India Legal 15 July 2016

NDIA EGALL
July 15, 2016 `100
www.indialegalonline.com
I STORIES THAT COUNT
64 76
MorphineMercy LegalTanglesafterBrexit
ByShobhaJohn BySajedaMomin
Neeta
Kolhatkar
Beach
security still
at sea
55
Dinesh C
Sharma
Contentious
water bills
46
Vivian
Fernandes
The GST
e-commerce
muddle
60
Forest
Policy
Groping in
the dark
40
Tumult
against
TALAQWomenreachouttotheSupreme
Courttobantheage-oldpractice
thatisagainsttheQuran,the
constitutionandnaturaljustice
ByRameshMenon24

tated with the ruling Congress party to bring in
legislation to negate the apex court’s ruling. This
triggered a chain of political events and the much-
publicized “Hindu backlash”, leading to the emer-
gence of a rejuvenated Bharatiya Janata Party.
Says Managing Editor Ramesh Menon: “There
has been incessant churning among Muslim wo-
men since then, and the cover story on Shayara
Bano whose petition challenging instantaneous
triple talaq has been accepted by the Supreme
Court, is one example of increasing numbers of
Indian Muslim women finding the courage to fight
for their legal rights in matters related to marriage
and divorce. No more, they say, shall they suffer in
silence.”
Thou shalt not suffer in silence when the law is
on thy side, also seems to be the message from the
Supreme Court in the case of disabled and physi-
cally challenged persons who are treated merci-
lessly by airlines. Passengers are de-planed, almost
thrown out, barred from entry, humiliated. Act-
ually, this is one of the most appalling stories
brought to my attention through this issue of the
magazine by Nayantara Roy. Read the first para of
this story and weep: “In a shocking incident on
February 19, 2012, Jeeja Ghosh, a passenger on
Spicejet flight SG 803 from Kolkata to Goa, was
summarily de-boarded as the pilot of the flight
deemed her a risk to the safety of other passengers.
Why? She had cerebral palsy.”
The redeeming feature of this is that she fought
back and the Court ordered the airline to pay her
`10 lakh as compensation. The judgment cited
several instances of other differently abled peo-
ple—including the visually impaired—who were
maltreated by airlines.
LETTER FROM THE EDITOR
OMETIMES by default, often by design—
especially when the editors have enough
advance time to plan ahead (which they
rarely have the luxury of doing while brin-
ging out editions of magazines every other
week on the net and in print)—we are able to put
to bed an issue with thematic synchronicity. The
stories may be different but are yet held together
by a delicate weave between the cover pages of the
magazine. The current issue of India Legal, I bel-
ieve, bears this stamp. Almost every story it con-
tains has a solid developmental, environmental or
social change value affecting the lives of women,
ordinary people and consumers caught in the
intricacies of socio-economic system which can
wreak havoc with human existence unless chal-
lenged by the law or unraveled by a simple act of
good governance.
Take our cover story, for instance. It touches on
an extremely sensitive issue—the religious cus-
toms and social mores of the Muslim community,
India’s largest minority. The subject is talaq
(divorce) or, rather, “triple talaq” in which by the
sheer utterance of this word thrice in a row a man
can instantaneously divorce his wife and cast her
into penury.
This is simplifying the matter, and you must
read the entire story to come to grips with the larg-
er picture on this canvas. But suffice it to say that
one of the largest socio-religious upheavals India
experienced after attaining independence centered
on this problem. In the mid 1980s, the Supreme
Court’s Shah Bano decision granting alimony to a
divorced woman so alienated a huge section of the
Muslim community which considered it an infr-
ingement on personal law that it successfully agi-
A
MOVEABLE
FEAST
INDERJIT BADHWAR
S
4 July 15, 2016

