India Legal 07 November 2016

NDIA EGALL
November 7, 2016 `100
www.indialegalonline.com
I
CodeofControversyThe government’s push for a Uniform Civil Code triggers a storm of protests and conflicting opinions
DangerousJester
InderjitBadhwarin
NewYorkonUSelections
ExclusiveInterview:
BalochLeader
NaelaQuadri
w:
IMMIGRATION IMBROGLIO
UK’s new move could
impact Indians
GAME UP!
The downfall of sporting
legend Michael Ferreira
TATA TO MISTRY
Could Cyrus’ ouster have
been handled better?

SORRY, NO
CHANGE
INDERJIT BADHWAR
1991. It is often said that the country takes
one step forward and two steps back. This is
why we see frequent glimpses of our deep-
rooted conservatism, whether it is to do with
cow politics, khap panchayats, ultra-nation-
alism, honor killings, attitude to women, the
unbending caste structure, bureaucratic
inertia or the excessive control that the gov-
ernment exercises on people’s lives and
choices. It is reflected in the resistance to
electoral reform, police reform and judicial
reform. It is why we still have Section 377 of
the Indian Penal Code, dating back to 1860,
which outlaws homosexuality, and an un-
written code that discourages kissing in
Bollywood movies. The licence raj, as busi-
nessmen will confirm, is alive and well and
living in North Block.
Narendra Modi, despite his right-wing
credentials, is perhaps the biggest symbol of
change, whether in economic policies, diplo-
macy, domestic crusades like Swachh
Bharat, building toilets or Make in India. All
these projects are facing teething problems,
an indication of how slowly and reluctantly
change happens in India. It also explains
why we are seeing Mulayam try to regain
political control of India’s biggest state and
Ratan Tata returning to preside over the cor-
poration he retired from in December 2012.
In India, the future somehow always re-
mains hostage to the past.
LETTER FROM THE EDITOR
HE two big headline-grabbing
stories of the past week were the
family feud in the ruling Yadav
clan in Lucknow and the equally
disturbing move by the Tata
Group to sack its chairman,
Cyrus Mistry, four years after he was given
charge of India’s best-known corporate enti-
ty. Both crises raise the question about the
inherent resistance to change in India,
whether in politics or business.
As chief minister, Akhilesh Yadav repre-
sented the youthful face of the Samajwadi
Party and his performance, while not spec-
tacular, was still considered acceptable. Yet,
with elections looming, the Old Guard, led
by his father Mulayam Singh, seems deter-
mined to re-establish the traditional leader-
ship hierarchy rather than allow the next
generation to take charge. The convulsion at
Bombay House follows a similar-sounding
script. India’s most respected corporation
seems to have opted for status quo rather
than allow Mistry to undo Ratan Tata’s lega-
cy and undermine corporate culture.
It is a reflection of Indian society’s atti-
tude and values. We are essentially a people
who are still obsessed with the past and with
traditions and rituals, however outdated
they may be in a modern-day context. India
may have made huge strides in economic
terms but that, lest we forget, was the result
of a change in official mindset brought about
by an unprecedented economic crisis in
T
3INDIA LEGAL November 7, 2016
editor@indialegalonline.com

NOVEMBER7,2016
Uniform vs Personal
The government’s push for a Uniform Civil Code has triggered protests and
varied opinions on both its timing and intent
12
LEAD
Pillars of Patriarchy
Most Muslims say they do not require organizations such as the AIMPLB but
want ones that address their educational, economic and social backwardness
22
Justice N Santosh Hegde recalls the Karnataka mining scam and shares his
views on corruption, AAP, the uniform civil code and the Cauvery water dispute
28“No Place for Honest in Society”
4 November 7, 2016
Quran and Women
Prophet Muhammad laid great emphasis on women’s rights. But as Quranic
commentaries became the domain of men, they weakened the position of the
fairer sex
18
The Goan Model
The Portuguese Civil Code of 1867 comes closest to fulfilling the objectives of
Article 44 of the constitution
24
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REGULARS
Mouthing patriotic platitudes was a shabby defense offered by Karan
Johar for casting Pakistani actor Fawad Khan in his film as he put profits
and self-preservation over everything else
Poor Show, Bollywood! 68
FollowusonFacebook.com/indialegalmedia
andTwitter.com/indialegalmedia
72UK PM Theresa May intends to bring down net immigration in her
country to 1,00,000 per year. This could hit Indians who form a major
chunk of the immigrants there
Immigrant’s Dilemma
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
CINEMA
DIPLOMACY
While this tax has been introduced, much needs to be done before
it can be completely implemented on April 1, 2017
48A Jigsaw called GST
COMMERCE
ACTS & BILLS
Caught in a Web
Legendary billiards player Michael Ferreira’s recent arrest links him
to a ponzi scheme. Police believe he was in the know of things
The Tata Sons chairman’s ouster has raised questions on whether he
will take legal recourse and if his removal could’ve been handled better
Goodbye, Cyrus 40
44
62While transplantation of human organs has given a new lease of life to
many, those between unmatched donors is risky and expensive to boot
When
Transplants
Fail…
Trump threatens the very idea of American nationhood which is based
on accommodation of immigrants, civil rights, supremacy of the
constitution and equal rights to opportunity
Rise of Grievance Politics
LETTER FROM AMERICA
Quote-Unquote ........................................................... 6
Ringside ...................................................................... 7
Courts.......................................................................... 8
National Briefs........................................................... 11
International Briefs ....................................................67
76
What does it take to prove your patriotism apart from chanting Vande
Mataram while declaring your black money? Some suggestions
The Last Refuge
SATIRE
82
HEALTH
FOCUS
In a move to isolate the “mothership of terror”, a private member’s
bill wants it to be declared a terrorist state
52Punishing Pakistan
BUSINESS
36As an RSS pracharak is arrested, the state government orders FIRs
against the cops. Their only hope now is the MP High Court
MP Police Cornered
STATES
INTERVIEW
There are voices of praise for Narendra Modi’s Pakistan policy from
across the border. Activist Naela Quadri Baloch is one of them
58“Modi Hero of the
Oppressed”
In a shocking lapse of duty, the NGT has found those responsible
for the Namami Gange project were ignorant of basic info on it
32Foxed by the Ganga
ENVIRONMENT

Dear Mr Thackeray,
did you just fix the
price of a soldier's
honour or izzat at 5
crores? Don’t you
see this thuggery
devalues the
Uniform?
—Barkha Dutt,
consulting editor,
NDTV, on Twitter
As a man who has spent
decades championing
women’s healthcare and
environmental protection, I was
distressed to learn of Pan
Bahar’s unauthorized and
deceptive use of my image to
endorse their range of pan
masala products.”
—Actor Pierce Brosnan, on the Pan
Bahar ad which features him, speaking
to People magazine
6 November 7, 2016
QUOTE-UNQUOTE
Donald wanted me drug tested before
last night’s debate. And look, I am so
flattered that Donald thought I used some
sort of performance enhancer. Now,
actually I did—it’s called preparation!
—Democrat candidate Hillary Clinton,
in the final presidential debate
One of the things I noticed tonight—
and I’ve known Hillary a long time—
that this is the first time ever, ever,
that Hillary is sitting down and
speaking to major corporate leaders
and not getting paid for it.
—Republican Donald Trump,
in the final presidential debate
Mulayam Singh is jealous of
Akhilesh because the CM is
more popular than him….
Without Akhilesh there is no SP.
—Ramgopal Yadav, expelled
Samajwadi party leader, on the
infighting in the party, in
The Times of India
Teachers want to know if they are teach-
ers or just instruments to transfer to the
children what is prescribed in books by
officers, ministers and experts.
Principals ask if they are only agents to
implement policies that are passed by
higher-ups. Teachers are becoming
slaves to curriculum….
—Manish Sisodia, Deputy CM, Delhi,
in The Indian Express
I would like to clarify that the reason why I
remained silent is because of the deep sense
of hurt and the deep sense of pain that I felt
because a few people actually felt that I am
anti-national….I have always felt that the best
way to express your patriotism is to spread
love and that's all I have ever tried to do
through my work and cinema.
—Karan Johar, on why he remained silent
regarding a Pakistani actor in his film

When you have the facts on your side, argue the
facts. When you have the law on your side, argue the
law. When you have neither, holler.
—Al Gore, Vice-President, 1993-2001
VERDICT

The Supreme Court kept up
its tough stance over BCCI’s
“intransigence” in implement-
ing the Lodha Committee rec-
ommendations.
It maintained its earlier
stand that all 25 state associa-
tions of the cricket board will
be completely starved of funds,
until they assure the top
court that the Lodha panel-
suggested reforms would be
followed in toto.
The Court also asked the
Lodha Committee to assign an
auditor to go through the bal-
ance sheet of the BCCI with a
fine tooth comb. It even took
away the complete control of
the BCCI over deciding on con-
tracts, saying that deals
beyond a certain limit must be
sanctioned by the Lodha
Committee, which will decide
the threshold level.
Taking note of BCCI presi-
dent Anurag Thakur opening up
a back channel communication
with the International Cricket
Council (ICC) to get around the
Supreme Court’s orders, the
top court gave the nod to the
Lodha Committee to connect
with ICC and convey the
verdict to the ICC chief.
The court also
asked Thakur and
BCCI Secretary Ajay
Shirke to file an affi-
davit within two
weeks, stating that
Lodha Committee
reforms will be fol-
lowed as per the apex
court’s July 18 order.
Fined for criticism
COURTS
Tough stand on BCCI
Taking the example of Colombian
President Juan Manuel Santos,
the Supreme Court asked the center
to resolve the decades-old Naxal
problem in the country on those
lines. Santos’ exemplary peace ini-
tiative with the Revolutionary Armed
Forces of Colombia, or FARC, has
earned him the 2016 Nobel peace
prize. FARC is considered a power-
ful guerrilla group.
The apex court wanted a similar
initiative to come from the center to
hold talks with all the naxal outfits
with the intention
of reconciliation. Its observation
came during a hearing on a peti-
tion from a social activist who
brought to the Court’s notice the
misery of tribals in areas hit by
Naxal violence.
The center’s counsel assured
the Court that the issue was being
taken seriously and no stone would
be left unturned to solve the prob-
lem. He, however, lamented that it
was not possible to disclose what
the government was doing.
8 November 7, 2016
Four members of the
CPM were held guilty by
the Supreme Court for deni-
grating the Rajasthan High
Court, which had given
anticipatory bail to people
said to be involved in the
murder of a trade union
leader. The members had
not only objected to the
Court’s decision but also
cast aspersions on the
integrity of the judges
behind the order.
The Court found the
allegations “baseless”
and observed that the
men could not be
granted immunity
under the right to
freedom of
speech and
expression as
well as the
Contempt of
Courts Act
1971. Section 5
of the Act says that
fair criticism of any
judgment will not invite
contempt.
The Court slapped a fine
of `2,000 on each of them
but did not uphold imprison-
ment awarded by the High
Court.
The men were held
guilty for going overboard
in terms of “decency and
fairnesss” and lowering
the reputation of the judici-
ary and undermining its
authority.
SC asks center to do a Santos

