post-retirement Jobs
Many civil servants after

retirement are joining
corporates and PSUs,
holding top positions with
enviable salaries. The
case with retired taxmen
is no different
By India Legal
Correspondent
40
May 15, 2015
WOOING
THE
BABU
VEN before the government

inks new tax laws to curb black
money, the demand for retired
taxmen has soared. Corporates,
both Indian and foreign, as well
as high-net-worth individuals
are seeking their help in meeting the challenges
that will come with the new tax regime.
One such taxman is Sudhir Chandra, an
Indian Revenue Service (IRS) officer. After
retiring from the Central Board of Direct Taxes
(CBDT) in May 2011 as its chairman, he floated
an organization called CTAR (Center for Tax
Awareness & Research), which claims to be
Indias first tax research center being anchored
by former tax officers. Besides creating tax
awareness, it also provides tax consultancy.

Other high-profile retired bureaucrats who
have joined CTAR are ex-telecom secretary PJ
Thomas, former CBI Director DR Karthikeyan
and former chairman of the Central Board of
Excise and Customs SK Goel. Other IRS officers, such as RK Sharma, BN Dutta and Anjani
Kumar, have also joined CTAR.
Talking to India Legal on his post-retirement activities, Chandra says he hates the
word retirement. He says life has different
stages and each of them are important. The
former IRS officer compares it with a train
journey, where one comes across different stations. If one has to reach the final destination,
one needs to catch a train from station A to
ABSOLUTE POWER
(From left) As a taxman, Sudhir
Chandra exposed Madhu Koda,
CM, Jharkhand and handled
Mayawatis case. He was also
questioned for calling private
sleuths to then FM Pranab
Mukherjees office in 2011;
and handled the 2010 CWG
case involving Delhi CM
Sheila Dikshit
41
BUREAUCRACY/ Post-retirement Jobs
IN DEMAND
(L-R) Ex-telecom
secretary PJ Thomas
and former CBI
director DR
Karthikeyan
have joined a tax firm
floated by
Sudhir Chandra;
Taxman Ashok Kacker
runs a tax
consultancy firm after
quitting as chief
commissioner,
income tax
42
May 15, 2015
reach station Z. I had an option to

join private companies like several of my colleagues or do something on my own for public cause.
I chose the later. I also offer advice to corporates to earn my livelihood.
His CTAR colleague SK Goel shares
Chandras passion for work and life. Explaining
the idea behind CTAR, Goel says: CTAR also
gives basic and free advise on tax issues to those
who seek help through its website. In case of
complicated tax matters, we ask the person to
send documents or come and meet us personally to discuss the matter. Our wide experience
helps in providing the right guidance to tax
payers. We started in 2013 and we are happy
with the work we are doing.
POWERFUL POST
Chandra, in his long stint in the tax department, handled several politically sensitive cases
involving former chief ministers Madhu Koda
(Jharkhand), Mayawati (Uttar Pradesh) and
Sheila Dikshit (Delhi, in the CWG case).
However, the high point of his career
remains the massive tax raids conducted on the
houses and offices of Koda in 2009, when
Chandra was member, investigation, in CBDT.
Koda and his associates were accused of swindling `2,000 crore of public money.
The low point was his poor handling

of Mayawatis Disproportionate Assets
(DA) case in 2010. As reported in The
Indian Express in March 2013, his wife,
Renu Chandra, allegedly benefited from a
land deal with the Noida Authority during Mayawatis tenure, believed to be
worth `20 crore. It was alleged that the
authority illegally helped Renu in settling the land deal in her favor in 2010 when
Chandra was handling Mayawatis DA case. It
claimed that Chandra as member, investigation, CBDT, directly handled the ex-CMs case.
Based on his departments clean chit to
Mayawati, the SC, which was monitoring the
probe, dropped the DA case in July 2012.
However, Chandra had clarified that the Noida
authority's decision was not a favor but a genuine settlement as per due process of the law.
In June 2011, Chandra was again in the
news when several media reports alleged that
the office of then finance minister, Pranab
Mukherjee, in South block was bugged. In a
June 26, 2011, report, PTI claimed that the
Intelligence Bureau, probing the bugging
incident, had questioned Chandra for calling
private sleuths to sweep the FMs office and
not the governments counter-intelligence unit.
Chandra, incidentally, shared a close relationship with his then boss Mukherjee.
WIDE EXPERIENCE
Then, there is Ashok Kacker, who took voluntary retirement in 2007 when he was chief
commissioner of Income Tax. He now runs a
tax consultancy firm called AK Advisors and
Consultants and is much sought-after for his
extensive experience in public administration,
finance, international taxations, mergers and
acquisitions, capital and financial markets, val-
uation and assessments and financial

markets. He is also group president with
Indiabulls Group and holds directorships
in India Bulls Asset Management Co. Ltd,
Indiabulls Industrial Infrastructure
Limited, Indiabulls Venture Capital
Management Company Limited, Salins
Commodities Private Limited, Golden
Green Golf and Resorts Limited and
Inventive Green Technology Solutions Private
Limited. He was previously director of Max
India Limited and Satyam Computer Services
Limited and was executive director of
Securities and Exchange Board of India. He
also serves as member, Global Advisory Board
of Arshiya Ltd.
Another retired IRS officer, G Anantharaman, is now special advisor to the chairman
of Tata Realty and Infrastructure Limited. He
retired as Chief Commissioner of Income Tax,
Mumbai, in June 2004. His profile on the companys website claims that he has handled several tax fraud cases and matters relating to tax
administration. He was also instrumental in
developing the Anti-Money Laundering draft
provisions in 1995-96. On retiring, he joined
the Securities and Exchange Board of India
(SEBI) as whole-time member in charge of
surveillance, investigations and market regulations. He continued to occupy the position till
March 13, 2008.
As reported in India Legal s March 31 issue,
retired bureaucrats are seen as prized commodities because of their network and
experience. They help corporate and individuals cut through the bureaucratic maze.
However, this mutual symbiotic relationship
starts when the bureaucrat is in service and is
cultivated by businessmen. Post retirement,
they take up lucrative jobs in those companies
or float another one to carry on

their job.
LURED BY PSUS
But it is not only corporates which lure these
babus. The taxmen also grab posts as directors
and board members in government-controlled
organizations. For example, Deepak Amitabh,
an ex-IRS officer who is presently CMD of PTC
India Ltd, the leading provider of power trading solutions in India and established in 1999
as a Public-Private Partnership.
These babus are also sought-after to fill the
mandatory requirement in government-owned
and private companies of having independent
directors on board. They play an important
role as they act as checks and balances in running a companys affairs and are also preferred
for their personal equations more than their
domain experience.
Take former coal secretaries Alok Perti and
C Balakrishnan. They are serving as independent directors in Coal India. Balakrishnan is also
a director in Neyveli Lignite, another PSU that
he handled as coal secretary.
Then, there are former railway officers
Sudhir Mathur and Pradeep Bhatnagar, who
are on the board of Concor, a public sector entity under the Indian Railways.
Quite a happy situation, that. IL
IN HIGH POSITIONS
(L-R) Former coal
secretaries, Alok Perti
and C Balakrishnan,
are serving as
independent directors
in Coal India;
Retired IRS officer
G Anantharaman is a
special advisor to
the chairman of
Tata Realty and
Infrastructure Limited
43
POLITICS/ AAP/Gajendra Singhs Death
Photos: UNI
Double trouble?
Will the death of this farmer lead to trouble for the AAP leadership? What
are the implications if his death is confirmed as suicide?
By Shailendra Singh
FERTILE LAND
FOR POLITICS
The AAP rally,
where the tragedy
took place, was
meant to criticize
BJPs land
acquisition bill
44
May 15, 2015
HE death of Rajasthan farmer

Gajendra Singh during an AAP
rally has put its leadership in a
tight spot as various accusations
are flying fast and thick over it.
While other political parties have blamed the
AAP leadership for continuing with their
speeches even as Singh was found hanging
from a tree, his family has asked for a CBI
inquiry into the incident.
On the face of it, reports allege that there
was laxity on the part of AAP workers. A

police officer who was on duty at the rally
venue, alleged that when AAP leaders were
delivering speeches, he saw some people
looking up at a tree and clapping. A man was
perched on the tree, waiving a broom. He
informed the control room and asked AAP
workers and others not to instigate him and
help bring him down. But no one cooperated
and eventually, the man was found hanging
from the tree.
If indeed the man was instigated to

commit suicide, it falls within the ambit
of Section 306 of the IPC, which provides
punishment for abetment of suicide. This
Section states: If any person commits
suicide, whoever abets the commission of
such suicide, shall be punished with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine.
THE RULE BOOK
The police, it claims, also requested party
workers not to climb the tree and to wait
for the fire brigade to arrive. Again, no
one paid heed and people climbed the
tree, leading the man to fall to the
ground. This could invite Section 186 of
the IPC, which, read with Section 34 says
that whoever voluntarily obstructs any
public servant in the discharge of his
public functions, shall be punished with
imprisonment of either description for a
term which may extend to three months,
or with fine which may extend to five
hundred rupees, or with both.
If Gajendra has indeed committed
suicide like many others, the question to be
asked is: Why do they do it? In 2012, the
National Crime Records Bureau (NCRB)
reported 13,754 farmer suicides. But the
highest number of farmer suicides was in
2004 when it was 18,241. Farmer suicide rate
in India has ranged between 1.4 to 1.8 per
1,00,000 population over a 10-year period
starting 2005. According to NCRB , 46 farmers commit suicide every day in India. From
1995 till 2013, 2,96,438 farmers had killed
themselves in India.
Acting on a PIL last year, the Supreme
Court asked the center to take steps to prevent increasing farmer suicides across the
country. The PIL also sought the apex courts
direction to the center to implement the recommendations of a report by the National
Commission on Farmers, chaired by agriculture scientist MS Swaminathan in 2006 on
farmer suicides.
PETITION ON SUICIDES
Citing various problems faced by farmers
which compel them to take their life, the
petition stated:
Farmers are forced to buy seeds every
planting season, which increases poverty and
indebtedness, compelling them to commit
suicide.
Interest rate at which loans are given to
the farmers is very high and they are not able
to repay the same. As per the report, it should
not be more than 4 percent. It also said that
farmers do not know how to cope with the
changing economy and need counseling from
the government or society to survive it.
Absence of counseling from the government or society on how to survive changing
economy is also a reason for their suicides.
There is no crop insurance and rural infrastructure is poor, particularly when it comes
to harvest technology. Youth in villages are
reluctant to continue with their ancestral
occupation of agriculture because of the costrisk-return structure.
While it is still not clear whether Gajendra Singhs death was a planned stunt or a
deliberate suicide attempt, the blame-game
has already begun. IL
DEATH ON
CAMERA
Gajendra Singh
died even as
attention was
focussed on him
If indeed
Gajendra Singh
was instigated to
commit suicide,
it falls within the
ambit of Section
306 of the IPC,
which provides
punishment for
abetment of
suicide.
45
PROFILE/ Devendra Fadnavis
Maharashtras Lone Ranger