The stories
in this issue
of India
Legal may
be different
but are yet
held together
by a delicate
weave
between
the cover
pages of the
magazine.
are run purely for commercial considerations”.
There is some light at the end of this very dark tun-
nel—the Clinical Establishment Act of 2010 which
regulates private practice. But even today, the Act
is not operational because standards have not been
finalized. While huge legal gaps need to be filled,
action may be looming on the horizon, thanks to
the power of the book penned by doctors Arun
Gadre and Abhay Shukla.
Other stories in the issue which point to change
and transition on social and environmental issues
include a reversal by the government of an ill-con-
ceived policy which would blindly gift reserve for-
est land to private developers; a long overdue
report from the Consumer Education and Res-
earch Center, Ahmedabad, on clearing the logjam
of cases which clog the judiciary; the Delhi High
Court’s admonition to criminal courts to stop
harassing witnesses through needless postpone-
ments; the Supreme Court’s solid pro-health diktat
directing tobacco companies to display bigger
health warnings on their products; and last but
not least, a good-news story about how Pakistan’s
judiciary and Lawyer’s Movement, 2007-2009,
which played a seminal role in transforming the
Supreme Court’s role from junior partner to the
military and bureaucracy in times of crisis to a rel-
atively autonomous body exercising power.
And what about the pain and suffering of sick
patients? Can the law offer them any legal succor?
It can. And it has acted. Deputy Managing Editor
Shobha John chronicles stories of patients in ago-
nizing pain with end-stage cancer or other debili-
tating conditions whose horrible torment has been
eased somewhat by the administration of opiates
like morphine and other pain killers. Even though
opioids make life more bearable for those suffering
from pain, stringent jail terms and fear of addic-
tion means that few doctors prescribe them even
during the process of palliative care. A leading
doctor tells her that most doctors “have not even
seen a tablet of morphine”.
But there is a welcome amendment to the
Narcotics and Psychotropic Substances Act which
adopts a new category of “essential narcotic drugs”
in Section 2 (viiia) which notifies these drugs as
applicable uniformly in the country. This welcome
step negates the cumbersome necessity for obtain-
ing multiple state clearances.
P
atients’ rights is a subject of a new book
Dissenting Diagnosis reviewed and ana-
lyzed by Executive Editor Ajith Pillai. It
deals with the abysmal state of private medical
practice—or rather malpractice—in India. It
reveals, he writes, “a shocking story of medical
malpractice, gross negligence and financial
exploitation of patients at those hospitals which editor@indialegalonline.com
5INDIA LEGAL July 15, 2016

JULY15,2016
Turbulent Flight
The apex court has pulled up SpiceJet for forcibly deboarding a
disabled flyer and has asked it to pay her a compensation of `10 lakh.
NAYANTARA ROY
Three Times Unjust
The abhorrent practice of triple talaq is against the Quran and the Indian
constitution and women’s rights activists have been urging the Supreme
Court to ban it. RAMESH MENON
24
LEAD
12
Pandora’s Box
Will the Bombay High Court’s decision to okay Udta Punjab emasculate
the Censor Board and open the floodgates to sleazy, violent and ugly
cinema? BIKRAM VOHRA
34
16
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Editor
Inderjit Badhwar
Managing Editor
Ramesh Menon
Deputy Managing Editor
Shobha John
Executive Editor
Ajith Pillai
Bureau Chiefs
Neeta Kolhatkar, Mumbai
Vipin Kumar Chaubey, Lucknow
BN Tamta, Dehradun
Principal Correspondent
Harendra Chowdhary, Mathura
Reporters
Alok Singh, Allahabad
Gaurav Sharma, Varanasi
Associate Editors
Meha Mathur, Sucheta Dasgupta
Deputy Editor
Prabir Biswas
Staff Writer
Usha Rani Das
Senior Sub-Editor
Shailaja Paramathma
Sub-Editor
Tithi Mukherjee
Art Director
Anthony Lawrence
Deputy Art Editor
Amitava Sen
Sr Visualizer
Rajender Kumar
Graphic Designer
Ram Lagan
Photographer
Anil Shakya
Photo Researcher/News Coordinator
Kh Manglembi Devi
Production
Pawan Kumar
Head Convergence Initiatives
Prasoon Parijat
Convergence Manager
Mohul Ghosh
Technical Executive (Social Media)
Sonu Kumar Sharma
Technical Executive
Anubhav Tyagi
No Smoke without Fire
Last month’s SC order directing tobacco companies to display bigger
health warnings on products is a shot in the arm for anti-tobacco
campaigners. USHA RANI DAS
SUPREME COURT
MY SPACE
6 July 15, 2016

REGULARS
Edit ...............................................................................4
Quote-Unquote ............................................................8
Ringside .....................................................................10
Supreme Court...........................................................21
Courts.........................................................................22
Is that Legal?..............................................................23
National Briefs......................................................33, 39
Campus Update.........................................................59
Figure It Out ...............................................................63
International Briefs......................................................69
Well-meaning but vague, the National Water Framework Bill
and Model Bill for Conservation, Protection and Regulation of
Groundwater leave key decisions to the central government.
DINESH C SHARMA
Post the referendum to leave the EU, Britain is caught in legal tangles
that must be unraveled to ensure a fresh start for it. SAJEDA MOMIN
Has Brexit Led to Bregret? 76
FollowusonFacebook.com/indialegalmedia
andTwitter.com/indialegalmedia
46
The center has hastily
disowned its draft forest policy
which, if passed, would have
cleared the decks for
commercialization at the cost
of ecology. RAMESH MENON
40Area of Darkness
Troubled Waters
56
A new book by two doctors calls for the implementation of the
Clinical Establishment Act to regulate the private medical sector
and stop the financial exploitation of patients. AJITH PILLAI
Healing the Health Sector 50
ACTS & BILLS
A report by the Consumer Education and Research Centre
suggests ways to clear the logjam of cases that clogs our judiciary.
Is the government listening? KIRTI BHATT
Reforms without tears
GLOBAL TRENDS
Though the Narcotic Drugs and Psychotropic Substances Act has
been amended to make morphine accessible to those suffering from
extreme pain, jail terms and fear of addiction by patients stop doctors
from prescribing it. SHOBHA JOHN
Shoot Me Up 64
80
MEDICINE
Despite a top court order to the contrary, Bihari migrants in
Bangladesh continue to live in misery, perceived as they are as
stranded Pakistani citizens. PRAKASH BHANDARI
The Nowhere People
Cover Design: ANTHONY LAWRENCE
Cover Picture: GETTY IMAGES
DIPLOMACY
LEGAL EYE
The government has
outsourced tax collection
to e-commerce cos. But it
is a moot question whether
its benefits will be passed
on to the customer.
VIVIAN FERNANDES
Fillip for
E-Biz
60MARKETS
70Christophe Jeffrelot and Philip Oldenburg examine the challenges
that our neighbor faces from within and outside, and the role of the
judiciary in shaping polity in the country
Pak’s Judicial Milestones
BOOKS