Gujarat HC’s verdict on Sardarpura case
The Telangana and Andhra Pradesh
governments were pulled up by
the Hyderabad High Court over flout-
ing policy guidelines and allowing
religious edifices to come up in pub-
lic places. Taking serious note of the
issue, the Court asked them to
explain the reason for doing so.
The High Court was responding
to a petition filed by MV Madhav, an
advocate from Hyderabad. Madhav’s
plea drew the attention of the court
to a Supreme Court ruling that had
asked the states to ensure that reli-
gious structures are not erected in
public places. It also pointed out the
guidelines framed by the erstwhile
Andhra Pradesh government in this
regard.
While raising objections that the
petitioner should have refrained from
mentioning chief ministers of both
the states as respondents, the High
Court issued notices to the respec-
tive chief secretaries. The matter will
come up again on November 15.
The verdict on the Sardarpura mas-
sacre that happened after the
Godhra riots in Gujarat in 2002 was
pronounced by the Gujarat High Court
recently. Thirty-three people were burnt
to death when a mob set a house of a
Muslim man on fire in Sardarpura on
March 1, 2002.
Seventy-six people were arrested in
the case and various charges slapped
on 73. A fast-track court later let off 42
persons and pronounced 31 guilty of
murder and other offenses and gave
them life terms and a fine.
The High Court acquitted 14 of the
31 convicted and awarded life term to
17 under various sections of the IPC.
Those acquitted got relief since there
was no evidence against them. The
“conspiracy theory” attributed to the
carnage but rejected by the lower court
was also struck down by the Court.
The Supreme Court-appointed SIT
to investigate all the post-Godhra riots
cases had first picked up the Sardar-
pura case.
Hyderabad HC raps state govts
Aplea for according “martyr” status
and allocating the same monetary
and other benefits to personnel of the
paramilitary and the police killed in action
as awarded to the armed forces was
struck down by the Delhi High Court. The
petition wanted the Court to issue direc-
tions to the center, DoPT and defense
ministry in this regard.
Observing that “such sacrifices are
remembered by the society at large and
no other recognition was required”, the
Court also considered that no such ter-
minology (read martyr) existed in the
lexicon of the defense forces. It also took
cognizance that there was no such notifi-
cation ever issued by the ministry of
defense for the armed forces or by the
ministry of home affairs for the paramili-
tary services.
Delhi HC clarifies “martyr” status

10 November 7, 2016
COURTS
Bombay Court upholds disqualification
The Bombay High Court struck
down a plea from an advocate who
had raised objection to his disqualifi-
cation by the High Court registry for
the post of district magistrate on the
ground that he was once charged in a
criminal case pertaining to dowry
harassment.
The Court did not consider that the
man was let off by a trial court and
the verdict had not been challenged.
The advocate pleaded that he had
got through the written and oral tests
and he was found ineligible only after
he had divulged information on the
matter. He also referred to a govern-
ment resolution which stated that only
a person found guilty by courts could
be unacceptable.
The High Court administration
contended that he was acquitted
due to lack of evidence and that
does not imply that he was indeed
innocent.
Why was erring officer promoted?: Allahabad HC
The Allahabad High Court took the
Uttar Pradesh government to task
for not acting against a District
Inspector of Schools (DIOS) who
allegedly molested women teachers.
The present DIOS of Allahabad,
Rajkumar Yadav, was Basic Shiksha
Adhikari (BSA) when he faced
departmental inquiries in as many
as 12 molestation cases. These
inquiries indicted him of molesting
women teachers. But instead of
being suspended, he had been
promoted as DIOS.
A PIL was filed in the Allahabad
High Court by advocate Nilesh
Mishra to bring to notice this injus-
tice. The court took cognizance of
the PIL. Expressing surprise, it asked
the state why no action had been
taken against the erring officer.
SA Naseem, the counsel for the
state government, pointed out that
the departmental inquiries had been
done by officers who were junior to
Yadav. He also contended that it’s the
basic education department which
has been made a respondent where-
as Yadav is a DIOS now and it’s the
Madhyamik Shiksha Parishad that
can take action against him.
The state government sought time
from the court. The matter was slat-
ed for hearing on October 27.
Asaram’s interim bail plea struck down by SC
Self-styled godman Asaram Bapu’s
plea for a month’s interim bail for
treatment in Delhi was struck down by
the apex court. He is serving imprison-
ment in Jodhpur jail. The Court was con-
vinced that his health condition was not
alarming. It took into account the AIIMS
medical board’s report that there was no
problem with Bapu’s health.
Responding to Bapu’s plea for
ayurvedic treatment in Delhi, the Court
ruled that the same could be done in
Rajasthan in judicial custody. The state
government assured the Court that it
would cooperate fully. The Court made it
clear that none of Asaram’s followers
could assemble or meet him at the hospi-
tal where the treatment is to be carried
out. His plea for regular bail would be
taken up in November.
—Compiled by Prabir Biswas, Illustrations: UdayShankar

—Compiled by Karan Kaushik
The class tenth board examina-
tions are likely to be back from
2018 for students affiliated with
the Central Board of Secondary
Education. Reasons why the gov-
ernment is set to announce the
reintroduction of the examina-
tions include feedback from states
and representative organizations
of parent and teachers. The feed-
back said that doing away with
the board exams affects academic
standards. However, studies sug-
gest that after scrapping of the
examination, the number of
dropouts has reduced. The CBSE
class ten boards were scrapped as
a means to reduce pressure on
students and were replaced with
the current evaluation process
that provides for tests and grading
through the year.
Anil Sinha, director, CBI,
has said that 392 of its
criminal probes having
international angles are
pending in 66 countries.
The agency needs informa-
tion from several countries
for many of its investiga-
tions including 2G scam,
AgustaWestland scam and
the recent defense scandal
related to Embraer deal,
among others. Sinha
said: “Be it the white collar
crimes of corruption and
financial frauds, cyber
crimes, terror related
crimes or organized crimes,
all are breaking out of
national boundaries and
carry a cyber
component.”
He also
informed that
the agency
will soon
set up an
International
Centre for
Excellence in
Investigation.
CBI probes pending abroad
The country’s largest bank,
State Bank of India and
its subsidiary banks blocked
about 6.2 lakh customer
debit cards following
suspicious transactions
carried out at third party
ATM machines.
Card holders were left
surprised when their cards
were blocked without
prior information.
The bank however, sent emails
and SMSes to customers, alert-
ing them about the blockage
later and asked them to apply
for new cards at their respective
branches. The action was
taken after some customers
used their cards at virus-infect-
ed white label ATM machines
operated by Hitachi payment
services.
To avoid misuse, the cards
were blocked. SBI took this
precautionary measure after
getting an advisory message
by card network companies
NPCI, MasterCard and Visa.
Various banks were also
informed about a potential
risk to some cards owing
to a data breach.
SBI blocks debit cards
The return of Tenth boards
NATIONAL BRIEFS
The Central Bureau of
Investigation has registered
a case in the Embraer deal
involving alleged bribe payment
for selling three aircrafts to
DRDO in 2008. Brazilian firm
Embraer made a payment of
$5.76 million in commission.
The investigative agency had
initiated a preliminary inquiry
in this matter in September fol-
lowing a reference from the
defense ministry.
It has also named defense
consultant Vipin Khanna as
accused in the case. Khanna was
allegedly paid the commission in
2009 and the money was trans-
ferred through a Singapore-
based company and diverted via
various countries including
Switzerland and Austria.
Khanna’s name had earlier
figured in the food-for-oil scam.
Embraer case filed

LEAD
H
ISTORY is witness
to the never-ending
conflict between
Church and State,
the ultimate “clash
of civilizations”. The
concept that reli-
gious morality should be separate from secu-
lar law lies at the heart of this battle, now
joined in India thanks to Shayara Bano, a 35-
year-old sociology postgraduate from
Uttarakhand, who was verbally divorced in
2015 by her husband.
As the center pushes for a Uniform
Civil Code, it triggers a storm of
protests and conflicting opinions on
the timing and intent. It is a complex
issue involving an incendiary mix of
politics, religion, gender equality,
pluralism and secularism
By Dilip Bobb
Code of
Controversy
UNDER SIEGE?
The Muslim community feels
that the Uniform Civil Code
drive is targeted at its ethos
12 November 7, 2016
UNI

Shayara challenged the constitutional
validity of personal law regarding divorce, in
particular triple talaq, in the Supreme Court,
opening the floodgates to what is arguably
the most contentious and complex issue of
our time—a Uniform Civil Code (UCC)
which overrides personal and religious laws.
The contentious part is not so much the bat-
tle for gender equality as it is to do with the
perception that there is a BJP government at
the center and a Uniform Civil Code affects
Muslims the most.
Muslim Personal Law, based partially on
Sharia law, permits unilateral divorce and
polygamy. Not surprisingly, the Shayara
Bano v Union of India case has become polit-
ical dynamite with the focus on identity pol-
itics. It has raised apocalyptic visions of an
all-powerful demon state intimidating reli-
gious minorities who, in turn, are trying to
make out that they are only trying to protect
their cultural ethos. The truth lies some-
where in between.
T
he debate is not new. What is new is
that the BJP government was the first
political party to make it an election
issue and the forceful manner in which it is
now pushing for the UCC is what has raised
questions and eyebrows. The government’s
reaction to the Shayara Bano case was in the
form of an exhaustive 7,944-word affidavit it
filed in the Supreme Court. “On potentially
the most contentious and significant legal
matter of our times, the government affidavit
has restricted itself to solely a legal and con-
stitutional point of view,” according to
Madhavi Divan, the lawyer who drafted it.
That defence was largely nullified by the
fact that the Law Commission, earlier this
month, shot off an ill-timed questionnaire to
various stakeholders “in order to begin a
healthy conversation on the viability of the
UCC.” Many of the questions are relevant
and well-intentioned. On triple talaq, for
instance, the questionnaire asks whether
it should be banned or amended. Says
Justice RB Mishra, former acting chief jus-
tice, Himachal High Court: “All should be
equal under the law. The laws should not
impose restrictions on women. This is the
right move.”
Perhaps, but it’s the timing that is
suspect; on the eve of crucial state elections
and considering that one of the main planks
the BJP had fought the 2014 Lok Sabha
Every community follows different rules
on issue like divorce. A majority of
personal or religious laws are skewed
against women.
COMMUNITY VS
INDIVIDUAL
(L-R) Uzma Naheed of
the All India Muslim
Personal Law Board
addressing a seminar on
the Uniform Civil Code in
Kozhikode;
Shayara Bano, fighting for
her rights
UNI