As BJP chief minister of this large state, he
has been a disappointment. Perceived as a
puppet of Modi and Amit Shah, his inertia
and lack of tact have not gone down well
By Neeta Kolhatkar
HEN Prime Minister

Narendra Modi and BJP
president Amit Shah
chose Devendra Fadnavis over three other
leadersEknath Khadse, Sudhir Mungatiwar and Vinod Tawdeas Maharashtra
chief minister, there were high expectations
from this young and dynamic leader, as
national dailies described him.
He evoked interest. After all, he was a
politician with no mass support and had broken many rules, chiefly the dominance of the
Maratha caste. He was originally from
Vidarbha, a backward and ignored region of
Maharashtra and known mainly for farmers
suicides. Vidarbha, till now, had no representation in state politics. Most of all, unlike
Pramod Mahajan and Gopinath Munde,
Fadnavis was not considered close to the Shiv
Sena, BJPs ally.
DYNAMIC LEADER
Here was a man who, as opposition leader,
had made all the right noises in the
Maharashtra assembly and had begun to be
perceived as a man who stood for ideals.
Among the pertinent issues that he had
raised, were studied allegations on the irrigation scam, Adarsh scam and farmers suicides, and of the Congress-NCP-led government being run by thugs. All these had got
him headlines.
Today, this same man, as chief minister, is
being accused of standing for the ideals of his
bosses, behaving like a lone ranger and leaving out important leaders from his own
party. He has not been a team person from
the beginning; he was always a lone ranger.
Yes, he is intelligent, does a thorough study,
but as an office bearer of the BJP, he is there
only for names sake, says a senior BJP
leader on condition of anonymity.
When Fadnavis took over as CM, expecta-
46
May 15, 2015
A YES MINISTER
(L-R) Devendra Fadnavis
with his political bosses
Narendra Modi and
Amit Shah
tions were high as corporates and industries

felt that he would bring about a change in the
working environment of the state.
However, after the initial noises, Fadnavis
has been unable to deal with the repercussions of some tough policy decisions. These
are the river regulation zone policy, compensation for farmers and a development plan
for Mumbai.
It is evident that decisions are being
taken on his behalf. Fadnavis should have
been more aggressive in demanding higher
compensation for the affected farmers. He
claims to have been informed (of issues), but
we would expect him to decide too, says
Clyde Crasto, spokesperson for the NCP.
Arvind Sawant, an MP from the Shiv
Sena, too does not mince words. We are
hopeful that Fadnavis will be more proactive
in taking decisions for housing the poor,
coastal roads and development of Mumbai,
he says.
TOO PLIANT
The general opinion among politicians about
Fadnavis is that he is a puppet CM for his two
bosses, Modi and Shah. During the UPA
tenure, the government had taken a decision
to set up an international financial centre in
Mumbai. Modi decided to shift it to Gujarat.
All that our CM has done is to allow himself
to be used as a puppet by Modi, the BJP and
He has not been a team person; he was

always a lone ranger... As an office bearer
of the BJP, he is there only for names
sake.
A senior BJP leader
the RSS, says Mumbai Regional Congress
Committee president Sanjay Nirupam.
Ever since he took over, Fadnavis has got
himself cornered over taking support from
the NCP, which Modi had called as the naturally corrupt party. The first instance was
getting through the vote of confidence with
the help of the NCP. And just last week in the
first Budget Session, the BJP along with the
NCP passed a no-confidence motion against
Maharashtra Legislative Council chairman
Shivajirao Deshmukh and supported NCP
candidate Ramraje Nimbalkar.
The NCP has little to lose and Crasto nonchalantly says: We stand by the commitment made to our national president Sharad
Pawar that we will support the BJP. We will
give full and unconditional support to the
government from outside.
As for the Shiv Sena, the BJP, through
Fadnavis ensured that it is kept on its toes.
The Sena was integrated into the government after the controversial vote of confidence. However, since then, the relationship
between the allies has been far from corINDIA LEGAL May 15, 2015
47
PROFILE/ Devendra Fadnavis
IMPATIENT
OPPOSITION
(L-R) Congress leader
Sanjay Nirupam, NCP
leader Ajit Pawar and
Shiv Sena leader
Uddhav Thackeray are
questioning Fadnaviss
leadership mettle
What is
uppermost in
peoples minds
is whether
Fadnavis is
capable of
taking
decisions
independently
and what the
hidden agenda
of his
government is.
48
May 15, 2015
dial. The Sena is being kept out of key decisions and is not consulted even for changes in
the city. Time and again, Uddhav Thackeray
speaks against Fadnavis and Modi.
Senior BJP leaders say Fadnavis lacks
political tact and gets little support from
within or outside the party. As an opposition
party, it suits us if both parties fight against
each other. Of course, we will work it to our
advantage, says Hussain Dalwai, Congress
MP. Sena leaders do not refute the fact that
they are exerting pressure on the Fadnavis
government with the help of the opposition.
When asked about this, Sawant replies: No
comments.
NO POLITICAL TACT
Dalwai criticises Fadnavis for taking direct
orders from his bosses to join hands with the
NCP, despite public perception. All decisions
are being made at the center. This is evident
from the fact that Fadnavis has been asked to
ignore the Sena and take help from the NCP.
I am confident that had Nitin Gadkari or
Gopinath Munde been the chief minister,
they would have treated the Sena
respectably, says Dalwai.
Fadnavis has also come under criticism
for the 40 percent rise in farmers suicides,
not pushing for a higher compensation for
the affected farmers and the killing of
Communist leader, Govind Pansare. This is
the second consecutive year that the state has

been hit by unseasonal rains and hailstorms.
The Sena has not spared Fadnavis, with
Uddhav Thackeray being the first to slam
him, saying that except for the CM, nothing
has changed.
Even though Fadnavis has announced a
`7,000-crore package for debt-hit farmers,
the opposition (Congress and NCP) says this
is insufficient. We were accused of being
corrupt even though during our government,
we dealt with disasters sensitively and decisively. We would ensure a team from Delhi
was sent immediately to the affected areas
and the center would allocate timely and sufficient funds, claims Ajit Pawar, NCP leader.
This insensitive CM has not issued a government resolution and his orders are not being
implemented. It shows that he is unable to
take any decision independently. The farmers
have also been given lower prices for their
output and the government is apathetic in its
approach, Pawar says. He was one of the
prime targets of Fadnavis, who named him in
the irrigation scam.
What is uppermost in peoples minds is
whether Fadnavis is capable of taking decisions independently and what the hidden
agenda of his government is. Fadnavis has
exposed the hidden agenda of the RSS. It is
sad that this government is anti a particular
community, says Sanjay Nirupam. IL
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Shobhaa De
STATES/ Bihar/Assembly Elections
The Battle for

PATLIPUTRA
The formation of the
Janata Parivar has
brought about a churning
in the states political
waters. A lot depends on
the polls this year to see
which way the tide will flow
By Mantosh Sharma
HE lessons of Chanakya
have not been lost on
Bihars politicians. The
philosopher learnt his
winning strategy from a
mother who was teaching
her child not to eat a bowl
of hot porridge from the center. Instead, she
said it should be eaten from the periphery
where the porridge was cold. Chanakya
implemented this lesson to defeat the Nanda
empire by winning and segregating peripheral areas before attacking Magadh. And what
we see today in Bihars politics is a glimpse of
this same peripheral politics, where alliances
are being made, existing coalitions are being
poached and a bipolar political axis is being
created as the state goes to polls this year.
The first noticeable example of peripheral
politics is the recent amalgamation of six
political parties from different states to form
a Janata Parivar. Although it seems like the
combined group will be a role player in Bihar
NO CAKEWALK
The Nitish-Laloo
combine will have
to guard against
the Mahadalit
card played by
the opposition in
the coming polls
Photos: UNI
50
May 15, 2015
politics, there is no significant value add-on

to the existing vote share that the Janata DalRashtriya Janata Dal-Congress combine has
in Bihar. In the last by-election, this combination had secured 46 percent vote share and
won six out of ten Vidhan Sabha seats. Other
non-Bihari parties in the Janata Parivar are
non-existent in Bihar.
here could be several factors that led

to the merger. One, the smaller political parties are eyeing the success of
perception politics. It is politically imperative
to appear big to counter the BJP so that the
minority votes can consolidate under one
political force. Two, with the demise of the
Congress in north India, there is a vacuum
and thus the rush to capture middle or center
politics. Three, the BJP itself playing mandal kamandal and aspirational politics in
different states has baffled niche political
players like Deve Gowda, Om Prakash
Chautala and Laloo Prasad Yadav. It is not
easy for them to consolidate their winning
votes share with their traditional social engineering politics.
Lets analyze the real players and parties
which will matter the most in 2015 elections.
Jitan Ram Manjhi, the former chief minister of Biharwho became the center of
Battle 2015 in Bihar is likely to be fought

on two fronts. One is traditional, based on
caste, religion and fear. The other is voting
only for aspirations and a growth dream.
mobilization through his astute politics
allowed himself to appear as a puppet and
was chosen chief minister because of his seniority, low-profile Mahadalit image and loyalty to Nitish Kumar, the JD (U) leader. His
non-threatening image was instrumental in
Nitish handing over power to him so that his
agenda could be pursued. After taking oath,
Manjhi said: Our aim would be to complete
the unfinished works. We would work hard
for the development of the state.
However, it didnt quite turn out like that.
Instead, during his chief ministership, Manjhi meticulously worked to build himself as a
Mahadalit leader. He thus created a groundswell of support for himself, luring the BJP
towards himself and trying to politically
damage the JD (U). He had left the door
open for future alliances by saying: I am a
man with independent thinking. Ill walk on
the path laid down by myself but take assistance of parties who join me on this path, be
it the BJP or even Nitish Kumar.
BULWARK
AGAINST
THE BJP?
Leaders of the
Janata Parivar
(from left) Nitish
Kumar, Laloo
Prasad Yadav,
Deve Gowda,
Sharad Yadav and
Mulayam Singh
51
STATES/ Bihar/Assembly Elections
A BOND TO
LEVERAGE
(Clockwise from
above) Mulayam and
Laoo have extended
their family relations
into politics by coming
under one banner;
Sushil Kumar Modi and
CP Thakur of the BJPs
Bihar unit
52
May 15, 2015
He resigned as chief minister on February