While I was open to seeing these
developments (new monetary policy
framework and cleaning up of bank
balance sheets) through, on due
reflection, and after consultation with
the government, I want to share with
you that I will be returning to
academia... I will, of course, always
be available to serve my country
when needed.
—RBI Governor Raghuram Rajan, in his
message to RBI staff, announcing his exit
Mother Teresa was part of a
conspiracy to convert
Hindus to Christianity.
Hindus were targeted in the
name of doing service and
then converted by her.
—Yogi Adityanath at a religious
meeting in Basti, in
The Economic Times
We are losing one of the most
skillful financial economic thinkers in
the world. It is sad for the country
and it is sad for the government of
the country too. RBI is not a
completely autonomous institution.
—Economist Amartya Sen, on RBI
Governor Raghuram Rajan’s decision not to
ask for a second term, to a private TV channel
To share a secret, I always
wanted to be a fighter pilot but
when we joined the option was
not there. So when it came to
us in December 2015, I knew I
was going to grab it with both
my hands.
—Bhawana Kanth, one of
the three women combat
pilots recently inducted
in the Indian Air Force,
in India Today
While shooting, during those
six hours, there’d be so much
of lifting and thrusting on the
ground involved… When I
used to walk out of the ring,
after the shoot, I used to feel
like a raped woman. I
couldn’t walk straight.
—Salman Khan, relating his
experience while shooting
for Sultan, to
mediapersons
8 July 15, 2016
Yoga is bringing the rhythm
in life. Yoga is feeling the
connection with oneself.
And with everyone around.
Yoga is aspiring for the
highest goal of the world
as one family. And unity
with the infinity.
—Art of Living Foundation
founder Sri Sri Ravi Shankar, while
Inaugurating the second edition of
the International Yoga Day, at the
European Parliament, in Brussels
QUOTE-UNQUOTE
People giving me unasked for advise of
discipline and restraint don’t realize that
if I disregard discipline there would be
a bloodbath.
—BJP MP Subramanian Swamy, on
feelers that senior BJP members
were not happy with his
intemperate remarks against
finance ministry mandarins,
in The Times of India

It is difficult to make our material condition better by the
best law, but it is easy enough to ruin it by bad laws.
—Theodore Roosevelt, US president from 1901-1901
VERDICT
10 July 15, 2016
Aruna

The apex court recently
asked SpiceJet to pay a
compensation of `10 lakh to
a disabled passenger it
had de-boarded. Will this
pave the way for a more
humane treatment of
the differently-abled?
By Nayantara Roy
Fight the Flight
I
N a shocking incident on
February 19, 2012, Jeeja Ghosh, a
passenger on SpiceJet flight SG
803 from Kolkata to Goa, was
summarily de-boarded as the
pilot of the flight deemed her a
risk to the safety of other passen-
gers. Why? She had cerebral palsy.
She is not the first disabled passenger to
be treated thus. This, when she had checked
in at the airline counter without any assis-
tance and had gone through the security pro-
cedures and walked into the aircraft on her
own. This head of Advocacy and Disability
SUPREME COURT/ Disabled Rights
12 July 15, 2016
GUTSY CHANGEMAKER
Jeeja Ghosh (right) won a
legal battle against SpiceJet
for de-boarding her on the
flimsy ground that she suffers
from cerebral palsy
Facebook