elections on was the introduction of a
Uniform Civil Code.
Indeed, if the NDA government’s actions
were suspect, it was to be expected. No gov-
ernment so far has dared to take the UCC
bull by the horns. The Congress was accused
of “minority appeasement” but even the BJP-
led NDA with Atal Bihari Vajpayee as prime
minister steered clear of the issue. Now, with
the Law Commission getting into the act, the
battle has been joined. The All Indian Mus-
lim Personal Law Board (AIMPLB) has ann-
ounced it will boycott the questionnaire
amid charges of legislative over-reach and
political parties have predictably joined the
fray. Adding fuel to the fire was the hype and
hysteria generated by some television news
channels over the issue.
The political fallout was along expected
lines. The BJP says it was purely concerned
with gender equality, with Union Minister
Venkaiah Naidu declaring: “The issues are
gender justice, non-discrimination and dig-
nity of women.” The Left took the line that
FEW TAKERS
Muslim women hold
placards in support of
the All India Muslim
Personal Law Board
during a signature
campaign in
Ahmedabad
there was an urgent need for reforms in per-
sonal laws and that a Uniform Civil Code
would be a threat to national integration.
The Congress, predictably, called the UCC
proposal “an impossible dream” while Mula-
yam Singh, supreme leader of the Samajwadi
party, which has a large Muslim vote bank,
asserted: “The issue of uniform civil code
should be left to religious leaders.”
Other opposition parties like JD (U)
accused the BJP-led central government of
trying to polarize the people ahead of assem-
bly polls in several states, while leader of
the Majlis Ittehadul Muslimeen (MIM)
Asaduddin Owaisi declared that bringing
the UCC would “kill the diversity and plura-
lity of India”.
The sharpest focus, however, is on the
AIMPLB which has appropriated the role of
the voice of Indian Muslims and the protec-
tion of Muslim personal law in India. Its rep-
resentative, Kamal Farooqi, made the orga-
nization’s stand clear when he said: “This
will mean direct interference of the govern-
ment in religious affairs as Sharia religious
law is based on the Quran and Hadith, and
its jurisprudence is strong as far as Islam is
concerned. It will be against the constitu-
tional right to religious freedom.”
T
here lies the rub. India has separate
sets of personal laws for each religion
and demand for overhauling these
codes date back decades. While Hindu law
reform began in the 1950s and continues,
activists have long argued that Muslim per-
sonal law remained mostly unchanged. In
fact, a growing number of Muslim women,
better educated, more aware and vociferous
about their rights, have had enough of patri-
archy. They are coming forward to challenge
such laws, in particular polygamy, triple
talaq and nikah halala under which a women
who wishes to remarry her former husband
must first consummate a nikah with another
male. Zakia Soman of the Bharatiya Muslim
Mahila Andolan, a social organization and
one of the petitioners in Bano’s case, stated:
“The minute you start talking about a UCC,
everyone gets worked up and the question of
gender justice gets derailed. We are going to
continue fighting for the abolition of triple
It is disgraceful that practices such as
triple talaq and polygamy can exist when
most Islamic countries, including
Pakistan, have banned such practices.
LEAD
UNI
14 November 7, 2016

T
he irony behind the Uniform Civil
Code (UCC) is that in the immedi-
ate post-Independence period,
major changes in personal laws affect-
ed the Hindu community rather than the
minorities. There were sharp divisions
within the Constituent Assembly on the
issue of a UCC.
India’s first Prime Minister
Jawaharlal Nehru was solidly behind a
Uniform Civil Code but was cautious
about implementing drastic changes
which could anger specific communi-
ties. The chairman of the Drafting
Committee, BR Ambedkar reassured
the Muslims, saying that “they have
read rather too much into Article 35,
which merely proposes that the State
shall endeavour to secure a civil code
for the citizens of the country”.
Consequently, the focus of the newly
elected parliament was on reforms to
do with Hindu laws pertaining to mar-
riage, monogamy, divorce and inheri-
tance. The proposed Hindu Code Bill
received much criticism from senior
Congress leaders like the first president
of the country, Rajendra Prasad, and
party president Vallabhbhai Patel, along
with right-wing parties. It was backed by
women members of parliament and law
minister Ambedkar himself. Thus, a
watered-down version of the bill was
passed by parliament in 1956, in the
form of four separate acts—the Hindu
Marriage Act, Succession Act, Minority
and Guardianship Act and Adoptions
and Maintenance Act with the proviso
that “the State shall endeavour to
secure for citizens a uniform civil code
throughout the territory of India".
The bill failed to redress the gender
imbalance since its implementa-
tion involved men. Nehru
accepted that the bill was flawed
and added that a Uniform Civil
Code was a necessity but he did
not want it to be forced upon
any community, especially if they
were not ready for such a
reform. Crucial aspects such as
the validity of marriage and
adoption were left to custom.
Likewise, regional variations
in custom, such as succession rights in
Tamil Nadu and Kerala, were left alone.
The Hindus of Goa are exempt from the
Hindu code. After the passing of the
Hindu Code Bill, personal laws in India
were kept away from any reforms and
talk of a Uniform Civil Code eventually
decreased, until the 1986 Shah Bano
judgement, and the granting of rights
beyond personal law to an abandoned
wife. A panicky Rajiv Gandhi govern-
ment gave in to the clerics and
reversed those rights by using his brute
majority in parliament to pass a law
which revived the UCC debate, now
given fresh impetus by another Muslim
woman divorced through triple talaq,
Shayara Bano.
talaq and ensure women’s rights based on
Quranic principles.”
Adds Aishwarya Bhati, former secretary,
Supreme Court Bar Association: “Religious
gurus spread the wrong message under their
propaganda. The rights under Article 25
to 28 (rights of religion) are secured fully. If
we can have one country, one tax, why can’t
we have one law for all? The debate of the
Uniform Civil Code has become a tool to
oppress women.”
There is no question that such laws are
regressive and archaic but successive govern-
ments have refused to intervene in order to
appeal to crucial vote banks, or to preserve
them. The history of the UCC since its birth
in Article 44 of the constitution has been
governed by vote bank politics. In 1986, the
Supreme Court decided in favor of a Muslim
woman, granting her maintenance after she
was divorced by her husband. The Rajiv
Gandhi government panicked, fearing loss of
its Muslim vote bank and hastily introduced
a bill that virtually nullified the judgement.
The woman’s name was Shah Bano.
Now, another divorced Muslim woman,
Shayara Bano, has revived the UCC debate
and, with crucial state elections nearing, it
has the potential to snowball into a major
controversy.
The opposition has accused the BJP of
trying to solidify its Hindu vote bank on the
eve of state elections in UP, a charge that it
will find difficult to counter considering its
own record with women’s rights is suspect
and it faces a huge trust deficit with minori-
ties. Then there are the constitutional speed-
breakers. Imposing the Uniform Civil Code
would require the amendment of not just
Article 370 that grants special status to
Jammu and Kashmir, but also the north-
eastern states.
Aturbulent
history

Under Articles 371A and 371G, parlia-
mentary law cannot impose on customary
practices unless the legislatures of Nagaland
and Mizoram vote their approval. Similarly,
the Sixth Schedule grants law-making power
involving customs and family law to the
regional and district councils in tribal areas
of Assam, Meghalaya, Tripura and Mizoram.
The key issue is that the UCC comes under
the Directive Principles of the Constitution.
Says Pushpendra Singh, additional advocate
general, Rajasthan: “Directive principles,
though not enforceable, is a direction given
to the government by the constitution. If we
want a reformative society, it is necessary to
give special status to women.”
Moreover, even the Hindu Code is not
binding on all Hindus. Some aspects of mar-
riage laws and adoption are left to custom
while the Hindu Undivided Family concept
has its own tax laws and (male-oriented)
rules regarding inheritance and manage-
ment of properties. Similarly, there are
regional variations to do with marriage and
succession rights in Tamil Nadu and Kerala
which will need to be amended and negotiat-
ed. Goa is the only state (see box) to have a
Uniform Civil Code but it contains separate
provisions for followers of different religions.
O
n an All-India basis, every commu-
nity follows different rules when it
comes to an issue like divorce. For
Christians, a petition for dissolution of mar-
riage by mutual consent can be filed only
after a judicial separation of two years.
Under the Special Marriage Act, the Hindu
Marriage Act and the Parsi Marriage and
Divorce Act, it is one year. Bishop Yuhanon
Mar Demetrios, Metropolitan of the Kerala-
based Malankara Orthodox Syrian Church,
told India Legal that as far as Christians are
concerned, if the UCC leads to an equitable,
just and egalitarian society, they would go
along with it. “Constitutional rights should
be protected. It is a good idea to have one law
but we need to see the finer details of it. As
far as Christian marriage laws are con-
cerned, the UCC won’t affect us as much as
other communities. The Indian Christian
Marriage Act serves us well.”
The crux of the issue lies in the fact that a
majority of personal or religious laws,
regardless of communities, are skewed agai-
nst women. The most glaring example of
that lies in the khap panchayats, the quasi-
judicial bodies that pronounce harsh punish-
ments, including honor killings and banish-
ment, based on age-old customs and tradi-
tions which are extremely regressive, even
medieval. In Haryana, western Uttar Pra-
desh and parts of Rajasthan, their decisions
are binding on the villages they sit in judge-
ment over. The Supreme Court had declared
them as illegal but despite that, the present
government of Haryana states that they
THE PRIORITY IS
VOTES
When Shah Bano (right)
won a landmark case
for her rights after her
divorce, Prime Minister
Rajiv Gandhi
succumbed to pressure
and introduced a bill to
nullify the judgment
“Constitutional
rights should be
protected. It is a
good idea to have
one law but we
need to see the
finer details of it.
As far as Christian
marriage laws are
concerned, the
UCC won’t
affect us as much
as other
communities.”
—Bishop Yuhanon
Mar Demetrios of
Malankara Orthodox
Syrian Church
LEAD
16 November 7, 2016