20, and Nitish replaced him on February 22.
In a trust-vote on March 11, Nitish won comfortably, with 140 votes in favor in the 233member Bihar assembly. Manjhi abstained
from voting and the rebel JD (U) leaders
ended up supporting Nitish due to fear of
disqualification.
anjhi, however, cannot be discounted as he commands the

respect
and
sympathy
of
Mahadalits, who have more than 20 subcastes. Historically, this community was a
part of the Dalit vote bank and has been
poached by various political parties. Bihar
also has left and ultra-left entities, and a
majority of their vote bank is from the Dalit
population. However, associating with Pappu

Yadav and Sadhu Yadav, both RJD politicians, will limit him in getting votes.
Inadvertently, he will end up importing
Laloos negativity through them.
Last, but not the least, Manjhi will struggle to establish a viable political party. His
recent launch of Hindustani Awami Morcha
(HAM) will help him align with a larger
political entity and bargain for seats.
The BJP, meanwhile, supported Manjhi
in an effort to isolate Nitish and created quite
a strain. Comments by its state leaders have
indicated that its unit will play identity politics. Sushil Kumar Modi, the leader of the
state BJP, said that his MLAs felt this would
be a revenge for insulting a Mahadalit by
Kumar. Similarly Nand Kishore Yadav, the
BJP leader of the opposition in the state,
pitching for Dalit votes said: The Dalit community is feeling cheated by Nitish. They are
completely disillusioned with him.
By playing hard on Mahadalit issues, the
state unit of the BJP has left out the growth
message of Prime Minister Narendra Modi.
This may well be hijacked by Nitish before
the assembly elections. The BJP should have
waited a little longer instead of exposing its
Dalit strategy and giving enough time to the
Nitish-Laloo combination to adjust and consolidate. Whats more, the BJP state leadership has no stalwarts like Vasundhara Raje or
Raman Singh, who can pull the party to victory on their own political stature.
Sushil Kumar Modi, as deputy chief minister in the JD (U)-BJP government, was, till
recently, Nitishs man in the saffron party.
Upper caste state leaders like Shatrughan
Sinha and CP Thakur do not get along with
Sushil. In this state of affairs, identity politics
is counterproductive and could backfire, if
pursued in public discourse. To top it all, the
BJP became instrumental in cementing the
bond between Laloo and Nitish. Alliances
which were supposed to be a matter of convenience became a matter of compulsion to
carve out an anti-Narendra Modi space.
egardless of this, the BJP has a strong

partner if the HAM forms an alliance
with it. It will translate into significant vote share. This combination will help
the BJP fill seats which were given to the
JD (U) in earlier elections. The alliance will
fill the gap in the Mahadalit camp as far as its
social engineering strategy for Bihar is concerned. The BJP has existing alliances with
Ram Vilas Paswan, president of the Lok
Janshakti Party, and Upendra Kushwaha,
leader of the Rashtriya Lok Samata Party,
since the 2014 parliamentary elections.
Coming to Nitish, he is an experienced
politician with a broad support base. He is a
product of the JP movement, defeated the
Laloo-Rabri rule nine years ago, and has a
legacy of governance, which saw Bihar making rapid economic strides, with remarkable
improvement in roads, administration and
law and order. Bihars economy grew at 14
percent from 2006 to 2014.
The credit for Nitishs winning the trust
vote should go to Manjhi and the BJP, as he
captured the anti-BJP space in Bihar. Parties
opposing the BJP rallied around him.

Political pundits say this combination has the
potential to garner 35 percent vote share in
the Bihar elections.
There are likely to be two frontlines in this
battle. First, will be the traditional battleline,
including caste, religion and fear. While the
BJP-Manjhi alliance will talk about 15 years
of Laloo misrule and Nitishs insult to
Manjhi, the Nitish-Laloo alliance will campaign against the RSS-VHP combine and the
incompetency of Manjhi. Amit Shah, Laloo,
Sushil Modi, Manjhi and Paswan may fight
at this frontline. The second frontline will be
about aspirations and whether the voters will
rise above traditional voting pattern, as seen
in the 2014 Lok Sabha polls. This frontline
will witness a political battle exclusively
between Nitish and Modi. And the battle
between the BJP and Nitish will have these
aspirations riding on it. Its likely that a dark
horse will emerge and swing votes. IL
STRATEGIC TIES
(Clockwise from top left)
Ram Vilas Paswans
support will help the
BJP in Bihar; former
Bihar CM Jagannath
Mishra with Jitan Ram
Manjhi; rivals Modi and
Nitish
53
CORPORATE/ Taj Mahal Hotel
Biased Business?
EFFORT UNDONE
IHCL, which built and ran
Hotel Taj Mansingh, now
loses rights over it
Why did an MHA

bureaucrat not extend
the lease of this
reputed hotel to Indian
Hotels, especially
when the JV between
it and NDMC followed
all proper norms?
By Puran Chand Tamta
54
May 15, 2015
famous proverb says: If it aint broke, dont fix

it. But if the bureaucracy has its way, it would
break the best to fit in with its plans. Something
similar is being witnessed in the case of Taj Majal
Hotel (Taj Mansingh) in New Delhi.
Keshav Kumar Pathak, joint secretary in the Ministry of
Home Affairs (MHA), has issued directions that Indian Hotels
Co Ltd (IHCL) cease operating Taj Mahal Hotel. But this goes
against its legal rights for extension.
Taj Mahal Hotel was a unique joint venture (JV) between
New Delhi Municipal Council (NDMC) and IHCL, with NDMC
providing 3.78 acres and funding the construction. IHCL did
the construction and also provided equipment, furniture, fixtures and all other assets at its own cost. Right from the time
NDMC conceived this project, it was put on record that it would
be a JV. This is evident from NDMCs Resolution No 35, dated
AT THE HELM OF THE

DECISION
(L-R) Sushil Kumar Shinde
was the Minister for Home
Affairs when the
unfavorable ministry
directives came;
Joint Secretary KK Pathak
dismissed IHCLs Right of
First Refusal
April 2, 1976, wherein it accepted joint participation in construction and running of the
hotel by IHCL.
here were two agreements between

NDMC and IHCLa collaboration
agreement for construction of the
hotel and a license deed under which IHCL
would run and operate it. Under the license
deed, IHCL was obligated to pay NDMC a
license fee every year. This was paid regularly. The initial term of the license deed was for
33 years, which expired on October 10, 2011.
However, the license deed provides for an
extension and when IHCL sought it, NDMC
constituted a committee to consider this
request. Simultaneously, NDMC sought the
opinion of its standing counsel, who held
that the license vested a contractual right
with IHCL to seek extension. The committee
also recommended further extension for 30
years on revised commercial terms. On
November 14, 2011, the Ministry of Urban
Development (MUD) reviewed the matter
and recorded that NDMC should try to get as
close to the market rent for the hotel as possible, even if it had to negotiate with IHCL.
NDMC even appointed a consultant
(Ernst & Young) to advice them on this issue.
Its report said that the municipal council
could re-negotiate the terms and it would
gain the most if the agreement with IHCL
was renegotiated and extended.
This matter was also presented to the

present attorney general of India who, as per
media reports in September 2014, endorsed
the legal opinion given by the erstwhile solicitor general of India that extension of license
by mutual negotiations with IHCL was the
best option available to NDMC.
One would have thought that the matter
ended there. But surprisingly, as per file notings, directions were issued by MHA (then
under Sushil Kumar Shinde and under which
NDMC comes), which put a spanner in the
works. The directions came from Dr KK
Pathak. This was strange considering neither
were involved in the matter.
The letter to NDMC stated that the hotel
should be auctioned and that the Right of
First Refusal (ROFR) should not be granted
to Taj. Further, this letter was followed by a
show-cause notice to NDMC to further
enforce this decision.
It is strange why Pathak enforced this
decision when legal luminaries and financial
consultants had recommended that the
IHCL license agreement should be renewed
with revised terms and conditions. And why
is the same policy being followed by other
officials in the MHA?
And why this bias against Taj Mahal
Hotel, when the MUD had granted license
agreement extensions to Taj Palace Hotel and
the MHA to Hotel Lalit. Could someone
answer these valid questions? IL
The attorney
general of
India, as well
as experts
hired as
consultants,
advised
NDMC to
renegotiate
the contract.
But the MHA
officials have
taken just the
opposite
stance.
55
ACTS & BILLS/ Companies Act 2013/Clamor for Amendments
BE THE
CHANGE YOU
WISH TO SEE
FLIGHT OF
BUSINESS
International
players like Nokia
have shut shop
and are relocating
to better business
climes abroad
56
May 15, 2015
T was more than apparent in the last ten

months that companies were not growing
the way it was expected after Modi came to
power. He rode on a popular mandate that
wanted the economy to once again grow, create jobs, open up new business opportunities
and cut red tape for industrial growth.
Instead, there has been a flight of capital out of India,
with leading entrepreneurs investing abroad to escape
punishing tax laws. Even international players like
Nokia have shut shop and are relocating to better business climes abroad.
With its sizeable canvass and reach, the Companies
Act 2013, brought in by the erstwhile UPA government,
was supposed to be designed to change the way companies operate as far as governance, management, auditing, disclosures and transparency were considered. The
larger idea was to regulate the responsibilities of the
company and its directors, and rules about dissolution
This could well be the

advice that Indian
industry wants to tell
the Modi government
as cumbersome
procedures and rules
are hampering growth
By Ramesh Menon
and so on. Some provisions of this Act have

done away with exemptions available under
Companies Act 1956 for private limited companies. Though this is a positive move, more
needs to be done, say industry sources, to
make it easy to do business, as the investment scenario can only improve through
simplification of procedures and regulations.
FINETUNE ACT
Chandrajit Banerjee, Director-General,
Confederation of Indian Industry (CII) felt
the 2013 Act prescribed adequate disclosures
to pre-empt and weed out frauds, collusion,
corruption and other misdemeanors, obviat-
ing the need to follow a stringent approach.