Studies at the Indian Institute of Cerebral
Palsy in Kolkata (IICP) was physically
removed from the plane in a humiliating
manner. Ironically, the conference she was
supposed to attend in Goa—North-South
Dialogue IV—had a special focus on people
with disabilities and their families. Needless
to say, Ghosh missed the conference. For the
“inconvenience” caused, the airline offered to
refund the fare, after deducting `1,500 as
cancellation fee. How is that for sensitivity?
PAY DAMAGES
But spunky Ghosh along with NGO ADAPT
(Able Disable All People Together) filed a PIL
in the Supreme Court. And on May 12, 2016,
the apex court gave a judgment that would
gladden the hearts of many. In the Jeeja
Ghosh and Ors vs Union of India and Ors,
the judges ordered SpiceJet to pay damages
of `10 lakh to Ghosh for the trauma inflicted
on her. The Court went into a detailed reex-
amination of the Directorate General of Civil
Aviation’s Civil Aviation Requirements
(CAR) in respect of Carriage by Air of
Persons with Disability and/or Persons with
Reduced Mobility.
The judges emphasized the need to
change how disability should be perceived as
opposed to how it is perceived. It said that in
traditional societies, disability has been per-
ceived as a health and welfare issue. “The dis-
abled persons are viewed as abnormal,
deserving of pity, and not as individuals who
are entitled to enjoy the same opportunities
to live a full and satisfying life as other mem-
bers of society. This resulted in marginalizing
the disabled persons and their exclusion both
from the mainstream of the society and
enjoyment of their fundamental rights and
freedoms… Because the emphasis is on the
medical needs of people with disabilities,
there is a corresponding neglect of their
wider social needs, which has resulted in
severe isolation for people with disabilities
and their families.”
The judgment cited instances of other dif-
ferently abled persons who were mistreated
when flying—“Mr Tony Kurian was repeated-
ly denied the right to purchase tickets on an
Indigo flight because he is visually impaired.
Ms Anilee Agarwal was recently forced to
sign an indemnity bond before she could fly
from Delhi to Raipur on Jet Connect, threat-
ened with being ‘body-lifted’ by four male
flight crew members, and finally ‘thrown
down the steps’ in an aisle chair when she
refused to be carried by hand. Mr Nilesh
Singit was told by a SpiceJet captain that he
was not allowed to fly with his crutches, and
has been asked to sign indemnity bonds on
numerous occasions.”
INSENSITIVE LOT
There have been other similar instances else-
where in the world. According to news
reports, in August 2015, a 32-year-old dis-
abled British passenger was asked to get off a
British Airways flight from Heathrow to the
US for “health and safety reasons”. Emily
Ladau was flying from New York to
Minnesota to attend a conference on disabil-
ity. Her wheelchair had been checked in, but
when the flight landed, the wheelchair could-
n’t be found. Blissfully unaware of the
absurdity, airline personnel actually asked
her to walk to the baggage claim to locate it!
Worse still, another passenger, D’Arcee
Airline staff is cognizant of the pilot’s authority
to de-board a passenger he may consider a
hazard. But CAR 4.1 clearly states “no airline
shall refuse to carry persons with disability”.
TURBULENCE
SpiceJet fliers stranded in
Chennai airport following
the airline temporarily
grounding its flights
UNI

Neal, suffering from cerebral
palsy, had to crawl off his
flight because United
Airlines personnel delayed
bringing him a wheelchair.
Airline staff is fully cog-
nizant of the pilot’s authority
to de-board a passenger he
may consider a hazard.
However, CAR 4.1 categori-
cally states: “No airline shall
refuse to carry persons with
disability or persons with
reduced mobility and their
assistive aids/devices, escorts
and guide dogs including
their presence in the cabin.” CAR 4.6 which
says that many persons with disabilities do
not require constant assistance for their
activities and therefore, if the passenger
“declares independence in feeding, commu-
nication with reasonable accommodation,
toileting and personal needs, the airlines
shall not insist for the presence of an escort”
appears to have been forgotten that day.
Ghosh did not require assistance, apart
from some help with her baggage. She did
not have any aids/devices, escorts or guide
dogs. As a young student
staying in a hostel in Delhi
University, she had travelled
all over the city in DTC buses.
Therefore, nothing would
have prepared her for the
reaction of airline staff.
Cerebral palsy only makes
her speech unclear and her
movements strained.
In fact, cerebral palsy is
defined in the Persons With
Disabilities Act, 1995 as “a
group of non-progressive
conditions of a person char-
acterized by abnormal motor
control posture resulting from brain insult or
injuries occurring in the pre-natal, perinatal
or infant period of development”. Lack of
knowledge on the part of airline staff and
their fear of the unknown caused them to
deny a passenger her fundamental right to
equality under Article 14 and her right to live
with dignity.
An old school teacher of Jeeja who did not
want to be identified, explains that cerebral
palsy conditions vary from person to person.
One person may lurch a little while walking,
14 July 15, 2016
Lawscited
In the Jeeja Ghosh case, the
following laws were cited:
Indian:
Constitution, Articles 14
(Right to equality) and 21
(Right to life)
The Civil Aviation
Requirements 2008 under
the Carriage by Air Act,
1972 were amended as per
the Ashok Kumar
Committee Report and are
now the Civil Aviation
Requirements, 2014
Persons with Disabilities
(Equal Opportunities,
Protection of Rights
and Full Participation)
Act, 1995
International:
United Nations
Convention on the Rights
of Persons with Disabilities
(UNCRPD), (which India
ratified in 2007). Articles 5,
9, 9(2)
The Vienna Convention
on the Law of Treaties,
1963
Biwako Millenium
Framework for Action
Towards an Inclusive,
Barrier-Free and Rights-
Based Society for Persons
With Disabilities in Asia and
the Pacific, published in
2002 and signed by India
WE HAVE A VOICE
Disabled persons
demand inclusion of their
rights in election
manifestos of various
political parties
SUPREME COURT/ Disabled Rights
UNI