Congress leader
Veerappa Moily
Pointing out that
close to 300
personal laws
exist in India
covering various
communities and
regions, he said
in a country of
this nature,
implementation of
UCC is next to
impossible.
BJP leader and
Union Minister
Venkaiah Naidu
Voicing the
stand of the
BJP, he said
the party was
purely
concerned with
gender equality,
gender justice,
non-discrimina-
tion and dignity
of women.
IL
serve a “useful social purpose” and they will
not be banned.
Then there is the ongoing controversy
over the Jain community and their fasting
rituals which led to the death of a teenage
girl last month. No government has dared
interfere in what is a cruel and life-threaten-
ing personal law. Such striking anomalies
across the board in Indian society would
suggest that a Uniform Civil Code is the
answer. Yet, among the more enlightened
members of society, the idea of all personal
laws conforming to a single and largely
abstract level of uniformity is, equally, diffi-
cult to support.
Congress leader Veerappa Moily while
stating that “in a country of this nature,
implementation of Uniform Civil Code is
next to impossible”, pointed out that close to
300 personal laws exist in India covering
various communities, caste and regions.
Some of these extend to adivasis and tribals.
Women from the Oran and Ho communities
of Jharkhand have challenged the constitu-
tionality of the Chotanagpur Land Tenancy
Act, which limited the right to cultivate jun-
gle land to male descendants. The Supreme
Court upheld the constitutionality of the Act
but held that female heirs of the last male
tenant could hold and use the land as long as
they were dependent on it for their liveli-
hood. It was a compromise solution that left
tribal laws unchanged.
So is there a way out of this tangled web?
As of now, there is no model draft and with
the current suspicion about the BJP’s inten-
tions, many fear it will be a Hindu law pack-
aged as bringing about gender-sensitive
social reforms. Former Prime Minister AB
Vajpayee, during his tenure, declared that
any new UCC would comprise the best ele-
ments in all personal laws.
C
onstitutional experts agree that the
best way forward is to encourage var-
ious communities to reform their
own personal laws. In today’s age, it is dis-
graceful and abhorrent that practices such as
triple talaq and polygamy can exist when
most Islamic countries, including Pakistan,
have banned such practices.
That also applies to many laws relating to
marriage and inheritance for Hindus which
discriminate against women. Says Pushpen-
dra Singh: “We urgently need a number of
reforms for women and we can’t take the
back-foot just because it is related to any
religion. We have seen a Uniform Civil Code
being successfully implemented in Goa. We
can do it for the rest of the country too.”
The UCC is, however, an emotive, even
adversarial issue and legal experts agree that
any implantation will require incremental
steps and discussions with stakeholders
before it can be begin its legislative journey.
With state elections looming, any attempt
to fast-track the process will face an uncivil
reaction.

LEAD/ My Space
T
HE cat is once again out of
the bag of the All India
Muslim Personal Law Board
(AIMPLB) both on the issue
of triple talaq and its sup-
posed phobia of a uniform
civil code! The Board feels it
is its right to dictate terms and espouse views
on issues that extend from the public
domain of Indian Muslims to the privacy of
their bedroom. Stoke a controversy involving
the community and the usual suspects start
emerging from the murky and infested
woodwork of the AIMPLB.
So the wise men constituting the board
have once again jumped to the conclusion
that the government is out to steal Muslims
of their personal Sharia rights as enshrined
in the Constitution of India. In doing so, they
have closed their eyes to the fact that 92.2
per cent Muslim women are against the
dreaded and un-Islamic triple talaq in one
sitting. It must be pointed out here that the
Law Commission has taken the right action
and has not specially targeted Muslims but
has also asked inputs from all the other reli-
gions with the sole intention of uplifting the
lot of women.
The UCC (Uniform Civil Code) has noth-
ing against Islam or Sharia rather its very
first point coincides with the Quran which
states that both men and women be given
equal rights. It’s only the injustice to Muslim
women meted out by their men that will be
corrected by the UCC and that too in the
spirit envisaged by Islam. Indeed, the UCC,
as per the Islamic order, will strengthen the
right procedure of triple talaq from talaq-e-
bidat (triple talaq in one sitting) to talaq-e-
husna (talaq in three months allowing a pos-
sibility of patch-up). It is sad that the
Muslim leaders are creating a humbug over
a non-issue.
SELF-APPOINTED CUSTODIANS
The AIMPLB is at the vanguard of the battle
to ensure that women of the community con-
tinue to suffer bias, are deprived of the pro-
tection they should get through provisions in
the Constitution that provide for equality
and non-discrimination. The Board, it would
seem, wants them to remain at the mercy of
the patriarchal set-up manned by sundry
clerics with their own crumpled interpreta-
“Down with
the Personal
Law Board”
Most Muslims agree that they do not
require such bodies but would want ones
that address and find solutions to their
educational, economic and
social backwardness
Firoz Bakht Ahmed
18 November 7, 2016

tion of the holy Quran.
These self-appointed custodians of the
Indian Muslims, who just wait for an oppor-
tunity to lock horns with the government
and cry hoarse, have been blessed by the
present triple talaq controversy to make
their otherwise diminished presence felt.
Triple talaq and uniform civil code are two
separate issues. Personal laws cannot claim
supremacy over the rights granted to indi-
viduals by the Constitution.
All that AIMPLB has managed, is tarnish
the image of Indian Muslims. Most negative
statements of the Board quoted in the media
are taken as reflecting the views of the com-
munity. The truth is that an average Muslim
is not governed by what the board says.
The reality is that Muslims need no per-
sonal law boards. They would rather issues
like education, economic and social back-
wardness are addressed. The time has come
when all wheeler-dealers must be sidelined
and the community itself shoulders the bur-
den of coming into the mainstream. The
board is a tower of Babel whose members are
incapable of taking a unanimous decision.
Their dedication seems to be reserved for
taking decisions that helps fill their coffers.
The AIMPLB formed in 1972, is a motley
collection of some 201 members including
clerics and some professionals of whom 101
are permanent while the rest are on a three-
year term. Most of the board members rep-
resent the more orthodox male opinion.
They don’t have a progressive viewpoint.
Though considered sinful, the triple
divorce is legally enforceable in the Sunni
Hanafi law. It is not mentioned in the holy
Quran and is blasphemous. To Prophet
Muhammad, divorce was most repugnant.
Hazrat Umar, his follower, used to punish
those who divorced their wives with lashes.
But since vast majority of Muslims in India
follow Sunni Hanafi law, many Muslim
women become victim of this innovated
form of divorce and hence they are now tak-
ing the help of the apex court.
AN ORTHODOX LOT
The average Muslim has always objected to
the AIMPLB’s plea that it represents the
community. What’s more shocking is the
manner in which the media takes each and
every word of the board as gospel truth.
PATRIARCHY
Women members of All India
Muslim Personal Law Board
address a press conference
on triple talaq in Lucknow.
Their voices reflect the
male mindset; (left) a
nikahnama
UNI

“What authority do the board members have
to speak for us?” ask Indian Muslims.
Indian Muslims face multiple problems,
possibly more than any other prominent
religious group in our secular sovereign
republic. Some of the baggage they carry is
owing to the way in which the majority com-
munity views them.
In fact, many of the notions are negative,
inaccurate, retrogressive, made up of half
truths, propaganda, outright lies and some-
times trumped up. The other baggage is a
result of their own inaction and the lip-ser-
vice they have paid to opportunistic inter-
locutors and so-called leaders.
For a start, most Hindus make up their
mind about Muslims on the basis of faces
from the community they see on TV and the
voices they hear in the media. The people
covered by the media are invariably 80 plus
men insisting on the status quo on the triple
talaq and other issues. These men (women
not seen!) seem to come from antidiluvian
times. They are a set of disgruntled, disor-
ganized and divided individuals. Their con-
vulsions over issues like triple talaq, family
planning, nikahnama, polygamy, Babri
Masjid, etc. are cases in point.
If the law board members are told of the
reforms in talaq, polygamy or family plan-
ning in countries like Pakistan (family law
ordinance), Iran or Indonesia, they dismiss
them saying they don’t follow examples set
by these countries. Religious but moderate
Muslims believe that the community has to
address issues like birth control in its own
interest. The AIMPLB should hold a refer-
endum on such important issues. Broadly,
the board’s members are incapable of saying
anything that is less than fundamentalist,
orthodox, damaging and inflaming.
But the tragedy is that in the din of
chaotic pandemonium, the voice of sanity is
lost and the media pays no heed to it.
The truth is that for those Muslims who
choose to embrace modernity, the
AIMPLB is an anachronism. What’s still
more shocking is that by projecting the
entire community as obscurantist, the
board even harms the cause of the faithful
whom it claims to serve.
Without closely studying the Uniform
Civil Code no serious effort will be possible
to begin an ambitious national project of
reconstruction of religious thought in
Islam by Indian Muslims. Perhaps this can
be done by dedicating ourselves with
greater vigour to realizing Iqbal’s dream of
a renaissance in Islamic culture. And
the first step must be taken by the
Indian Muslims themselves sans any per-
sonal law boards.
Prime Minister Narendra Modi, has
rightly spoken about putting an end to the
oppression of Muslim women just by utter-
ing the obnoxious word, talaq, three times
in one sitting. His intention is clear: let no
Muslim woman be deprived of her rights to
equality and justice given to her by the Holy
Quran. Modi is just in favour of strengthen-
ing the spirit of Islam through the law of the
land without interfering in sharia law. The
trouble with the clerics is that they subvert
the otherwise-broad principles of Islam to
meet their own political ends, thereby tak-
ing the entire community for a ride. They
are the ones to blame for bringing Islam to
shame. It is high time they stop doing this
huge disservice to the faith and follow the
religion in its true spirit.
(Firoz Bakht Ahmed is a commentator
on social issues and the grandnephew
of Maulana Azad. The views
expressed are his own.)
SILENT MAJORITY
Women offer prayers
on the occasion of
Eid-ul-Fitr in Chennai.
As many as 92
percent of Muslim
women oppose
triple talaq
LEAD/ Opinion
IL
20 November 7, 2016
UNI

LEAD/ Murad Ali Baig
M
ARRIAGE in Islam was a very
sacred rite and women were
given unprecedented impor-
tance by Prophet Muhammad.
The old Arab tribal traditions
continued substantially unchanged in the
Quran and a man had to pay a bride price to
the family of his future wife for depriving
them of a valuable working member. The
dowry, given by the groom in a contract
before a mullah, was the property of the
bride alone and she had a right to it even in
the event of a divorce. Prophet Muhammad
laid great emphasis on the fair treatment of
women and children and of family values,
frequently emphasizing kindness and love.
Divorce was not difficult but the Prophet
prescribed severe limitations to control its
abuse and protect women from exploitation.
A pregnant woman could not be divorced
and a man had to provide maintenance to a
divorced wife unless she had been unfaithful.
According to the Quran and Hadis (writ-
ten 200 years later), the pronouncement of
talaq (notice of divorce) had to be uttered
QuranisFair
toWomenProphet Muhammad laid
great emphasis on the protection of
women. But as Quranic commentaries
became the domain of men,
they weakened the position of
the fairer sex
My Space
EQUAL RIGHTS
As per the Quran, a
man had to pay a
bride price to the
family of his future
wife for depriving
them of a valuable
working member
UNI
22 November 7, 2016