However, industry circles feel that a lot needs
to be done to finetune the Act. They want
numerous changes in the Act because there
are many clauses which are restrictive for
business, trade and commerce. The industry
has been saying for long that the government
needs to make it easier to do business in
India and not create impediments, complicated laws and procedures. In fact, the World
Banks Ease of Doing Business-2015 ranks
India 142nd against 189 nations.
The numerous complicated restrictions
and strictures in the Act are contrary to
Modis slogan of Minimum Government and
SHOWCASING INDIA
Prime Minister Narendra Modi
at a meeting with French
CEOs on Infrastructure in Paris
in April
57
ACTS & BILLS/ Companies Act 2013/Clamor for Amendments
CLAMOR FOR
CHANGE
(From left) B Prasada
Rao, Managing Director,
Bharat Heavy Electrical
Limited; Adi Godrej,
chairman, Godrej Group
Maximum Governance.
There were numerous industry concerns
about how the 2013 Act had numerous cumbersome procedural requirements related to
private companies and closely-held unlisted
public companies. It related to transactions;
corporate social responsibility; amounts
treated as deposits; loans to employees; criminalization of offences; certification of internal financial controls; consolidation of
accounts; cost accounting and audit; alignment with SEBI regulations and so on. One
of the changes wanted was companies needing the consent of 50 percent of the minority
shareholders present.
SIMPLIFY PROCEDURES
As provisions of the Act have a huge impact
on corporate functioning, it must ultimately
end up boosting business and not be an
impediment. Industry captains want private
companies to be exempted from filing of
board resolutions, disclosures in board
reports and consolidation of financial statements. They want simplified procedures to
carry out corporate social responsibility projects and want a say in what kind of projects
they should do.
They are against cumbersome procedural
requirements for private companies like
making a detailed offer letter with elaborate
disclosures in connection with preferential
58
May 15, 2015
allotment by way of private

placement. They also want simplification of annual tax return
forms. Under the 2013 Act,
loans to directors are banned.
However, industry sources feel
that due to business exigencies,
private companies might want
these loans to be given.
According to present rules, if
a shareholder has more than ten
per cent of the share, he can stop
or disallow the company from
taking a decision. This can be
crippling for companies.
One of the things industry
wants is to remove the restrictions on private companies from
taking deposits from relatives of
its directors or members. This
could hamper the functioning of numerous
private companies.
Another is changing the limit of remuneration for its directors and managers. The Act
specifies that it shall not exceed 11 percent
of the net profits of the company in a financial year.
A company cannot take money from their
shareholders or directors and if they are
securing funds, they must make the depositors aware of the financial position of the
company, credit rating it has, previous
deposits it has taken and also put aside a sum
which is not less than 15 percent of the
amounts of its maturing deposits as a kind of
security for repayments when they arise.
The Act said that if a private company had
to hold a general body meeting, it had to give
a notice of 21 days and any decision taken
would have to get the approval of 95 percent
of shareholders. But industry sources say that
getting such a huge percentage to agree on
something is almost impossible.
RESTRICTIONS ON AUDITORS
Appointing auditors is another sticky issue as
the Act has numerous restrictions. He cannot
be an employee of the company, cannot be
employed by an officer of the company, cannot be a partner of the company, cannot be
directly or indirectly associated with the
company in a business relationship or be
convicted in a fraud that is less than ten years

old. The industry wants the government to
relax the rules for appointment of auditors
for private companies.
Under the Act, property of the company
cannot be sold or leased unless approved by
the Board of Directors. The company also
cannot borrow more than the paid-up capital
invested. How, then, can companies grow?
The present Act also says that whole-time
or part-time directors cannot be appointed
for more than five years. If they are above the
age of 70, cumbersome explanations have to
be given. A person in the key position of one
company cannot be in the key position of
another company.
Similarly, one cannot be a director in two
companies. If the rules are violated, the company will have to pay a fine of `1 lakh a year
and a fine of `1,000 per day till it is rectified.
The industry wants these rules to be relaxed.
Industry sources say that private companies have to be exempted from costly and
cumbersome filing of board resolutions with
the Registrar of Companies.
CRIMINAL INVESTIGATION
One source pointed out to India Legal that if
there was a criminal investigation by the CBI,
it would forward it to the Enforcement Directorate, Ministry of Corporate Affairs and the
Income Tax department. Even if the CBI
wound up the investigation giving a clean
chit to the party as it found nothing incriminating, the other branches would continue
investigating leading to unnecessary harassment and trauma.
CII flagged some issues for the government to look at and bring in changes as it was
causing concern:
Clarification on the status of private company being a subsidiary of a foreign company
Treating directors of public companies as a
related party
Pecuniary transactions or relationships for
determining the status of a director with reference to his independence
Payment of remuneration to an independent director of the holding company by a
subsidiary
Saving provisions in respect of the existing
equity shares with differential rights
There are concerns as to the potential misuse of some of the

liberalized provisions. Of particular interest is the obligation of
the auditor under the proposed amendment to Section 143 (12)
to report fraud to the central government only when it is above a
particular threshold. Smaller frauds would be reported only to
the audit committee which in turn, would be disclosed in the
boards report. A series of smaller counts of fraud may therefore
go unreported. Perhaps the inclusion of a basket provision,
wherein the quantum of multiple counts of fraud are in excess of
a particular amount over a specified period of time are also
reported, could potentially resolve this issue.
Arjya B Majumdar, director, Michigan-Jindal Centre for Global
Corporate and Financial Law and Policy,
Jindal Global Law School
Transition period for undertaking deposit
insurance
Adi Godrej, chairman, Godrej Group,
feels that the government will have to ensure
that corporate functioning is not hampered.
The Companies Act 2013 has made it very
challenging for directors of companies. Too
many requirements, certifications and
responsibilities have been cast on them making it practically difficult to fulfill them.
Act mandates that directors shall declare
that the company has devised systems to
ensure compliance with multiple laws
expecting companies to disclose all non-compliances across the globe. This is humongous
and does not provide information which is
meaningful or useful. Non-compliance or
violation under each law needs to be dealt
with under respective laws and not under the
Companies Act, Godrej said.
B Prasada Rao, managing director,
Bharat Heavy Electrical Limited, is of the
view that compliances under the Act have
put responsibilities and liabilities on the
board of public sector units for protection of
all stakeholders, ensuring sustainable practices and overall corporate governance across
the company.
The government will do well to speedily
bring in amendments and create a climate
for business to flourish and also ensure that
there is a fair amount of checks and balances
to stop misuse and fraud. It remains to be
seen how long the government will take to
act on these concerns. IL
59
ACTS & BILLS/ Juvenile Justice Amendment Bill, 2014
No childs play
G
IVEN the spate of heinous

crimes committed by juveniles under 18 years of age,
there has been growing clamor for treating and trying
them as adults in a court of law. After much
debating, and despite serious objections
raised by child rights activists and a parliamentary standing committee on this issue,
the Union cabinet has seen merit in bringing
about the necessary changes in the law.
The December 16, 2012 gang rape and
subsequent death of Nirbhaya changed the
way Indians perceived juveniles accused of
60
May 15, 2015
violent crimes. It also triggered a review of

the juvenile justice system in India that does
not permit detention beyond three years,
irrespective of the gravity of the crime.
The Delhi Police, in its 33-page chargesheet, described the juvenile, one among six
who raped 23-year-old Nirbhaya on a cold
December night, as the most brutal of the lot.
It was he who assaulted her with a rod,
resulting in an injury which led to her death.
On August 31, 2013, he was convicted of rape
and murder and sentenced to three years
imprisonment in a reform facility.
Although petitions from Nirbhayas par-
A working system of treatment and

rehabilitation has shown better results.
UNICEF country representative, Louis-Georges
Arsenault, on why transfer of juvenile cases to
adult courts has not led to reduction in crime
his actions. Nonetheless, the subsequent
debate over Indias juvenile law has brought
about some welcome changes.
According to the Juvenile Justice (Care
and Protection of Children) Act, 2000, no
child below 18 years can be tried in an adult
court, howsoever heinous or grave the crime
he committed. The act sets up a Juvenile
Justice Board, which may hold an inquiry of
the juvenile and pass a reformatory order if
he is found guilty. Following the Nirbhaya
case, there were calls for lowering the age of
juveniles or moving them to the adult criminal justice system.
Illustration: Anthony Lawrence
The recent Union cabinet

nod to changes in the
juvenile justice act is a
much-needed reform
and will treat juveniles
committing heinous
crimes at par with adults
By Rajendran Nair
Karakulam
ents and then Janata Party president
Subramanian Swamy sought trial of the juvenile in an adult court, it was rejected.
The current juvenile law faces wide opposition, as it seems to provide a concession to
criminals on the basis of their age. This is to
give an opportunity to a juvenile offender to
reform, while holding him accountable for
TIMELY AMENDMENT
However, in the budget session of parliament, Union Minister for Women and Child
Development Maneka Gandhi introduced
the Juvenile Justice Amendment Bill, 2014,
in the Lok Sabha, thereby repealing the 2000
act. Sections 16 and Section 19 (3) of the bill
empower the Juvenile Justice Board to determine whether a juvenile above 16 years
should be sent to a reformatory home or be
tried in an adult court, to act as a safeguard
to juveniles. For this, there will be categorization of the crime as petty, serious and
heinous. The court, however, cannot sentence him to death or to life imprisonment.
The bill was referred to a standing committee. The panel, in its report released in
February this year, rejected the governments
proposals to prosecute adolescents below 18
years as adults. It contended that the move
was discriminatory, violated the provisions of
the UN Rights of Child and was in contravention of Article 14 of the constitution.
Prime Minister Modi placed the matter in
front of a Group of Ministers in early April to
confabulate and delve into areas of concern
raised by the standing committee. After the
GoM had examined the issue, the Union
61
ACTS & BILLS/ Juvenile Justice Amendment Bill, 2014
juveniles as the accused.