IL
to make changes to accommodate some
of these.
The Court had the last word on this
issue. It said: “What non-disabled people do
not understand is that people with disabili-
ties also have some rights, hopes and aspira-
tions as everyone else. They do not want to
depend on others. They want to brave their
disabilities. They want to prove to the world
at large that notwithstanding their disabili-
ties they can be the master of their own
lives. They can be independent. They can be
self-reliant. They do not want sympathies
of non-disabled. They want to be trusted.
They want to be treated as valued member
of the society who can contribute to
the development and progress of the
society. For this they want the proper envi-
ronment to grow. Our society automatically
underestimates the capabilities of people
with disabilities. People with disabilities
want this change in the thinking of non-dis-
abled. It is the thinking of Disability Rights
Movement, USA that it is not so much the
disabled individual who needs to change,
but the society.”
another may not be able to walk at all. There
can be lack of clarity in speech which could
be accompanied by uncontrolled motor
movements. She said: “All of us have our
peculiarities, who is to say we’re normal?”
Incidentally, Ghosh has yet to receive the
compensation from SpiceJet, though the air-
line has two months to comply.
ASHOK KUMAR COMMITTEE
In an attempt to close the “gap between the
law and reality”, at least in the carriage by
air of disabled passengers during the course
of the litigation, a committee was appointed
by the government to examine and amend
CARs. The “Ashok Kumar Committee”
made several suggestions to improve the
CARs such as widening the definition of
persons with reduced mobility, establish-
ment of Standard Operating Procedures for
all service providers and adequate
training and sensitization of not only airline
staff but also security personnel. Many
problems also occur during security checks
especially with assistive devices, battery
operated wheelchairs, web-enabled book-
ing, in-flight briefing and evacuation of
such persons. The Committee suggested
that a mechanism for grievance redressal
be implemented.
Some of the Committee’s suggestions,
not addressed in the amended CAR 2014,
were brought to the notice of the Court.
Eventually, it directed the respondents
Ghosh did not require assistance, apart from
some help with her baggage. As a young
student staying in a hostel in DU, she had
travelled all over Delhi in DTC buses.
Regarding the incident of Jeeja
Ghosh, a SpiceJet spokesman
told India Legal that the incident
took place under the previous manage-
ment and that the airline follows DGCA
and International Civil Aviation
Organization rules.
He added that the pilot has the dis-
cretion to de-board unaccompanied
passengers with disability if he feels
that there may be a problem. “Over the
last two years, via the yearly, scheduled
CRM (Crew Resource Management)
classes, all pilots and cabin crew of
SpiceJet have been sensitized on how
to interact with and assist ‘Differently
Abled Passengers’ under ICAO guide-
lines.” These include visually impaired,
mobility impaired, hearing impaired and
those with cerebral palsy. “The crew
are taught how to facilitate the journey
of these passengers so that they have
a comfortable flight,” he said.
As to when Jeeja would get com-
pensation, he said they would hand it
over to her soon.
“SpiceJetfollowsDGCArules”
VINDICATED!
Ghosh relaxes at
home with her mother
Facebook

SUPREME COURT/ Tobacco Menace
P
ICTORIAL warnings on its
product packaging always
made the tobacco industry
see red. So it came as no
surprise that alarm bells
started ringing after the
May 4, 2016 Supreme Cou-
rt directive to tobacco manufacturing com-
panies to comply with the rule that made it
mandatory to display health warnings on
both sides of the tobacco products, covering
The SC’s order last month directing
tobacco companies to display bigger
health warnings on their products is a
shot in the arm for those campaigning
against nicotine abuse. The industry’s
plea against it has very few takers
By Usha Rani Das
BiggerPictures,
BetterWarnings
Anil Shakya
16 July 15, 2016