IL
three times with intervals of three periods
corresponding to three menstrual cycles.
This was meant to allow time for mediation
or reconciliation.
Another safeguard was that in the nikah,
or marriage contract, the groom had to pro-
vide a substantial settlement that provided
lifetime security for the bride.
Today, many boys in Islamic countries
cannot get married as they can’t afford the
“bride price”. Few know that women also had
the right to initiate divorce called khula
under which she could retain all the mehr,
jewelry and gifts given in marriage.
T
he Omayyad Khalifs, however, found
these rules too restrictive for their
indulgences and their clerics conve-
niently allowed Muslims to believe that the
pronouncement of triple talaq had been
allowed by the Prophet, thus greatly lower-
ing the status of women. In recent times,
some nondescript mullahs even permit
instant talaq to be pronounced over the tele-
phone. Later on, some clerics further
corrupted Islamic marriage practices and
even allowed Muta marriages, valid for just
one day, to enable men to fornicate at
will while sanctimoniously claiming to be
good Muslims.
The Quran even mentions veils and when
they can be used. Arab women, like most
women in ancient societies, used to modestly
hide their faces when in the presence of
strangers. But there was no religious req-
uirement in the Quran for them to be com-
pletely veiled. The Quran says in Sura 24:30
– 3: “Enjoin believing women to turn their
eyes from temptation and preserve their
chastity… to cover their adornments and
draw their veils over their bosoms and not
reveal their finery except to their husbands…
close relations… and slave girls.”
For 14 centuries, all Quranic commen-
taries had been the exclusive domain of
Muslim men, with the result that many
changing commentaries over the centuries
weakened the position that the Prophet had
prescribed for Muslim women.
In the Hadis, it had, however, been noted
that the women in Prophet Muhammad’s
household used to cover or veil their faces
whenever they passed the throngs which had
gathered to listen to the Prophet at his house
in Madina. Over the years, some chauvinistic
clerics chose to use this example to force all
women to wear veils, hijabs or be clad from
head to toe in an ugly tent-like burqa.
Incidentally, the story of Prophet
Muhammad, and thus the traditions of early
Islam, was recorded by the earliest biogra-
phers—Ibn Ishaq (d 768 CE), Ibn Hisham (d
833), al- Baladhuri (d 892) and al-Tabari (d
922). These records were, therefore, written
136 to 290 years or roughly 6 to 12 genera-
tions after the death of his companions of
Mecca and his helpers (Ansars) of Madina.
As in all religions, many other commen-
tators and clerics were to add their own
contributions to create the myths about
Prophet Muhammad and his words and
these were not in full conformity with the
earliest historical sources. The authenticity
of Muhammad’s utterances are, therefore,
dubious.
Divorce was not difficult but Prophet
Muhammad prescribed severe limitations
to control its abuse and protect women
from exploitation.
UNI

24 November 7, 2016
LEAD
T
HE Portuguese Civil Code of
1867 that came into force in July
1870 in the erstwhile colonial
territory of Goa, is still applica-
ble in parts to this region, along
with relevant procedure from the Civil Pro-
cedure Code of 1939. In its full form, it has
four parts and 2,538 articles, and was the
most comprehensive piece of legislation co-
mprising the law of Contracts and Obliga-
tions, the Law of Persons, the law of property
rights and the law of Torts. Post the libe-
ration of Goa in 1961, some three hundred
central Indian laws were extended to Goa,
and large portions of the 1867 Code
stood repealed.
GENDER JUST LAW
In the 1970s, jurists and legal practitioners,
however, lobbied for retention of many of the
provisions of the Code and allied colonial le-
gislation and decrees, successfully arguing
that this entire corpus of codes, decrees and
laws relating to matters of family, marriage,
guardianship, children, divorce, succession,
inheritance, wills and partition of family
property—constituted a unique heritage,
that defined the Goan region, binding all its
inhabitants to a uniform and common sys-
tem of law. It was posited then, that the Goa
Many of the provisions in the Portuguese Civil Code of 1867 have
been retained since it came closest to fulfilling the objectives of Article
44 of the Constitution of India for a uniform civil code.
By Pamela D’ Mello in Panaji
GoaShowstheWay
EGALITARIAN APPROACH
The laws that have been evolved
under the Portuguese rule provide
for a host of rights to women and
non-Christians
saviocolaco.com

Family Laws were a unique and superior sys-
tem of law, gender just and equitable, that
applied uniformly to all, irrespective of reli-
gion and came closest to fulfilling the objec-
tives of Article 44 of the Constitution of In-
dia for a uniform civil code, since religious
family laws, applicable elsewhere in India
were not applicable in Goa and minor efforts
to have them extended were rejected.
Under such laws in the region, marriages
are a civil contract, and have to be compulso-
rily registered in the civil registry to have ci-
vil effects. One of the most important aspects
of such marriages is the four systems under
which property is governed within the mar-
riage. The general principle is that of com-
munion of assets and properties, where the
properties owned by both spouses are held
equally though administered by the hus-
band. There are provisions for absolute sep-
aration of assets, with the signing of a pre-
nuptial public deed, and simple communion
of acquired assets with ante-nuptial deeds.
Consent and concurrence of both spouses is
needed for alienation of immoveable proper-
ty. Much of these provisions contributed to a
comparatively better protection for legal ri-
ghts of women in Goa, and these were avail-
able across communities.
The law of marriage of 1910 defined void
and voidable marriages, rights and obliga-
tions of spouses and provided for the fate of
minor children in cases of annulment. Reli-
gious marriages do not automatically have
civil effects unless they are registered, tho-
ugh exceptions were supplemented by a
1946 decree. The law of divorce of 1910, dur-
ing a republican regime in Portugal, provid-
ed for several grounds for litigious divorce,
including adultery of any spouse, serious ill
treatment, abandonment for over three years
of the marital domicile, incurable lunacy, de-
facto separation for 10 consecutive years,
gambling etc. No grounds are required for
divorce by mutual consent, if both spouses
are over 25 and have been married for more
than five years. The provisions for alimony,
property of the ex-spouses, children from the
marriage are thus also common for all com-
munities. Procedure in these matters stem
from the Civil Procedure Code of 1939, fol-
lowing a special equity jurisdiction.
Elaborate laws for the protection of chil-
dren in 1910, provided for recognition of ille-
gitimate children with succession rights, in-
vestigation into illegitimacy, alimonies to the
mother etc.
SUCCESSION LAWS
Succession laws are also similarly uniform
with specific exceptions provided in an 1880
decree. The character of wills, its interpreta-
tion etc are all codified under a single law.
An important aspect is the setting aside of a
“legitima” or indisposable legal portion re-
served for compulsory heirs, that cannot be
willed or gifted away and protects next of kin
and inheritors.
Within classes of heirs, distribution is per
capita and equal. No distinction is made
between male and female heirs, or on the
basis of age. Brothers and sisters inherit
equally. Provisions of the law set out proce-
dures to evaluate and partition property
between heirs through inventory proceed-
ings. The general quality of the law is touted
as leading to a gender just legal system,
No distinction is made between male and
female heirs, or on the basis of age.
Brothers and sisters inherit equally. It’s a
gender-just legal system.
A MILESTONE
The departure of
Portuguese from Goa in
1961 was followed by
extension of central
Indian laws to the region

IL
26 November 7, 2016
of a male child, separation when proceeding
from the wife and no male issue and dissolu-
tion of marriage for adultery. Such religious
marriages permitted dissolution only in the
case of adultery by the wife, but entitled her
to maintenance. Simultaneous marriage was
permitted only if conditions were proved in
court and with the consent of the first wife,
made in a public deed.
It also recognized traditional Hindu joint
family units for succession purposes and
provides for constitution and reconstitution
of such units. An important aspect, still in
current usage, is the adoption procedures
permitted to Hindus under this specific
Code. (The Civil Code did not provide for
adoption to other communities). An article
in the Code also summarily permits other
non-Christians to follow their usages and
customs, provided it is within public mora-
lity and order.
“By and large though, most communities
integrated with the Civil Code” says advocate
Fernando Colaco, former officer on special
duty to the First Law Commission for Goa.
The provisions of the Customs and Usages
Code dealing with limited polygamy are also
not exercised, except in rare cases, though
they continue to exist on the statute book.
A fresh release of translated and slightly
amended sections dealing with succession,
inventories and special notaries law was
released in a gazette in September 2016,
under the Goa Succession, Special Notaries
and Inventory Proceeding Act, 2012 (Goa
Act 23 of 2016).
An article in the 1860 Code summarily
permits non-Christians to follow their
usages and customs, provided it is within
public morality and order.
though not without exceptions, limitations
and practical infringements.
There are also exceptions to absolute uni-
formity in the laws. These reflect the chang-
ing political conditions in colonial Portugal
at the time and the negotiation and capitula-
tion to local sentiments that the erstwhile
colonial regime made. A decree on canonical
marriage in 1946 singled out Church mar-
riages and gave the same civil effects, if
records of the same were transcribed in the
civil registry. Christians had the option of
choosing a church marriage or a civil mar-
riage. The former meant they renounced
possibilities of availing civil remedies of a
divorce. Only an annulment, decided by an
ecclesiastical court, was open to such mar-
riages. By a 1974 case law though, provisions
to debar divorce under the 1946 decree has
been struck down and divorce is now grant-
ed even to such marriages.
HINDU CUSTOMS RECOGNIZED
A further exception is the 1880 Code of
Usages and Customs of Gentile Hindus.
This grants civil effects to marriages accord-
ing to religious rites, and furthermore per-
mits “simultaneous polygamy” in limited
cases of absolute absence of issue, or absence
LEAD

60 November 7, 2016
“Today, Society
Only Respects
Money and Power”
FACE-TO-FACE
JUSTICE SANTOSH HEGDE is a respected former judge of the Supreme Court. He has also
served as Solicitor General of India and Lokayukta for Karnataka. He then joined the Anna
Hazare movement but left it when the core team decided to take to politics. In an exclusive
interview to ABHILASHA PATHAK, he talks about a host of issues, including corruption,
AAP, the Uniform Civil Code and the Cauvery water dispute. Excerpts:
What are the highlights of your career?
In 1975, when Emergency was declared,
four MPs visited Bangalore and were
detained. I got the opportunity of repre-
senting them without even knowing who
they were. I went to jail to meet them. One
was Atal Bihari Vajpayee, another was LK
Advani, the third was Madhu Dandavate
and the fourth, SN Mishra.
In ’77, when Emergency was lifted and
elections declared, all of them became
members of the cabinet under Morarji
Desai. In 1983, I became the advocate gen-

eral of the state and served for four-and-a-
half years. In 1989, there was change of
guard in Delhi and VP Singh became the
prime minister. Soli Sorabjee became the
attorney general of India and invited me to
become the additional solicitor general.
Kapil Sibal and Arun Jaitley were my col-
leagues. In 1998, Vajpayee became the PM
and Sorabjee invited me to become the
solicitor general of India. Nine months
later, the chief justice called me to join the
bench and become a judge. My widowed
mother telephoned me and told to accept
the job as it would have made my father
very proud. I couldn’t say no to her. I
accepted the job. I retired as a Supreme
Court judge in 2005. Then I got a call from
the chief minister of Karnataka to become
the Lokayukta there. My wife wanted to go
to Bangalore and I did. Then everything
changed in my life. I was given an opportu-
nity to help people.
So what do you do now?
I don’t work with any organization because
I have difficulty in doing so. I worked with
Anna Hazare for 18 months. Arvind
Kejriwal was in the team as were some oth-
ers. Finally, the government came around
and promised Anna Hazare that it would
bring a Lokpal Bill in parliament and asked
him to end his fast. The government of the
day was saved.
Suddenly, Kejriwal joined politics and
formed AAP. I did not join them. When we
were in Anna Hazare’s team, we were fight-
ing politicians and political parties. Now
suddenly you say you will form a political
party. Once you form a political party, peo-
ple from all sorts of organizations come and
join you. You don’t know their backgrounds.
See what’s happening in AAP today. Nearly
seven ministers and MLAs are under the
scanner. I don’t blame Kejriwal because it is
not possible for him to screen them when
they come in.
How do you view what is happening in
the country?
There is growth of corruption in India. We
are also losing humanism. Without these
two things, it is not possible to bring about
any change in society. So I go to educational
institutes to talk to the youth so that they
can change society. Today, we are in a socie-
ty that respects money and power, nothing
else. Honesty has no place in it. I have seen
with my own eyes people go to jail; when
they come out, people garland them. Look
at Bihar. Lalu Yadav was convicted by
court, he went out on bail but his party won
votes and the maximum number of seats. So
corruption is not an issue at all. I know it is
not possible in my lifetime to inculcate
NO TO POLITICS
(Top) Justice Santosh
Hegde with Anna
Hazare during the
anti-corruption
movement in 2011
(Above) Team Anna.
Like Anna Hazare,
Justice Hegde was
against their forming
a political party