However, there has been great
opposition from jurists, activists
and international organizations.
Many call it a knee-jerk move
by the government and consider
juveniles to be the scapegoats of
public outrage due to increasing
offenses
against
woman.
UNICEF said the governments
move was a step back and its
country representative, LouisGeorges Arsenault, said that
transfer of juvenile cases to adult
courts, across the world, has not
led to reduction in crime.
Instead, a working system of
treatment and rehabilitation has
shown better results, he said.
Activists like Bharti Ali,
Ranjana Kumari and Ananth
Kumar Asthana too believe that
sending juveniles to jail would
prove counter-productive.
The Juvenile Justice Amendment Bill, 2014,

empowers the Juvenile Justice Board to find
out if a juvenile above 16 years should be
sent to a reform home or tried in adult court.
AGE NO BAR
The juvenile in the rape
and murder of Nirbhaya in
December 2012
62
May 15, 2015
cabinet agreed to bring down the age at

which a person can be tried as an adult.
MIXED REACTIONS
All this while, there has been an impassioned
debate on this issue. India Legal, in its cover
story of August 31 issue (What is the Age of
innocence?) delved into this debate.
Senior advocates, such as KTS Tulsi, HS
Phoolka and Atul Mathur, chairman of the
Delhi Commission for Protection of Child
Rights, feel this will be an important step as
juveniles in conflict with the law will now
realize they will not be let off easily.
Former Chairperson of the National
Commission for Women, Mamata Sharma,
hailed the move to allow adult trial of such
juveniles. She described the amendment as a
necessary step, citing reports which show
that 45 percent of registered rape cases have
CARING FOR KIDS

The bill deals with two kinds of children:
those in conflict with law and those in need
of care and protection. While the amendments concerning the former have grabbed
the limelight, sweeping changes have also
been made as regards the rights of the latter.
Section 3 of the bill provides for certain
General Principles of Care and Protection of
Children, which incorporates internationally
accepted principles like presumption of
innocence, right to privacy and confidentiality, principle of best interest and fresh
start among others.
There are many reforms in the procedure
of rehabilitation of children in need of care
and protection. Section 45 of the bill introduces the idea of foster care in India, which
ensures that the child will be brought up in a
family environment without the parents having to adopt them.
So while child rights are being protected,
the law is also taking a stern view of juveniles
who commit horrendous crimes.
Justice, after all, is all about balance. IL
With inputs from India Legal team
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AVIATION/ Psychometric Tests
PLUMMETING
THE DEPTHS
The Germanwings air
crash has spurred
calls for psychometric
tests and psychological
examination of pilots.
Similar demands had
been raised after the
fatal Mangalore crash
too, but no one paid
heed then
By Shobha John
64
May 15, 2015
HE fatal crash of the A320 Germanwings plane in

the French Alps in March
has led to worldwide calls
for psychometric/psychological tests for pilots. The
crash, it is suspected, was
the handiwork of the flights co-pilot, who
was said to be suffering from depression. And
though he had passed the airlines medical
and psychological tests and was found to be
100 percent flight worthy without any limitations, it could not detect his mental illness.
Questions are, therefore, being raised
whether calls by the Indian government for
mandatory psychometric tests on pilots (or
does it actually mean psychological), are
indeed a good idea. Are these tests 100 percent reliable and is it worth the trouble for
airlines, already in the red, to have them as
part of mandatory requirements?
Experts reveal that after the Mangalore
crash in May 2010, the DGCA had issued an
advisory for airlines to employ aviation medicine specialists who could do aero medical
training of flight and cabin crew (see
http://dgca.nic.in/circular/general/gac01_
2011.pdf. However, since this was not
mandatory, most airlines didnt follow this
recommendation.
WEAKNESS IN AIRLINES
It is a fact that airlines and regulators are not
doing anything to address mental health
issues among flight crews.

This lack of systemic
screening for psychological
problems was seen as a
weakness
by
the
International Civil Aviation Organization (ICAO)
in 2012.
Incidentally, commercial pilots undergo regular
health check-ups every six
months at air force establishments. ICAO has mandated that it be conducted
by doctors trained in aviation medicine, who are
from the air force. Pilots
also have to undergo an
alcohol test prior to the
departure of every flight of
theirs. How-ever, psychometric tests for commercial pilots are not mandated by ICAO.
Some airlines use these
tests during pre-employment medical test, where
the ability, personality and
behaviour of the pilot are
assessed. But experts stress
that this one-time assessment may not be adequate
to monitor the mental state
of aviators. Psychological
evaluation is usually done
later on in a pilots career, but only if referred
by an aviation medicine specialist.
Emirates, one of the top airlines, requires
all pilots to undergo a regular medical assessment, which includes physical and psychological aspects. A spokesman told India
Legal: During the pilot recruitment process,
all candidates undergo physiological tests.
Our first officers are also mandated to undergo another additional round of psychological
testing for their promotion as a pilot.
An aviation medicine expert said on condition of anonymity: These tests are used to
identify emotional disorders and mental
health. Some psychometric tests help in
detecting underlying deep mental problems.
Usually, a battery of standardized tests
IN THE HOT SEAT

Mental balance and
compatibility between
the crew is important for
flight safety
Experts reveal
that after the
Mangalore crash,
the DGCA had
issued an
advisory for
airlines to employ
aviation medicine
specialists for its
crew. However,
airlines didnt
follow this
recommendation.
65
Forget tests, give

counselling to pilots
The recent demands for psychometric tests for pilots
may just open a can of worms for everyonethe
government, DGCA, airlines and of course, pilots.
CAPTAIN SHAKTI LUMBA, a veteran pilot who was
head of flight operations at IndiGo and Alliance Air,
tells SHOBHA JOHN why the government, instead of
over-reacting, should adopt a humane approach towards
those depressed
The government wants to make psychometric tests for
pilots compulsory. Is this a good idea?
There seems to be a lack of understanding as to what are psychometric, psychological and psychiatric tests and what they
determine. Pilots undergo psychometric tests conducted by airlines. What the government seems to have in mind are psychological and psychiatric tests. If so, then, these must be conducted by psychologists and psychiatrists who are experts at
predicting whether an individual is on a self-destructive path
like suicide, potential violent behavior or both. In the absence of
international norms, it would be anything but simple to implement such proposals and efforts to do so are likely to draw
resistance from employees and privacy and civil liberties advo-
comprising of objective and projective techniques is administered, and complete clinical

history and mental status examination is
done before diagnosing any psychopathology.
IAF TESTS
In the IAF, said the expert, psychometric
tests are used in conjunction with techniques to evaluate cases of pilots with head
injuries post ejection, low motivation to fly,
fear of flying, psychosomatic issues, air sickness,
adjustment
disorders,
etc.
Psychologists evaluate prospective officers
of all branches, including the flying branch,
during Air Force Selection Board interviews.
Flying branch candidates are also required to
pass a Pilot Aptitude Battery Test, which
assesses hand-eye coordination.
What is scary in the Germanwings crash
is that the co-pilot was a cheerful and careful
66
May 15, 2015
pilot. Though he had been treated for depression, he seemed fine. So when does depression, a normal phenomenon many people go
through, become severe mental illness? That,
indeed, is a thin line. But the signs of depression would be thereLack of interest in
activity and friends, insomnia, poor appetite,
poor posture and low volume of speech.
The mental make-up of pilots has increasingly come into focus (see box). Shockingly, a
study done by Dr Hatters Friedman and
Dr Chris Kenedi, a psychiatrist at Duke
University, found that of the 85 aircraft suicides from 1965 to present, 18 appeared to be
murder-suicides, 15 perpetrated by pilots.
Pilots are naturally wary of disclosing any
mental illness as it could jeopardize their
careers and lead to stigma. However, in 2010,
the Federal Aviation Administration (FAA)
allowed them to take certain antidepressants
cates. To declare someone suicidal, on

the basis of which he loses his livelihood, could lead to serious legal issues
for the airline and the doctor. But why
single out pilots when other categories
such as air traffic controllers and engineers too can cause harm? If safety is
the main concern, test all employees
who have the capacity for mass murder.
What will psychometric tests
determine?
It's difficult to look into a persons mind
and see how he would react to a LifeChanging Unit (LCU) episode. Rather
than tests, it would be more beneficial if
airlines/regulators introduce humane
and non-punitive counseling and
support for those undergoing life-changing episodes, leading to depression
(eg, death of a spouse or child, financial
or professional setbacks, etc). The higher the LCU count, the more unreliable
the behavior. A co-relation exists
between a pilot-error accident and
LCUs accumulated six months prior
to the incident.
Would conducting psychometric tests
be a logistical nightmare for airlines?