nearly 85 percent of the packaging area. The
apex court bench of Justice PC Ghose and
Justice Amitava Roy observed: “Tobacco
manufacturers have a duty towards the soci-
ety… bigger pictorial warnings on tobacco
products are necessary to educate people.
They should know about its effect on health.”
It also vacated all stay orders by other courts
vis-a-vis 85 percent pictorial warnings.
The Supreme Court’s directive came fol-
lowing a petition filed by the Karnataka
Beedi Association for a stay on a government
notification of 2014 which should have come
into effect from April 2016, but was stalled
due to the legal hurdles put up by the indus-
try. The tobacco manufacturers’ argument
was that the trademark and brand names
would become too small on a pack dominat-
ed by 85 percent health warnings. This, in
turn, would impact sales and the lives of mil-
lions dependent on the tobacco trade for
livelihood. The Beedi Association’s plea was
that the warnings be restored to cover only
40 percent of the packaging size. This, inci-
dentally was the norm till the Cigarettes and
Other Tobacco Products (Packaging and
Labelling) Amendment Rules 2014 was noti-
fied which enhanced the size of the warnings.
PLEA DISMISSED
The Court, while dismissing
the Karanataka Beedi Asso-
ciation’s plea, made this
observation: “Tobacco man-
ufacturers have a duty to-
wards the society… bigger
pictorial warnings on tobacco
products are necessary to
educate people. They should
know about its effect on
health.” The government’s
justification for increasing
the size of the warnings has
been one that has found
much approval from anti-
tobacco and health activists.
Their point is that larger
pictorial warnings would be
the only way to effectively
communicate the hazards
of tobacco abuse to the
illiterate.
In fact, the October 15, 2014, government
notification makes the point that the visual
warning must dominate the written one: “A
pictorial representation of the ill effects of
tobacco use on health shall be placed above
the textual health warning, covering 60 per-
cent of the principal display area of the pack-
age.” The amended rules immediately trig-
gered a controversy on whether larger picto-
rial warnings on cigarettes, gutkha, beedi
and other tobacco products can deter
abusers? The apex court seems to have
resolved the argument keeping in mind “the
larger public interest”.
The Court’s decision was a victory of sorts
for the anti-tobacco campaigners. As for the
industry, it has been fighting a losing battle
ever since 2009 when a government notifica-
tion made pictorial warnings mandatory. A
year before that smoking in public places was
banned across the country. The argument
put forward by the industry has always
focussed on the economic implications of any
fall in their business.
INDUSTRY’S RESISTANCE
Since 2009, the industry has alleged that any
kinds of pictorial warnings would adversely
affect the livelihoods of tobacco growers
SPREADING THE MESSAGE
Doctors at an awareness camp
on “World No Tobacco Day”,
in Patna
The industry’s
claim that
pictorial
warnings would
adversely affect
the livelihoods
of tobacco
growers and
workers is
specious. The
production of
tendu, beedi
tobacco,
and cigarettes
has actually
gone up.
UNI
INDIA LEGAL July 15, 2016 17

and workers. It has been repeatedly stressed
that as the Indian beedi industry is the third-
largest employer after agriculture, its decline
would lead to mass unemployment. But this
argument seems to be specious as the pro-
duction of tendu, beedi tobacco, and ciga-
rettes has increased year on year, even after
printing of pictorial images on packaging
started.
“The arguments given earlier by tobacco
companies are all baseless now,” Binoy
Matthew of Voluntary Health Association of
India (VHAI) told India Legal. He also rub-
bished the plea by the industry that illicit
trade of tobacco products has increased since
pictorial warnings were introduced. “This is a
myth perpetuated by the industry. Factors
that determine illicit trade include the gov-
ernment’s inability to enforce tax measures
and collect duties, the ease and cost of smug-
gling tobacco into a country and the extent of
the tobacco industry’s participation in such
trade activities. As a matter of fact, promi-
nent pictorial warning on tobacco products
will enable enforcement agencies to identify
illegal/smuggled cigarettes and help them
seize non-compliant products,” said Binoy.
A recent study by the All India Institute of
“Prominent
pictorial warnings
on tobacco
products will
enable
enforcement
agencies to
identify
illegal/smuggled
cigarettes and
help them seize
non-compliant
products.”
—Binoy Matthew of
Voluntary Health
Association of India
A look at the
court verdicts,
regarding the
pictorial
warnings, over
the years:
2003: Under the
Cigarettes and other
Tobacco Products Act,
2003, (COTPA), every
tobacco product is to
have a specified health
warning that is legible,
prominent and conspicu-
ous in size and color and
in the same language as
that on the tobacco pack.
2006: The
government says
that each pictorial
warning must include
skull and bone signs
on the pictures.
Warnings should
cover 50 percent of
the principal
display area/s of the
pack. Warnings
should be rotated
every 12 months.
Use of misleading
terms (light, mild,
ultra-light) and
descriptors were
prohibited. Health
warnings to be
implemented by
February 2007.
2007: The indus-
try objects to the
“dead body” picture.
A Group of Ministers
(GoM) headed by
then external affairs
minister Pranab
Mukherjee fails to
come to a final deci-
sion on the “skull
and crossbones”. It
is made optional.
Later in 2007,
the “dead body”
picture is removed,
and so is the “skull
and crossbones”
symbol from all
labels. The GoM
also tries to dilute
the earlier “repul-
sive” pictures and
suggests
softer/milder pic-
tures.
Picture
politics
Anil Shakya
18 July 15, 2016