During Emergency, I got the opportunity of
representing four MPs who were detained in
Bangalore without even knowing who they
were. One was Atal Bihari Vajpayee.
30 November 7, 2016
but nothing is happening. (No action
was taken on his report other than then
Karnataka Chief Minister BS Yeddyurappa
resigning. The guilty are yet to be brought
to book.)
Do you think the accountability of politi-
cal parties should increase?
Certainly. Parties just want to win, doesn’t
matter how. Even the electorate follows
this; either they get bribed or vote along
caste and community lines.
How do you see the role of the center?
In the present cabinet, there has been no
allegation of corruption for the past three
years compared to previous years. I am
totally apolitical. I do not believe in the
present political system.
I have a major fear about this country.
Unlike other countries, we don’t have a
common religion, language or culture. We
are a multi-religious, multi-cultural, multi-
lingual state which is being held together
for the last 70 years out of love for the
country. But it is a very fragile state. Some
time back, there was a demand for a sepa-
rate Tamil state. Then there is the Kashmir
issue. And there are enough people who
want to incite such movements for their
own personal gain.
So unless the youth of the country stands
together, I don’t know what
its future will be.
The Law Commission has
brought up the issue of
Uniform Civil Code. Do
you feel it has the proper
backup from the central
government?
The Law Commission has
always been an advisory
body and not a law-making
body. On the Uniform Civil
Code, I read an interesting
WhatsApp post. It says: keep
triple talaq, but let the
Muslims also be governed by
all the sharia laws in the crim-
inal side as well, like cutting
off a person’s hands if he
values among the youth and build a society
which boycotts the corrupt.
You were known for the stand you took
on illegal mining in Karnataka…
I gave the mining report. I named three
chief ministers of a political party and nine
ministers. More than 700 officers were
involved in it. Look at the amount of cheat-
ing that was going on. One metric ton of
good quality iron ore was fetching
Karnataka `27. But one metric ton was
exported in 2008 to China at the rate of
`6,500-7,000. Is this business? (The
Lokayukta report says that 12.57 crore tons
of iron ore was exported overseas from
Karnataka between 2006 and 2010). It was
taken without a single permit. For trans-
portation of iron ore, five permits are
required. This is where they have a single-
window service. You pay bribe at a single
window and they distribute it among them-
selves and the lorry is allowed to go.
The Lokayukta has filed chargesheets,
FACE-TO-FACE

IL
NO EASY
DECISIONS
Karnataka and
Tamil Nadu
have been
embroiled in a
struggle over
Cauvery waters
We are a multi-religious, multi-cultural,
multi-lingual state which is being held
together for the last 70 years out of love for
the country. But it is a very fragile state.
steals and such like. (laughs)
We see a lot of judicial activism
these days.
This is not of recent origin. It started with
Justice Bhagwati. When the administration
fails, when people’s rights are ignored, how
can an adjudicating institution keep quiet?
Take pollution. It seems to have improved
ever since the Supreme Court took up the
matter. There are many good things the
Supreme Court has done in the process of
judicial activism. Of course, there have been
mistakes. It is up to the Chief Justice of
India and his brother judges to decide how
far you can go and where you should go.
The Cauvery river dispute has been domi-
nating the headlines.
One of the major complaints of people in
Karnataka against me is that I did not
openly speak against the Cauvery decision. I
can’t be personally involved in it. They say
Karnataka is not giving enough water to
Tamil Nadu. At the same time, the northern
part of Karnataka is fighting against the
sharing of Mahadayi river with Goa and
Maharashtra. Our complaint is that Maha-
rashtra and Goa are not giving us enough
water. We can’t ask them to give us water if
they don’t have enough themselves. In all
these matters, where do you take a stand? If
you take a strictly legal stand, nobody will
like you. If you don’t take a stand, then they
are angry with you.
The share of water has already been
decided by water tribunals. Now whether it
is possible to give that water or not, let the
Commission go and see. If it is possible, it
should compel the states to give and if they
cannot, where will they give it from?
The Supreme Court said that lawyers
should not go on a strike. The lawyers say
it is their constitutional right. What is
your view?
You prevent the courts from functioning but
what happens to the constitutional rights of
the litigants whom you are supposed to be
helping? Who are you helping? Yourself. I
am against strikes by lawyers who have
taken a professional oath to maintain pro-
fessional ethics.
UNI

ENVIRONMENT
W
HAT is the status of
the humongous
`20,000 crore that
the center allocated
under the Namami
Gange project to
clean the polluted
Ganga? How much has been carelessly
spent? Are they any results to show? This
and many other vexing questions were
raised by the National Green Tribunal
(NGT) in a series of back-to-back hearings
this fortnight.
The Tribunal was hearing the views of
various parties that were called in after a
petition was filed by environment activist
and lawyer MC Mehta who claimed that the
pollutants in the Ganga were violating the
fundamental rights of people who lived
around it. He said that all the authorities
responsible for the cleaning had done noth-
ing till date and had been sitting on funds
allocated by the central government. He was
In a shocking lapse of duty, the NGT has
found that those responsible for the
Namami Gange project were not only
ignorant about basic information about the
river but had conflicting versions of it
By Ramesh Menon
Foxedby
theGanga
referring to the first phase of the project
which was to cover a stretch of 180 km
from Haridwar to Kanpur, which is one of
the most polluted.
POINTED QUESTIONS
When the matter came up before the NGT,
the Court asked pointed questions to the
authorities concerned like the Ministry of
Environment and Forests, Central Pollution
Control Board (CPCB), UP State Pollution
32 November 7, 2016

Board, UP Jal Nigam, the government of
Uttarakhand and others. These were:
How many industries are there in UP?
What is the quantum of discharge of the
industrial waste & sewage?
What is the content of affluent of industrial
waste and sewage?
Which are the functional drainage lines
and where do they discharge?
What is the actual quantum of effluent?
Is all the polluted water treated under the
Zero Liquid Discharge policy which means
that the water can be cleaned and recycled
for use?
Interestingly, various government
authorities provided conflicting figures to
the Court and these changed with every
hearing. Initially, the UP government said
that it had 6,671 industries. Out of them,
1,585 are highly polluting ones, 2,103 were
less polluting and 1,899 were non-polluting
as per the environmental norms. In the
COLOSSAL NEGLECT
The Sisamau Nala in
Kanpur discharges the
largest amount of
untreated waste into
the Ganga

next hearing, the figures changed. The highly
polluting ones rose to 2,208 and the less pol-
luting ones shot up to 2,290. The non-pol-
luting ones fell to 1,887.
Chairperson of the NGT Justice
Swatanter Kumar pulled them up and said
that they should not play with the Tribunal’s
patience as it would not hesitate to send the
officers to jail if they erred with their infor-
mation. He said: “We regretfully know that
the knowledge of the officers of the subject is
pathetic and we order the state to take action
against all those useless officers and submit a
report to the tribunal.”
Justice Kumar said the authorities did
not even know how many drains were being
emptied into the Ganga and did not even
have basic information about pollution
sources that were damaging the river. It was
the duty of the Pollution Control Board to
check and control the effluents that flowed
in the drains, he said.
BRAIN-DRAIN?
The observation came after the CPCB told
the NGT that there were 30 main drains
which flowed into Ganga or its main tribu-
taries like East Kali, Kosi and Ramganga.
However, the Uttar Pradesh Pollution
Control Board claimed there were 172
drains, of which 150 directly joined Ganga
and its tributaries. The UP Jal Nigam
claimed there were 83 drains that flowed
into the Ganga. According to the UP govern-
ment, 1,382.36 million liters of sewage is
generated every day, but only 300 million
liters get treated. The rest flows into the river
untreated, destroying aquatic life and
endangering life.
Earlier, the Tribunal had imposed a com-
plete ban on the use of plastic from Gomukh
to Haridwar along the river and imposed a
penalty of `5,000 per day on erring hotels,
dharamshalas and ashrams spewing waste
into the river.
A recent RTI
query by
Aishwarya
Sharma, a
14-year-old
Lucknow girl,
revealed that
`2,958 crore had
been spent in
the last two
years to clean
the Ganga.
DIRTY PICTURE
Ragpickers collect plastic
waste from the Ganga;
(bottom) in Kanpur,
effluents from tanneries
pollute the river
ENVIRONMENT
UNI
34 November 7, 2016