If the government is foolhardy enough to
propose these tests as pre-flight tests,
then, it will be a nightmare not only for
airlines but for the public too. There are
not enough psychiatrists/psychologists
in the country, leave aside the air force,
to conduct such tests daily.
Are pre-flight medical checks of airlines done professionally?
Yes, they are. A preflight medical is
done primarily to check for alcohol and
general physical condition by observation. Only if the doctor has doubts, can
he undertake further investigation.
Would it be a good idea to have aviation medicine specialists on board
airlines?
Every air force doctor or aviation medicine specialist is not trained to conduct
psychiatric and psychological tests.
Many pilots have gone through your
training. Approx what percentage
would have some psychological
issues?
In my 40-year career, I have not come
and still fly. The aviation expert said: These

include selective Serotonin Reuptake Inhibitor (SSRI) medications such as Fluoxetine
(Prozac), Sertraline (Zoloft), Citalopram
(Celexa) and Escitalopram (Lexapro). They
are non-sedating, commonly prescribed and
with minimal side-effects.
Such pilots, says FAA, have to be clinically stable on a stable dose on medication for
12 months prior to applying for a special
issuance medical certificate. The pilot has to
give a written statement describing his history of antidepressant use and mental health
status and provide medical records. However, this program of FAAs has been viewed
by aviators as costly and burdensome.
STRESSFUL LIFE
So how different are pilots from other professionals? They often suffer from excessive
across a single case of a pilot flying with

major psychological issues.
In that case, is the government overreacting in wanting psychometric
tests?
Yes, I think it is. The final inquiry report
has still not been released. The government should wait for the report and its
recommendations. If such testing is
considered mandatory, then, there
should be internationally recommended
standards for such tests. In the interim,
any risk of re-occurrence of such crashes is mitigated by the "two people in the
cockpit rule".
Can airlines in India have peer group
support like some airlines abroad to
address stress levels of pilots?
Some airlines do and all airlines must.
What does the FAA say about this
issue?
No one is saying anything about the
crash till the report comes out. Only our
government is over-reacting. The
Germanwings crash was a one-in-abillion case. Psychological or psychiatric
fatigue due to sleep deprivation and physical

exertion, leading to self-medication. Ordinary over-the-counter medication such as
Avil, Cetrizine and Phenergan can induce
drowsiness that can worsen the effects of
fatigue. These can, therefore, lead to serious
consequences in air. Similarly, anti-epileptic
drugs like Luminal and anti-diabetic drugs
can also have disastrous effects in the flying
environment, revealed the expert.
So what do pilots feel about having
mandatory and regular psychometric and
psychological tests?
It is a good idea as these will weed out
the unwanted elements. In flying, we cant
have below average candidates as they
become a liability, said a senior commander
of an airline. Psychometric tests check
whether a pilot is a team player, has stability
of character or will get agitated.
Psychometric
tests are a good
idea to weed out
unwanted
elements. In
flying, we cant
have below
average
candidates as
they become
a liability.
A senior
commander
67
DOOMED TO DEATH
(Below) Debris of the
crashed Germanwings
Airbus 320
(Bottom) Family
members of the
victims killed
in the crash
Pilots come with different attitudes, temperaments and age differences, all leading to
communication problems. Not to mention
egotism, aggression and machismo. Many
pilots still shake their head in amazement at
an incident in 1988 when two senior pilots,
who couldnt get along, were flying a B737.
The glacial atmosphere in the cockpit was
such that when the commander forgot to put
his landing gears down, the co-pilot kept
mum. The plane landed on its belly in
Kolkata, damaging it. Both pilots were taken
off flying.
PERSONALITY ISSUES
One commander revealed that some senior
pilots are so domineering that theyre like
mothers-in-law in the cockpit whom no
one wants to fly with. They are the I-memyself types. Co-pilots wriggle out of flights
with them by simply calling up and saying
they are sick. The roster team of airlines too
knows the psychology of pilots and adjusts
them according to their temperament. Two
weak pilots, both in terms of skill and attitude, should never be put together. It could
jeopardize flight safety. Flying, after all, is all
about attitude, he said.
In fact, NASA has identified deficient
interpersonal communication as a causal factor in 70-80 percent of accidents. These are
often ironed out in mandatory Crew Resource Management training and are meant
to focus on resilience, coping with stress,
enhancing positive thinking and interpersonal relations. They are conducted once a
year by airlines.
But who can take on commanders who
behave like demi-gods, brooking no disagreement? This January in Chennai, a pilot and
an engineer came to blows when the flight
Questions Galore
Questions have been raised over
these crashes:
In 1997, a SilkAir Boeing 737 crashed in
Indonesia, killing all 104 people aboard. The

pilot had recently been demoted in the wake
of complaints. He was also under financial
and family strain. US investigators concluded he had committed suicide.
In 1999, an EgyptAir Boeing 767 departing
from New York crashed into the Atlantic off

Nantucket Island and killed 217 people. US
investigators ruled out mechanical failures
and blamed the co-pilot.
In 1999, a grounded Air Botswana pilot
took off in one of the airlines turboprops

and crashed it into another plane nearby,
leading to both planes exploding and all
dying.
In 2014, Malaysia Airlines Flight 370
disappeared; investigators said it was likely

that one of the pilots deliberately crashed it
into the sea.
Photos: UNI
68
May 15, 2015
was on the ground and being

cleaned. Just then, the pilot
walked in and asked most of
the staff to leave. This was
objected to by the engineer who
said the flight had not yet been
handed over to the crew for flying. But the pilot refused to pay
heed and a fight ensued, delaying the flight.
Though pre-flight briefings
between the crew are meant to
break the ice, that doesnt
always happen, especially in
the Asian culture where people
dont speak up in front of a senior. As one pilot said: Every
additional stripe is an additional responsibility.
Senior pilots said that at
least 30 percent of pilots would
not make the grade for their poor skills and
10 percent for some kind of psychological
issues. Unfortunately, some of them are
training captains and could spoil the future
of young pilots, so the latter keep quiet.
WAKE-UP CALL
All this goes to show that airlines need to put
in enough time and energy to know their
pilots better, instead of simply seeing them as
work horses who fly their expensive
machines. Even the Germanwings crash
exposes a series of failures at Lufthansa (the
parent airline of Germanwings), the airline
industry and its regulators in dealing with
mental illness among pilots, said The New
York Times recently. And it shows how little
the industry and its regulators have done to
acknowledge and address the most extreme
manifestation of those psychological strains:
pilot suicide.
While some airlines encourage peer support groups and anonymous reporting, these
often dont work as few people come forward.
Doctors who have good rapport with aviators, like they do in the IAF, should be trusted to provide inputs about a pilots response
to stressful events such as marriage, divorce,
death of a loved one, etc. Such interactions
can be beneficial, provided the airlines institute a mechanism for professional and social
interaction of aviators and their doctors on a

regular basis. It is important to have 360
degree appraisal approach to monitor mental
state, said the expert. Airline sources also
suggest that the DGCA could consider random screening of commonly used drugs of
abuse among flight crew. There should be a
clear policy on this and multiple accredited
labs will be needed for this.
This is an important issue for airlines;
they should consider the huge amount they
would need to churn out if sued by families of
crash victims. Under the 1999 Montreal
Convention, airlines are liable for almost any
crash. In order to escape this, airlines would
need to prove that they are free of blame. As
that is impossible, most cases are settled out
of court. In fact, there are already reports
about how the cost of insurance for aviation
companies could rise if the DGCA goes ahead
with mandatory psychiatric tests. If a pilot
fails to clear it, it could lead to flight cancellations and claims.
However, passengers shouldnt get
alarmed. Only a miniscule percentage of
pilots would be tempted to do what the
Germanwings pilot did. And in India, with
family support and social links much
stronger than abroad, this is unlikely.
Nonetheless, it is better to be safe than
sorry. IL
NO LESSONS LEARNT
After the Mangalore
plane crash in 2010,
airlines were advised to
employ aviation
medicine specialists
69
RELIGION/ Catholic Church/Sex Charges
BUYING A
NUNS
SILENCE
Sexual misdemeanors by the clergy
in Kerala are nothing new. But for the
first time, the Church has paid
`12 lakh to a former nun who
was sexually abused
By TK Devasia
OPE Francis defrocked several abusive clergymen

since he assumed papacy in
March 2013, but his followers in Kerala have made a
nun, who complained of
sexual abuse by a priest,
give up her robes. And though the SyroMalabar Catholic Church, to which Anitha
belonged, claims that she hadnt complained,
strangely, the Church has granted her a living
allowance of `12 lakh, a gesture it has not
70
May 15, 2015
shown towards any nun in recent history.

At a press conference in Kochi, this exnun had described the sexual advances of a
priest while she worked as a teacher in
Pachore, Madhya Pradesh, in 2011 and her
subsequent ordeals. But this was before the
settlement took place. But now she is silent
and repeated attempts by this correspondent
to talk to her failed.
The events following the complaint
showed that the Church did not take kindly
to her attempts to put the priest in the dock.
Illustration: Anthony Lawrence
The St Agatha congregation, to which Anitha

belonged, turned hostile towards her after
she spoke up, and when she persisted with
her charge, it transferred her to Italy.
Conditions in Italy too were none not
friendly. Anitha claimed that she was made
to work at the Mother House as a slave and
had to go without food on many occasions.
When she complained, she was thrown out
and asked to leave Italy.
The same fate awaited her when she
returned to her parent convent at Aluva in
February this year. The convent authorities

refused to take her in and threw out her luggage. The local people took her to an orphanage there.
PORTRAIT OF COURAGE
However, Anitha was not prepared to give up
her robes. She wanted a valid reason for her
expulsion or compensation for the service
she had rendered to the Church for 14 years.
The congregation rejected both demands,
but the Ernakulam diocese intervened
71
WHY SUFFER
SILENTLY?
TV grab of Anitha, who
raised the issue
of sexual
harassment in
the Church
when she threatened to launch an

indefinite hunger strike before the convent and accepted her second demand.
The Church, however, has described
the financial assistance to Anitha as an
act of benevolence on the part of the
congregation. Father Paul Thelekkat,
spokesperson of the Syro Malabar
Church, dismissed questions about sexual abuse as a figment of her imagination. I did not hear the nun complaining of sexual harassment when I met
her. She had only two demands, one of
which was to return to the congregation. The second was to get a sum of
money for her future living. We have
accepted the second demand, he told
India Legal.
Anitha could not fit into the community.
The settlement was done on a personal basis,
for which there are reasons. It was the generosity of the congregation, which wanted
her to settle in life after so many years in the
convent, he added.
TRAIL OF MISDEEDS
Another nun, who had walked out of her congregation in 2008 alleging sexual harassment, calls the settlement a bribe to seal the
mouth of this ex-nun. Sister Jesme, who rattled the Church by describing tales of sleaze
in the Church in Amen, a book published in

2009, says the money was intended to ensure
that Anitha did not speak out any more.
Having suffered enough damage from the
autobiography of Jesme and the memoirs of
other former priests and nuns, the Church
apparently did not want to create another
martyr. All these books speak about the clergy indulging in sex and their cover-up.
While Jesmes book talks about the
harassment she suffered for resisting sexual
advances, homosexuality and corruption
within convents, Nanma Niranjavale Swasthi
How about a law to protect nuns?