Medical Sciences quoted in the journal,
Tobacco & Nicotine Research, says that pic-
torial warnings do have a positive effect in
deterring smoking, especially among the
young. According to Binoy, large and promi-
nent health warnings have also shown to be a
cost-effective means of increasing public
awareness of the health effects of tobacco use
and in reducing tobacco consumption.
It helps in spreading awareness among
the illiterate.
PLAIN PACKAGING
It is not only Binoy who is lobbying for the
cause. Plain packaging was taken as the
theme of this year’s “World No Tobacco Day”
by the World Health Organization (WHO).
This restricts or prohibits the use of logos,
colors, brand images or promotional infor-
mation on packaging, other than brand
names and products names and is to be dis-
played in a standard color and style.
According to WHO, the plain packaging less-
ens the attractiveness of tobacco products,
limits misleading packaging and labelling
and increases the effectiveness of health
warnings.
Countries across the world have started
implementing plain packaging. Australia was
the first to do so in 2012. Ireland, the UK and
Northern Ireland, and France joined the clan
in 2015 by passing laws to implement plain
packaging from May 2016.
If you look at the larger picture, tobacco is
an enormous health and economic burden
for India. Reportedly, nearly 10 lakh Indians
die annually (about 2,700 daily) from tobac-
co-related diseases in the country. Fifty per-
cent of all cancers in India are due to tobacco
consumption. The highest numbers of oral
cancer cases in the world occur in India and
90 percent of these are tobacco-related. Its
abuse is a leading cause of tuberculosis-relat-
ed mortality in India. A staggering `1.04 lakh
crore is spent on healthcare costs to treat
tobacco-related diseases. According to the
International Tobacco Control Project esti-
mates, India will record 1.5 million tobacco-
related deaths annually by 2020.
VESTED INTERESTS
Given the health issues involved, why did it
take two years and a court order for the
government to implement a Union Health
Ministry’s October 15, 2014 notification
on increasing the size of the pictorial
2008: The GoM
decides to replace
both sets of the previ-
ously notified pictures
with three smaller
images—an X-ray
picture of a human
chest (to suggest
tuberculosis), a
deceased lung and a
scorpion to symbol-
ize cancer. Also, the
size of the new pack
warnings is reduced
to 40 percent of one
principal
display area.
2010: The Health
Ministry issues a
notification to intro-
duce a new set of
pictorial health
warning images for
implementation by
June 1, 2010.
2011: The
Supreme Court of
India asks the
health ministry to
explain why it
deferred the warn-
ings that were
announced in
March 2010.
Unfortunately, the
case doesn’t come
up for hearing.
2014: The then
health minister, Dr
Harsh Vardhan, issues
a notification making it
mandatory for tobacco
companies to display
pictorial health warn-
ings on 85 percent of
the principal display
area of all tobacco
packs.
2015: On
September 24, 2015,
the government noti-
fies April 1, 2016 as
the date for enforce-
ment of the Cigarettes
and Other Tobacco
Products (Packaging
and Labelling)
Amendment Rules,
2014, that requires
display of 85 percent
health warnings on all
tobacco product
packages.
2016: The Supreme
Court dismisses the
petition for stay on the
implementation of the
notification.

warnings? It is alleged that it dragged its feet
because of pressure from the powerful tobacco
lobby. This explains why it referred the notifi-
cation to the Parliamentary Committee on
Sub-ordinate Legislation with an objective to
have wide-ranging consultation with stake-
holders such as the tobacco farmers, manufac-
turers, retailers and concerned ministries in
order to assess the impact of the enhanced
pictorial warnings on farmers, workers and
the tobacco industry.
Matthew alleges that “it is because of the
vested interests of some members of parlia-
ment that it took two years to implement a
simple rule that is proving to be the most
effective so far in combating the health risks of
tobacco”. Indeed, the Committee, among
whose members is Allahabad MP Shyama
Charan Gupta, who owns a beedi empire,
seemed sympathetic to the industry’s cause.
Its recommendation was that the
increase in the size of pictorial warning must
be limited to 50 percent on both sides of the
cigarette packs. It was softer on beedis and
other tobacco products: “The Committee
strongly feels that the government needs to
reconsider its decision to cover bidi industry
under the amended rules and recommends
that a practical approach in the matter may
be adopted by increasing the size of warning
up to 50 percent on one side of the bidi pack,
chewing tobacco and other tobacco products,
namely zarda, khaini, misri etc which will be
feasible to follow and which would also
ensure that a large number of people in the
trade will be saved from being rendered
unemployed.”
The courts stepped in when Rahul Joshi,
an advocate from Jaipur, filed a PIL in the
Rajasthan High Court demanding the imple-
mentation of the 2014 rules. Subsequently,
the central government gave a commitment
that the rule would be implemented by April
2016. The Karnataka Beedi Association had
filed a plea in the apex court praying for a
stay. But its plea was rejected, thus clearing
the decks for larger pictorial warnings. Yes,
smoking is indeed injurious to health. IL
CRUX OF THE PROBLEM
(Right and below) Those who
consume tobacco products
put their health to great risks
UNI
20 July 15, 2016