IL
The bench hearing the case pointed out
that the Tribunal could not come to any con-
clusion until the quantum and quality of
sewage details are available. This was a moot
point as the authorities have a statutory duty
to maintain records.
DIFFERENT VERSIONS
As there were conflicting figures and the offi-
cials were not ready to stand by them, Justice
Kumar constituted a committee to identify
how many drains emptied into the Ganga
and its tributaries. The members of the com-
mittee are: member secretary, CPCB, chief
engineer, Jal Nigam and senior environmen-
tal officer, UP Pollution Control Board. Their
job would be to identify the drains and the
effluent content in the stretch between
Haridwar to Kanpur.
Angered by the casual attitude of officials
from Uttar Pradesh and Uttarakhand who
could not provide reliable details of pollution
in the river, the NGT had asked the Ministry
of Water Resources and Ganga Rejuvenation
through the National Ganga River Basin
Authority not to release funds to both states
without its approval.
The case will now be heard daily as it has
reached the stage where the Tribunal is hear-
ing the final arguments by various authori-
ties on the mechanism to clean the Ganga.
The Tribunal came down heavily on the
Uttar Pradesh government for wasting
crores of public money on Ganga rejuvena-
tion and restrained it from spending on any
major project except maintenance work on
the stretch from Haridwar to Kanpur.
Clearly, officials will now have to seriously
focus on the work at hand if any more money
is to be released for Prime Minister
Narendra Modi’s dream project.
COLOSSAL WASTE
A recent RTI query by Aishwarya Sharma, a
14-year-old Lucknow girl, revealed that
`2,958 crore had been spent in the last two
years to clean the Ganga since the Modi gov-
ernment came to power. The query showed
that funds that the center had allocated for
this period had not even been fully spent.
Another RTI query revealed that a whop-
ping `43.85 lakh was spent on one meeting
of the National Mission for Clean Ganga at
Vigyan Bhawan in Delhi. Out of this, `26.7
lakh was spent on accommodation for
guests, `8.8 lakh on their travel, `5.1 lakh on
advertising the event and `75,000 on floral
decorations. Attempts to get official reac-
tions to the misuse and lack of coordination
in the project met with no response.
The Ganga is a lifeline for more than 500
million people along its banks and the
ecosystem it supports. Noted environmen-
talist Vandana Shiva had said: “If the
Ganga lives, India lives. If the Ganga dies,
India dies.”
(With inputs from Kamran Alam)
“We regretfully
know that the
knowledge of the
officers of the
subject is pathetic
and we order the
state to take action
against all those
useless officers
and submit a report
to the tribunal.”
—Justice Swatanter
Kumar, chairperson
of the NGT
“The movement to
save the Ganga
is not just a
movement to save
a river. It is a
movement to save
India’s troubled
soul... If the Ganga
lives, India lives. If
the Ganga dies,
India dies.”
—Vandana Shiva,
environmentalist,
activist, author

36 November 7, 2016
STATES
T
HE Madhya Pradesh police is
demoralized owing to harsh
action by the Shivraj Singh
Chouhan government against
a dozen police personnel over
the alleged custodial torture
of a district RSS pracharak in
Balaghat, 300 km from Bhopal. The police is
now awaiting a High Court verdict which,
it hopes, will help restore the force’s
shattered morale.
Under RSS pressure, the state govern-
ment asked the Balaghat police to register
FIRs against additional SP Rajesh Sharma,
Baihar station in-charge Zia-ul-Haque, sub-
inspector Anil Ajmeria, assistant sub-inspec-
tor Suresh Vijaywar and constables Abhay
Singh, Dharmendra Tembhre and Kunj-
bihari Sharma under Sections 307 (attempt
to murder), 392 (robbery), 147 (rioting), 323
(causing hurt), 506 (criminal intimidation),
294 (obscene acts) and 452 (house trespass).
All of them are absconding, said the police,
adding that the robbery charge pertains to
RSS pracharak Suresh Yadav’s mobile phone
having been taken as evidence.
Yadav was allegedly thrashed by a police
team in Baihar police station of Balaghat
district on September 25 for circulating a
highly offensive post against Islam on
WhatsApp. The post particularly targeted
All India Majlis-e-Ittehadul Muslimeen MP
Asaduddin Owaisi. An FIR was registered
under Section 295 (outraging religious senti-
ments) after some Muslim youth com-
plained and Yadav was arrested.
PIL IN COURT
Taking up cudgels on behalf of the punished
police personnel, the Democratic Lawyers
forum filed a PIL in the MP High Court
seeking revocation of the government action
against the officers and a CBI probe into
the incident of alleged custodial tor-
ture. Congress Rajya Sabha member and
Supreme Court lawyer Vivek Tankha is fight-
ing the case.
Responding to the PIL, a division bench
comprising of acting Chief Justice Rajendra
Menon and Justice Anjuli Palo issued
notices to the MP government through the
home secretary, the National Human Rights
Commission (NHRC), the CBI, state DGP
and the Balaghat SP. Given the sensitivity of
the matter, the Court ordered that “nothing
pertaining to the merits of the matter or alle-
POLICE
CorneredinMPAs an RSS pracharak is arrested by police personnel, they
find themselves caught in a bind as the government cracks down
against them. Their only hope now is the MP High Court
By Rakesh Dixit in Bhopal

gations made in the petition shall be pub-
lished by the way of press statement or
news in the media”. However, most of the
details are already in public domain, cour-
tesy the media.
According to BJP sources, the Shivraj
Singh government is edgy over the Court’s
verdict which is expected soon. An addition-
al director-general of police (ADGP) in the
police headquarters said on condition of
anonymity: “The chief minister’s abject sur-
render to the RSS pressure has not only
demoralized the police force but has also set
a horrible precedent.”
A section of the police force has vented its
frustration over the government’s action in
the social media through oblique references
to the RSS influence over the government.
A mock IPC has also surfaced in social
media, suggesting how and why the RSS
cadres must not be touched, howsoever
heinous their crimes.
The unseemly haste with which the state
government buckled under RSS pressure to
act against the police personnel has landed
Chief Minister Shivraj Singh Chouhan in an
unenviable situation. It has also given the
Congress party a potent opportunity to por-
tray the government as a “stooge of the RSS”
ahead of the Shahdol parliamentary by-elec-
tion due on November 19.
COMMUNAL IMPLICATIONS
Just how badly the government bungled in
this case at every step is evident in the
sequence of events since September 25 when
the case was registered against Suresh Yadav.
The Baihar police station in-charge Zia-Ul-
Haque was conscious of the communal
implications of his action against Yadav for
circulating the anti-Islam post on Whats-
App. He apprised his seniors, including IGP
DC Sagar and SP Asit Yadav and sought their
direction. The seniors assigned ASP Rajesh
Sharma to lead a team to apprehend Yadav
the next day. A nine-member team with Zia-
Ul-Haque as the sole Muslim member went
to the RSS office to pick up Yadav. A meeting
was on there.
According to the police, Yadav first vocif-
erously protested the allegations against him
but yielded after the ASP snatched his
mobile and showed the controversial post in
it. Armed with evidence, the police team
took him for interrogation. Just a few yards
from the police station, the RSS
“The chief
minister’s abject
surrender to the
RSS pressure
has not only
demoralized the
police force but
has also set
a horrible
precedent.”
—An additional
director-general of
police in Bhopal
LOYALTY MATTERS
MP home minister
Bhupendra Singh and
agriculture minister
Gaurishankar Bisen
visit Suresh Yadav at
a hospital in Jabalpur
Twitter

pracharak escaped and hid in a medical
store. As policemen rushed to catch him, a
mob of mostly RSS volunteers gathered and
started hurling abuses at the police person-
nel and gheraoed the station. They threat-
ened that they could unseat chief ministers,
even prime ministers. “We can make or
break governments. You are worthless. Just
wait, if we fail to remove your uniforms, we
will leave the Sangh,’’ were some of the
alleged threats.
Undaunted, the police started Yadav’s
interrogation. There are conflicting reports
of what subsequently happened. While the
police maintain that Yadav sustained minor
injuries while trying to wriggle out of the
police net, RSS leaders allege that the police-
men led by ASP Rajesh Sharma beat their
man black and blue. However, a video
recording of Yadav’s interrogation, which
went viral later, shows him as having suf-
fered only minor bruises. He is seen aggres-
sively complaining of the thrashing but did
not look grievously injured to warrant
admission in the ICU of a Jabalpur hospital
where he was brought by supporters the next
day. The hospital is owned by staunch RSS
leader Dr Jitendra Jamdar.
SIT PROBE
The medico-legal report of Yadav also con-
firmed that he had sustained minor injuries.
The report has put the special investigation
team (SIT) which was formed to probe the
incident, in a quandary. The SIT has also not
found any evidence of merciless beating
which would warrant Yadav being admitted
in a hospital, according to police sources.
They also said that SHO Zia-Ul-Haque, who
the RSS has alleged to be main culprit, did
not even touch Yadav. The SIT is, therefore,
dithering on submitting its report lest it is
challenged in the High Court which is
already seized of the case. A magisterial
probe has also been ordered by the home
department into the incident.
Haque later recalled spending the night
cowering in a room above the police station
after it was surrounded by hundreds of
slogan-shouting Hindu activists following
Yadav’s arrest. They demanded that he be
handed over to them, Haque said, called him
names and said he should be sent to
Pakistan. The incident may have moved
the state’s home minister to transfer or
suspend the policemen involved in the
alleged bashing. But BJP general secretary
Kailash Vijayvargiya’s tweet, deploring the
“unpardonable act” of beating a RSS man
fuelled the row.
Coming as it did a day ahead of the BJP
state executive meeting in Gwalior, the
Baihar incident dominated the meet’s pro-
ceedings. Many more BJP leaders such as
The haste with
which the MP
government
buckled under
RSS pressure to
act against the
police personnel
has landed
the CM in an
unenviable
situation.
SENSATIONAL MATTER
(L-R) A crowd gathers
in front of the SDO office
at Baihar; Baihar
police station
38 November 7, 2016
STATES

IL
Lok Sabha member Prahlad Patel, his
younger brother and MLA Jalam Singh and
another MLA Sanjay Sharma voiced support
for Vijayvargiya’s tweet. They even demand-
ed resignation of agriculture minister
Gaurishankar Bisen who hails from Bala-
ghat. The discord in the ruling party over the
issue prompted the RSS to exert more pres-
sure on the government. The organization
had already enforced a successful bandh in
Baihar town on September 27 to demand
action against the police officers.
RSS DIKTATS
As a result of RSS pressure, state home min-
ister Bhupendra Singh announced suspen-
sion of the “guilty” police officers in the BJP
meet itself. This apparently did not satisfy
the RSS. So, Singh and his cabinet colleague
Bisen visited the RSS pracharak at Jamdar
hospital in Jabalpur the next day. Here, the
ministers not only endorsed the RSS accusa-
tion of police brutality but also announced
that henceforth, police officials across the
state would be asked to keep meeting RSS
cadres in their respective jurisdiction so that
such incidents did not recur.
The home minister also announced that
nine police personnel would be booked for
attempt to murder, rioting and robbery. Even
this punishment was not deemed enough by
the RSS. Its two most influential leaders in
the state, BJP organization general secretary
Suhas Bhagat and regional head Arun Jain
called on the chief minister to act tougher.
On October 2, Chouhan removed the IGP
and the SP.
The RSS is still not satisfied as the
“accused” have gone underground. On Octo-
ber 20, two RSS volunteers of its media cell
in a press conference accused the state gov-
ernment of deliberately not arresting the
policemen. They also charged the media
with distorting facts about the incident and
siding with the police.
Given the RSS influence on the Chouhan
government, neither the opposition nor the
police force is hopeful of a fair play in the
case. Their hopes are pinned on the MP
High Court.
“We are confident that the Court will say
that all citizens are equal and RSS men can’t
have the license to get away by committing
crimes,” state Congress spokesman Pankaj
Chaturvedi told India Legal. “The govern-
ment has decided to sensitize every police
station about RSS leaders and workers in
their area and how to deal politely with
them,” said state Congress president Arun
Yadav, adding, “this is a dangerous sign for
democracy.” He expressed hope that the
Court would take cognizance of the home
minister’s statement to this effect and give
suitable direction.
The Baihar incident presents a sharp con-
trast to similar incidents in which abusers in
social media were severely punished. Two
months ago, the Bhopal police arrested a
bookshop owner for allegedly selling Nai
Duniya, an Urdu weekly that had published
the photograph of a local Bajrang Dal leader.
Bajrang Dal activists had lodged a complaint
accusing the magazine-seller of inciting
hatred among communities. In July this
year, police in Betul district arrested two
men in connection with a communally sensi-
tive message shared on a WhatsApp group.
In another instance, the Bhopal police
booked two men under the National Security
Act after arresting them from Mumbai for
reportedly posting obscene images of deities
on Facebook. In all these incidents, the
accused were Muslims, whereas in the
Baihar case, it was an RSS volunteer.
There are different rules for different
people.
Given the RSS influence on the Chouhan
government, neither the opposition nor the
police force is hopeful of a fair play in the
case. Their hopes are pinned on the judiciary.
PRICE OF PERFORMING
DUTY
(L-R) SP Asit Yadav and IGP
DC Sagar of Balaghat who
were removed