No government in Kerala is willing to act on a proposal advising legislation for their future security
RELIGION is a touchy issue. And this
can be seen in the case of nuns and
priests who give up their vows. None of
the governments who have ruled over
Kerala, be it the Congress or the LDF,
have responded to their plight. Even
Left parties, who champion the cause of
the marginalized, have kept off the
issue, saying it would amount to interference in matters of religion.
In 2008, the Left Front government
buried a recommendation of Kerala
Womens Commission to enact a legis-
72
May 15, 2015
lation seeking to protect the interests of

the nuns. The commission, headed by
retired high court judge, Justice D
Sreedevi, had asked the government to
make legal provisions to secure the life
of those quitting the order. It wanted
legal provisions to prohibit girls under
18 from joining the vocation, prosecution of parents who forcibly send their
daughters to nunneries, protection of a
nuns share in family property and return
of property bequeathed to the Church if
they denounce their vows.
But the Congress-led United

Democratic Front opposition termed this
proposal as a challenge to religious
freedom. After coming to power in 2011,
they rejected the proposal.
The Church, too, claimed that
nobody in the Church could pronounce
vows before 18 years. Church authorities said they recruit girls to nunneries
only after completion of their school
studies and that too, with their full consent. It also permits them to leave the
nunnery any time during the training.
PEN FOR A CAUSE

(L-R) Sister Jesme wrote
an account of her
suffering at the hand of
Church authorities in
her autobiography;
Sister Marty Chandy
recounted numerous
scandalizing instances
in churches, in her book
(Peace to the One filled with Grace), an autobiography of Sister Marty Chandy, another
former nun, speaks about nuns who got pregnant by priests and aborted fetuses and other
scandalizing stories.
Even worse was Oru Vaidikante Hrudayamitha (Here is the Heart of a Priest), a
memoir by Father Shibu Kalamparambil,
who quit his Vincentian order after 14 years
due to frustration. His book alleges that
priests and nuns had converted convents and
nunneries into brothels.
He has now joined a movement against ill
practices in the Church called the Kerala
Catholic Church Reform Movement
(KCRM). He says a number of priests and
nuns had been caught red-handed but the
Church had hushed up the matter.
Reji Njallani, national convenor of
KCRM, says sexual misdemeanors by the
clergy is a serious threat to the church in
Kerala and wants the Vatican to review
celibacy law. He says that KCRM has already
submitted a representation in this regard to
Pope Francis.
However, noted writer Paul Zachariah
laughs at the suggestion. This will never
happen. Many of todays priests dont want to
marry. When they can get sex easily within
the confines of the Church, why bother to
maintain a wife and bring up children? You
dont need to open a tea shop to drink tea, he
says. Also, the Catholic Church, unlike other
Christian denominations, does not allow its

clergy to marry.
LARGE MIGRATION
The writer says this was one of the reasons
why the church in Kerala never faced any
problem in filling seminaries and nunneries.
Earlier, youngsters from poor families would
come forward to join the religious order.
Now, young boys and girls from well-to-do
families are also joining in large numbers.
Part of the reason for this interest is the
increasing opportunity of going abroad following the migration of many Christians in
Kerala to other parts of the world and the
acute shortage of priests in many countries,
especially Europe, says Zachariah.
Priests and nuns currently constitute one
of the largest migrations from Kerala, where
40 lakh educated youth languish without
jobs. The number of clergy leaving Kerala,
either for other states or to go abroad, is now
estimated to be around 1.35 lakh. Of the total
percentage of Catholic priests and nuns in
the world, Malayalees constitute 15 percent.
Zachariah reveals that the sex and corruption scandals are not bothering the
Catholic Church much as it has the money
and muscle power to cover them up. The
political clout wielded by this Church deters
the government from acting against it.
The two-decade-old Sister Abhaya case is
a glaring example. The Kerala police had
Sex and
corruption
scandals do
not bother the
Catholic
Church much
as it has the
money and
muscle
power to
cover
them up.
73
BREWING STORM
(L-R) Father Shibu
Kalamparambil quit his
Vincentian order after 14
years out of frustration;
Reji Njallani, national
convenor of KCRM,
wants the Vatican
to review celibacy law
to stem the rot
When the
priests can get
sex easily within
the confines of
the church,
why bother to
maintain a wife?
You dont need
to open a tea
shop to
drink tea.
Paul Zachariah,
writer
74
May 15, 2015
sought to bury the case as a suicide, but the

CBI, which took over the investigation, subsequently found that the 22-year-old nun
was murdered allegedly by two priests and a
nun after she witnessed their sexual acts in
the convent where she lived.
Similarly, the police did not care to conduct a proper investigation into the suicide of
23-year-old Sister Anoopa Mary even after
recovering a note from her room stating that
she was unable to withstand sexual harassment from senior nuns. She was found hanging in her room at Saint Marys Convent in
Kollam in 2008. Several other cases of sexual
abuse, murder and suicide within the Church
have not seen the light of day.
Njallani says KCRM is aware that the living allowance granted to Sister Anitha is part
of a cover-up operation. The Church has
insulted the ex-nun by describing the compensation as charity. After serving the
Church for 14 years, she had a right for a severance package, he says.
He says KCRM still accepted the settlement hoping that it would pave the way for a
better life for thousands of ex-priests and
nuns languishing on the sidelines of mainstream society. He says that the association of
ex-priests and ex-nuns floated by the organization recently is gearing up for a long struggle in this regard.
However, the Church has made it clear
that the allowance granted to Anitha is not
going to set a precedent for anyone else

in future.
FREE SERVICE?
Father Joseph Chinnayyan, former deputy
secretary-general of the Catholic Bishops
Conference of India, says it is not right on the
part of ex-priests and ex-nuns to demand
compensation as they had joined the Church
with a commitment to serve God. There cannot be any fee for this service, he stresses.
He says that the system under which the
Church works cannot be compared with
trade union laws. The issue would be addressed as per Canon Law, which has provisions to deal with it in a humane and benevolent manner, he adds.
Njallani wonders how the Church could
describe the service being rendered by
priests and nuns as free service to God when
the Church is charging market fees for the
service it provides. Self-financing colleges
under the Church are, after all, taking hefty
amounts as donation and tuition fee, he says.
If the Church is not ready to give fair
compensation to ex-nuns and ex-priests, they
will be forced to move the courts. Churches
in western countries are already paying billions as compensation to abuse victims. It
will be in the interest of the Church here if it
does not force the victims to go to the court,
he adds.
Talk about courting trouble. IL
INTERNATIONAL BRIEFS
Assange causes judges exodus

THE Commonwealth Law Conference
in Glasgow saw an exodus of senior
British justices when the organizers
decided to invite Julian Assange to
give an address through video conferencing, reports The Guardian.
Assange, who has been living the
life of a fugitive at the Ecuadorian
Embassy in London following his devastating revelations about the US
establishments espionage network,
Indian subsidiary in
legal tangle
A GERMAN wind turbine manufacturing company, Enercon, is taking its Indian subsidiary,
Enercon India Ltd (EIL), to the International
Arbitration Court in London for wresting control from the parent company, reports
www.rechargenews.com.
In the mid 90s, Enercon and Mehra Group
of India had come together to form EIL. While
the German company was to have 56 percent
stake, the Mehra Group was given effective
Tiff over Falklands
control over its management. But gradually,

the Indian partner started wresting control
from Enercon, aided by favorable judgments
from Indian courts. Enercons accusations of
financial mismanagement and concealing
financial figures went unheard in Indian courts.
Enercon pulled out of India in 2007.
The German press bitterly criticized the
Indian legal system for not protecting foreign
investors. But EIL continued to flourish. Despite rechristening itself Wind World India, it
continues to use the Enercon label in some of
its wind turbines.
Pak SC stays militants

hanging
ARGENTINA has launched legal

action against three British and two
US firms exploring oil off the Falklands, further intensifying a bitter
dispute between Argentina and the
UK over this area. The two nations
even went to war in 1982.
The firms facing legal action are
Premier Oil, Rockhopper Exploration and Falkland Oil and Gas
Limited from the UK and Noble
Energy and Edison International
from the US.
THE massacre of school children in

Peshawar was followed by a spate of
hangings in Pakistan, especially of terrorists. But now, the Supreme Court has
stayed the hanging of six militants. This
was following a petition filed by human
rights activist Asma Jehangir.
The petition stated that a judgment is
still awaited on the constitutionality of
military courts which had convicted the
militants. Further, if the militants are
Holocaust trial
Googles
monopoly
OSKAR Groning, a former Nazi

guard at the Auschwitz extermination camp, has admitted to being
morally complicit in crimes
against humanity, and described
how he watched a comrade smash
a baby to death. He is probably the
last Auschwitz guard to stand trial.
spoke about surveillance and security.

Several judges, who had already
arrived at the venue beat a hasty
retreat when they came to know about
his speech. They objected to the fact
that his name was added at short
notice, and they werent kept in the
loop about the change. The general
sentiment was that it would be improper for them to attend a session where a
speaker was a fugitive.
THE European Union

has formally accused
Google of forcing its own
services and applications on its Android smartphone users,
blacking out competition. This was
reported by Al Jazeera.
Pressure has been growing in
hanged even before the apex court

decides on the military courts, this will
be a big lapse. It also questioned the
treatment meted to militants in prisons.
Europe to combat the

US search engine
giants monopolizing
practices, including arbitrarily pushing content that serves the
companys and the
countrys interests, and to ensure that
consumer choices are honored. Google
could end up paying hefty fines, adding
up to some $6 bn in this case.
75
CASE STUDY/ Transgenders
When
Rupesh
became
Rudrani
Here is a personal account of
the trauma and pain a boy went
through as he fought for his
identity as a woman. Today,
she is working for the
empowerment of
transgenders and hijras
By Khalid Shah
76
May 15, 2015
Lalan Ram
UDRANI was born

male, but was never
comfortable with the
gender assigned to her.
Her body had all the
features of a boy, but as
she grew up, she saw
herself drifting to the feminine side. Her gender never stopped her from experimenting
with her sexuality. As a young boy, she was
expected to run, fight, play cricket and be
loud just like her peers, but her heart was
never in it.
Javed Sultan
While in school, she realized that wearing

skirts was more beautiful than wearing kneelength shorts. Playing with dolls was more
desirous than playing cricket and football.
She clearly was not fitting into the gender
that society and her family were trying to
mould her into. She grew up defying the
male identity, while being completely unaware of transgender notions.
In India, transgenders are identified with
hijras. A hijra is someone who is born intersex, Rudrani complains. But the term transgender actually means an umbrella of sexual
orientations and gender identities.