BUSINESS
T
HE sordid drama con-
cerning the unceremoni-
ous ouster of Cyrus
Mistry, chairman of Tata
Sons, the holding compa-
ny of the Tata group of
companies, ahead of
Diwali, is becoming murkier by the day. At a
board meeting on October 24, the Board of
Tata Sons moved a no-confidence move
against the sitting chairman, taking up the
matter under “other matters”. Six of the nine
directors present at the meeting voted for
the ouster, two abstained even as Mistry,
who was chairing the minutes protested.
Mistry’s protest that the matter was not
scheduled in the notice for deliberations, nor
his objection to receive a 15-days prior notice
as laid out under the Articles of Association,
was considered by the Board which had
armed itself with three opinions from legal
experts.
Tata Trusts, Sir Dorabji Tata Trust and Sir
Ratan Tata Trust, which controls 68 percent
of the equity in Tata Sons, obviously were
unhappy with the way in which Mistry had
been conducting himself as chairman of Tata
Sons during his almost four-year tenure. The
Trust chairman, Ratan Tata, was appointed
to take over as interim chairman of Tata Sons
to replace Mistry. The Board formed a five-
member committee under Ratan Tata to find
a replacement for Mistry within four
months. The group executive council,
formed under the aegis of Mistry, was dis-
The unseemly ouster of
Cyrus Mistry, chairman
of Tata Sons, has raised
questions about whether
he will take legal
recourse and if his
removal could have
been handled better
By India Legal team
TATA’S
Surgical
Strike
THE UNKIND CUT
Cyrus Mistry
40 November 7, 2016
UNI

M
arkets dislike uncertainties.
The expulsion of Cyrus Mistry
has apparently not gone down
well with markets with many of the Tata
group companies shedding ground.
Rationalists claimed that each of the
companies is run by independent
boards and Cyrus Mistry continues to
remain a Board member on Tata Sons
and other Tata companies. As a con-
sequence, the performance of the
companies is unlikely to be impacted.
The fear is whether Mistry would
continue to remain on the Board of
Tata companies or even Tata Sons.
They felt it would be like asking a
prime minister to step down and don
the hat of a cabinet minister! Would
Mistry of the Shapoorji Pallonji group,
which also holds 18 percent stake in
Tata Sons, cower and step down from
the various boards or would he fight a
long-drawn battle in court?
The second fear is over the appoint-
ment of an interim-chairman. Will an
interim-chairman, even if he was chair-
man for 20 years earlier, really take
serious decisions? Even if he did, are
they likely to be reversed after a new
chairman is appointed? Or will the new
KRA of the incumbent chairman/chair-
person lay out that decisions of the
interim-chairman are not subject to
review and cannot be reversed even
as he has to meet the God-like expec-
tations of all stakeholders?
Observers are worried as to how Mistry’s ouster will impact the performance of the Tata companies
Powersofinterim-chairman
banded with immediate effect and even ref-
erences and interviews of Mistry were
removed from the official sites.
MUCH PLANNING
On the face of it, this surgical corporate
strike, done with precision, looks rather
strange. It is obvious that a lot of planning
was done ahead of the execution and it was
not a knee-jerk reaction. Obtaining the opin-
ions of legal luminaries could not have been
done overnight. The Board was expanded
recently to accommodate three new mem-
bers. Two, Venu Srinivasan and Ajay
Piramal, were inducted on August 25 as non-
executive directors on Tata Sons Board. Amit
Chandra of Bain Capital, joined a couple of
days later to strengthen the Board which
comprised Cyrus Mistry, Vijay Singh, Nitin
Nohria, Ronen Sen, Farida Khambatta and
Ishat Hussain. The latter two abstained from
voting at the meeting on October 24. Ishat
Hussain, a Tata man handling group finan-
cial matters, not taking an open stand was
also strange, said corporate watchers.
Fears about Cyrus Mistry challenging the
legality of the action, under the Articles of
Association which mandates a 15-days
IN THE EYE OF A STORM
(From L to R) Tata Sons
chairman Ratan Tata;
Bombay House, the
corporate office of
Tata Sons
UNI

appointed to chair the meetings does not
really hold true in the case of Tata Sons, as he
is given vast powers and seen as a leader of
the Tata empire. He is the one who gives
direction and shape to the Group as also the
Group companies. One of the trustees of
Tata Trust publicly claimed that Cyrus
Mistry faulted on communicating key deci-
sions to the largest shareholder on several
occasions. He also claimed that the Trust did
not interfere with the day-to-day functioning
of Tata Sons as its interest was in ensuring
that sufficient surplus is generated to allow
Tata Sons to pay higher and higher dividends
to meet the Trust’s objectives.
There have been various reasons
attributed to justify the largest shareholder
to undertake the surgical strike,
with Ratan Tata also writing a letter to Prime
Minister Narendra Modi. The factors
include some of the decisions taken by
Mistry, which included closing of Tata Steel’s
UK plants, buyout of Welspun Solar unit by
Tata Power, sale of the Tata fertilizer unit,
sale of marquee properties of Indian Hotels,
putting in place a general council for advis-
ing, etc. Even allowing the escalation of Tata
Docomo’s affair was put forth as a cause for
getting the Tata name in disrepute. Mistry
not renouncing his Irish citizenship to take
an Indian citizenship was also a contributory
cause, according to a few newspapers!
The moot point is whether decisions
taken by Mistry were solo decisions
without consulting the boards of
various companies.
prior notice, promoted Tatas to file caveats (a
plea to hear them in case of any legal action
being taken before passing a judgment) in
various courts as also the Company Law
Tribunal. Till the time of going to press,
Mistry’s office had denied that a move had
been made.
The Company’s Act, 2013, does provide
provision for expulsion of a chairman who
has been appointed by the Board, as also one
appointed under the Articles of Association.
The honorable men on Tata’s Board would
have followed the procedure for the removal
so as not to get embroiled in legal hassles
over the removal. However, equity demands
that even an employee when he is removed is
given a chance to provide his defense. Was
the chairman of the $100 bn group shown
such courtesy?
MISTRY ERRS
Being an unlisted company, Tata Sons Board
is not obliged to justify its actions nor inti-
mate the reasons for the removal of the
chairman to various stock exchanges. One
view that a chairman is only a person
NEW ENTRY
Amit Chandra of Bain Capital joined
the Board recently
BUSINESS
FAMILY TREE
A file picture of Mistry
(extreme right) with
sisters Laila and Aloo,
brother Shapoor and
parents Pallonji and
Patsy Mistry
42 November 7, 2016

However, it is a moot point if these
decisions were solo decisions taken by
Mistry without consulting the boards of var-
ious companies. If they were truly board
decisions, why was Mistry singled out? Are
not the boards equally liable for their alleged
actions/inactions? Were the decisions taken
unpalatable to the largest shareholders,
Tata Trust or was it the style of functioning
and non-communication which led to
Mistry’s ouster?
GENESIS OF DOWNFALL
Mistry’s removal of Indian Hotels MD,
Raymond Bickenson, at the start of his
tenure had apparently not gone down well
with the old guard in Tatas. Though uncon-
nected, this was somewhat reminiscent of
the way Ratan Tata himself functioned in the
initial phase of his two-decades stint as
chairman of Tatas. He too had taken on the
so-called satraps of various companies in the
mid-80s and 90s.
However, there was a fundamental differ-
ence in the style of working of Ratan Tata
and Cyrus Mistry. While Ratan Tata was in
an empire-building mode, having expanded
the footprints of the Group globally through
marquee acquisitions, Mistry was more driv-
en by profits and not emotional attachment
to the assets, marquee or otherwise. Ratan
Tata, who was instrumental in bringing
Mistry to Tata Sons, and grooming him for a
year before he relinquished his post as chair-
man, obviously was not satisfied with
Mistry’s style of working.
Was Mistry belligerent? There were
unconfirmed rumors that he did not present
a five-year plan of his vision to the share-
holders of Tata Trust when asked to do so.
Nitin Nohria, who met him a day prior to the
October 24 Board meeting, had reportedly
warned him of the impending action and
suggested that he resign aforehand. A sug-
gestion which he politely turned down.
Mistry had apparently not lived up to the
expectations of the Board. A chairman don-
ning the hat of a CEO of a large group obvi-
ously has a lot of expectations riding on him.
Even assuming that living up to the
expectations is a part of the key responsibili-
ty area (KRA) of a leader, does the shortcom-
ing/inability to do so justify the Board taking
such an extreme step? Either Mistry should
have been given time to mend his ways or
given a chance of an honorable exit.
Mistry, meanwhile, has sent an email to
Board members saying he was “shocked” by
the way he was ousted, that the “Board has
not covered itself with glory” and he was not
given a chance to defend himself. He said his
removal was “unprecedented” in India.
A respectable group like Tatas which epit-
omizes corporate governance, could have
chosen a better way to remove Mistry rather
than adopting the public guillotine.
One may never be able to unravel the mys-
tery or even identify the real factors which
led to the honorable men at Tata to act the
way they did. If, as Ratan Tata claimed,
it was “in the interest of stability and reas-
surance to the Tata group” that he took over
as interim chairman, there must have
been really good reasons for the Board to act
as it did.
While the curtains have been drawn on
first part of the boardroom drama, things
could accelerate if Mistry chooses to seek
legal redress after carefully weighing the
opinions of his advisors. IL
It is obvious a lot of planning was done
ahead of the ouster move and it was not a
knee-jerk reaction. Legal luminaries could
not have been consulted overnight.
PURPOSEFUL MOVES
(L-R) Venu Srinivasan
and Ajay Piramal were
inducted on August 25
as non-executive
directors on
Tata Sons Board

India Legal 07 November 2016

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