Researchers have found out that gender
identities go beyond simply male and
female and even beyond third sex.
In our country, people associate gender
with what is between the legs and not what is
between the ears, ie, the brain. Life was difficult for me; I was not born intersex and I
didnt have a feminine body. I was left to
choose between already existing gender
notions, says Rudrani.
Today, she heads Mitr Trust, an organization working for the empowerment of
MILES TO GO
(From left) A glamorouslooking Rudrani believes
that law alone cant end
the discrimination faced
by her community
77
Rajya Sabha passes transgenders bill

aimed to uplift community
RAJYA Sabha on April 24 passed The Rights of Transgender Persons Bill 2014,
with members from across the political spectrum joining hands to demand that
the government take steps to bring the transgender community, facing social
stigma and ostracism, into the mainstream.
The bill, moved by DMK member Tiruchi Siva, is the first private members
bill to be passed in 46 years. The bill will now go to Lok Sabha where it will be
debated and put to vote.
"The government must own this bill and pass a sensitive legislation for transgenders, whom people push away. It will give credit to the new government.
They have the same rights as you and me," Congress member MS Gill had said
when the bill was introduced in March this year.
Photos: UNI
STARRY SHOW
(Above) Conchita Wurst, the bearded transgender winner of the Eurovision Song
Contest before her concert at the European parliament on October 8, 2014
(Top right) Kamala Kinnar, a eunuch, going to file her nomination from the
parliamentary constituency of Varanasi in 2014
(Right) LGBT rights activist Lauren McNamara in San Francisco, a city where her
community has deep roots
78
May 15, 2015
transgenders and hijras. Along with two others, she co-founded a peer-based organization which takes the responsibility to protect
themselves and their sexual partners from
legal hassles, sexually transmitted infections
and diseases.
However, its main motive is to protect the
rights and dignity of the transgender population; advocacy efforts for the constitutional
recognition of transgenders as equal citizens
with equal rights and awareness against dis-
Anil Shakya
LEGAL SUPPORT
(left) A landmark ruling
by the Supreme Court
last April recognized
transgenders as the
third gender
crimination, stigma and violence.

Housed in a multi-storey building in
Uttam Nagar in Delhi, the office of the Mitr
Trust is usually ringing with songs sung by
transgenders. Mitr is a friend of a minority
of males, transgender women and hijras who
can live with dignity and respect at least
within the four walls of our office, if not in
the outside world, says Rudrani.
landmark ruling on April 15, 2014,

by the Supreme Court recognized
transgenders as the third gender. It
said: It is the right of every human being to
choose their gender.
This recognition brought legal relief to
the community of around two million transgenders who live on the fringes of society in
abject poverty. A majority of them make their
living singing and dancing during weddings
and auspicious occasions and indulging in
prostitution.
However, legal recognition isnt enough to
end the discrimination faced by people
belonging to Rudranis community. Even
though the law recognizes the third gender,
she cannot have an open sexual life as the
archaic Section 377 of the India Penal Code
sees gay sex as an unnatural offence punishable by 10 years prison.
Rudrani believes a law alone cannot end
discrimination. The Supreme Court recognition ends only the legal hassle. But the
Whats in a name?
A list of gender terms:
BISEXUALITY: A person attracted to two sexes, but since there many
genders, this definition is not totally inaccurate.
CROSSDRESSER: Someone who wears clothes associated with another
gender. This term has replaced transvestite, which is now considered
outdated and offensive.
DRAG: The act of dressing in gendered clothing and adopting that behavior
as part of a performance. It does not indicate that persons sexuality or
gender identity.
GAYS: Men attracted to men. Colloquially used to include all LGBTIQ
(Lesbian, Gay, Bisexual, Transgender, Intersex, Queer people).
GENDER IDENTITY: An individuals internal sense of gender, which may or
may not be the same as that assigned at birth. It is often confused with the
sex one is born with, but they are separate concepts.
HETEROSEXUALITY: Sexual, emotional, and/or romantic attraction to a sex
other than ones own.
HOMOSEXUALITY: Attraction to the same sex.
INTERSEX: A medical condition involving congenital anomaly of the reproductive and sexual system. Such people are born with sex chromosomes,
external genitalia or internal reproductive systems that are not considered
standard for either male or female.
TRANSGENDER: An umbrella term for transsexuals, cross-dressers (transvestites), transgenderists, gender queers and people who identify neither as
female nor male and are neither man nor woman.
TRANSSEXUAL: A person who experiences a mismatch of the sex they
were born with and the sex they identify with. They sometimes undergo medical treatment to change their physical sex to match their sex identity.
TRANSVESTITE: Individuals who regularly or occasionally wear the clothing
socially assigned to a gender not their own, but are fine with their anatomy.
Source: Gender Equality Resource Center, a University of California, Berkeley initiative
79
MAKING A MARK
(Right) Isabella Santiago
of Venezuela after she
was crowned Miss
International Queen
2014 in Pattaya on
November 7, 2014
UNI
greater hassle is posed by the society itself

which needs to be sensitized about transgenders. Go out and see how they are whistled at,
commented on and made objects of ridicule
on the streets of Delhi, she says.
Youve come a long

way, baby!
1897: During the British Raj, authorities attempted to eradicate hijras by

passing a law classing all eunuchs
as criminals.
1998: Shobha Nehru, a transgender
woman, was elected to the city
council of Hissar.
2009: Election Commission denied
the candidature of three hijras unless
they identified themselves either as
male or female.
2011: Census shows the official count
of third gender in India as 4.9 lakhs.
2014: Justice KS Radhakrishnan (left)
declares transgenders as the third
gender, saying: It is the right of every
human being to choose their gender.
AUGUST 2014: Padmini Prakash
(above) becomes Indias first transgender to anchor daily TV news; Delhi
University has application forms introducing a column for third gender.
JANUARY 2015: A transgender
woman, Madhu Bai Kinnar, wins the
municipal election in Raigarh.
80
May 15, 2015
rowing gender segregation is the

main reason for sexual violence and
discrimination. Why do we have
separate queues for males and females in
Metro stations? Why do we want separate
compartments for males and females? Why
cant all genders mix together with the security that nobody will be harmed, she asks.
As for Rudranis parents, they have now
given her the freedom to live her life as she
wants to and with whomever she wants to.
She lives with her boyfriend in the same
building as them, and says laughingly: My
mother calls my boyfriend jamai. While they
have given me freedom, their only condition
is that I live with decency and respect.
Traditionally, when a person joins a clan
of hijras, it is mandatory for him to acquire a
female name and female identity. So Rupesh
became Rudrani. My parents still call me
Rupesh. For them, I will always be their son.
But I am Rudrani. I am a woman who was
born a man.
It takes all kinds to make the world a colorful place. IL
1. A costermonger
sells .
A: Knick-knacks
B: Utensils
C: Fruits
D: Bangles
2. Smaller word for
valetudinarian.
A: Villager
B: Sickly
C: Magician
D: Statistician
3. Fear of dogs.
A: Cynophobia
B: Canophobia
C: Pussyphbia
D: Bonophobia
4. Diminutive for goose.
A: Geese
B: Gosling
C: Duckling
D: Gooselet
5. Cause clbre.
A. Main cause
B. Biggest challenge
C. Famous quote
D. Famous case
6. Bullfight is also
called .
A: hornwar
B: corrida
C: Tauruso
D: Spainish
7. Ticking of clock,
hissing of steam but
of skirts
A: rustling
have fun with english.

get the right answers.
play better scrabble.
By Mahesh Trivedi
B: swishing
C: swashing
D: crinkling
8. Drapetomania is the
urge to .
A: run away from home
B: dress differently
C: change curtains
D: wash clothes
9. To blackball.
A: To ban
B: To highlight
C: To fail
D: To die
10. Fuddy-duddy.
A: Quarrelsome
B: Old-fashioned
C: Fraudulent
D: Childish
11. Tellurium.
A: An element
B: Tank for turtles
C: True story
D: Long talk
12. One mans meat is
another mans .
A: malt
B: pickle
C: puzzle
D: poison
13. He asked: WYMM?
A: When Youll Meet Me?
B: Will You Marry Me?
C: Wheres Your Mad
Mom?
D: Will You Meet Me?
ANSWERS
14. Whats :-X?
A: Cant meet
B: Not coming
C: Big wet kiss
D: Boss is not there
15. Dogsbody.
A: Drudge
B: Dog lover
C: An NGO
D: No such word
16. Respectful behavior.
A: Curtesy
B: Courtsey
C: Courtesy
D: Curtsey
17. Used incorrectly.
A: Misused
B: Disused
C: Ill-used
D: Unused
18. A contemptible
person.
A: Braggart
B: Hoofer
C: Merchant banker
D: Snoozy
19. Whats the correct
spelling?
A: Dysentery
B: Dysentry
C: Dyscentery
D: Disentery
20. To get ones dander
up.
A: To do ones best
B: To make last attempt
C: To become angry
D: To reveal intention
1. Fruits
2. Sickly
3. Cynophobia
4. Gosling
5. Famous case
6. corrida
7. swishing
8. run away from home
9. To ban
10. Old-fashioned
11. An element
12. poison
13. Will You Marry Me?
14. Big wet kiss
15. Drudge
16. Courtesy
17. Misused
18. Merchant banker
19. Dysentery
20. To become angry
Y
L
D
R
WO ISE
SCORES
0 to 7 correctYou
need to do this more
often.
8 to 12 correctGood,
get the scrabble
board out.
Above 12Bravo!
Keep it up!
textdoctor2@gmail.com
81
PEOPLE / Nepal Earthquake

LOST HERITAGE
A man looks into his damaged
house to recover belongings,
in Bhaktapur. The quake killed
over 3,000 people
BROKEN PIECES
A collapsed house in
Siliguri
PLEADING TO
ALMIGHTY
Women chant
hymns during a
prayer ceremony
at a temple in
Ahmedabad, for
victims of the
earthquake
SNUFFED OUT
A temple bell
amid the
rubble
SHATTERED RUINS People survey a damaged site
in Kathmandu
THE UNKIND
JOLT
The body of a
victim trapped in
the debris speaks a
tale of deep sorrow
TRAUMA AND LOSS A woman mourns as her fathers body

is prepared for cremation along a river
Photos: UNI
Compiled by Kh Manglembi Devi
RNI No. UPENG/2007/25763
Postal Regd. No. UP/GBD-197/2014-16

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