SUPREME COURT
The Supreme Court did not offer relief to
animal rights activists’ against a cen-
ter’s notification that had permitted killing
of Nilgais in Bihar, monkeys in Himachal
Pradesh and wild boars in Uttarakhand. The
center had declared all these animals in the
respective states as “vermin”.
Normally, it is illegal to kill wild animals
under the Wildlife Protection Act. But once
declared “vermin” by the government,
these can be culled. This happens when
the animals become a nuisance attacking
crops, property and even people.
The apex court did not grant a stay on
the notification, but made it clear that ani-
mals can be killed only when they enter
into human habitation. But it will hear the
activists’ petitions and posted the matter
for July 15.
The Court also asked the petitioners to
approach the respective state governments
and the center with their objections. It dir-
ected the center to respond to the issues
raised by activists within two weeks.
The center can, under Section 62 of the
Wildlife Protection Act, declare a protected
animal as “vermin” for any area or period
as specified in its notification. The activists
had challenged the Section itself, arguing
that it gave arbitrary powers to the center
to allow reckless killing of animals.
No stay on
culling animals
The Supreme Court recently
interpreted the Right of Private
Defense under Section 97 of the
IPC. The Court observed that it
was not a crime to assault some-
body in retaliation when parents or
relatives were being attacked. It
ruled that such an action would be
treated as “private defense’.
The case in question concerned
two brothers who had been held
guilty by the trial court for beating
up their neighbors in a village. The
lower court held them guilty of
attempt to murder.
The Rajasthan High Court rati-
fied the verdict of the lower court
and even awarded two-year rigor-
ous imprisonment.
While acquitting them of all
charges, the apex court pointed
out that the prosecution did not
disclose the origin of the fight. The
apex court felt that it would be just
to give the benefit of doubt to the
brothers, considering the injuries
suffered by them and the fact that
the father died due to the assault.
APIL was recently filed in the Supreme
Court for banning WhatsApp. Sudhir
Yadav, an RTI activist from Haryana contend-
ed in his petition that the end-to-end encryp-
tion technology used by WhatsApp made it
virtually impossible to intercept messages,
and terrorists could easily take advantage
and share information, inimical to the coun-
try’s security. The intelligence agencies
would be rendered helpless as they could in
no way tap into the messages and decrypt-
ing a single 256-bit encrypted message
would take hundreds of years, he argued in
his petition. The petitioner further pointed out
that even if asked WhatsApp itself could not
“break through” such messages.
The matter was scheduled to be exam-
ined by the Court on June 29.
PIL to ban WhatsApp
—Compiled by Prabir Biswas, Illustrations: UdayShankar
Interpreting right to
private defense

COURTS
Public witnesses can’t be allowed
to suffer just because hearings in
courts on criminal cases are
adjourned repeatedly, the Delhi High
Court observed. It pointed out that
frequent postponements of hearings
compel witnesses to appear in
courts again and again, which is a
major disincentive for them to help
law-enforcement agencies in crimi-
nal cases.
The court held that this tendency
of criminal courts may discourage
them from rendering “crucial” help to
the police and the judiciary, especia-
lly in cases where they have seen
the crime. As it is, witnesses spend
a lot of time and effort on joining the
investigation process before they
appear in courts.
It wanted the criminal courts to
be quick in recording the testimony
of the witnesses and relieve them at
the earliest, and also not to adjourn
hearings on flimsy grounds.
The remarks were made by the
Court while it was hearing a
conviction challenge under the
Narcotic Drugs and Psychotropic
Substances Act.
Stop harassing witnesses
Mallya,a
“proclaimed
offender”
Fugitive liquor baron
Vijay Mallya was
named a “proclaimed
offender” by a special
Prevention of Money
Laundering (PMLA)
court, recently.
The Enforcement
Directorate wanted the
proclamation so that it
could bring the business-
man back to India from
London, where he is bel-
ieved to have fled to es-
cape the arms of the law.
The agency wanted
Mallya to join a probe
related to the alleged
money laundering by him
in the `900 crore loan
taken from IDBI.
Mallya flew to London
after the PMLA court
issued a non-bailable
warrant in the case.
The much-awaited verdict
on the quantum of sen-
tence for the 24 convicts in
the 2002 Gulbarg massacre
case was announced
recently by the special SIT
court in Ahmedabad. Eleven
people received life impri-
sonment, 12 were awarded
seven-year jail terms and
one was sent to jail for 10
years. No capital punish-
ment was awarded in the
case as the court observed
that the offense could not be
called “rarest of the rare”.
Former Congress MP
Ehsan Jafri was one of the
69 people killed by a ram-
paging mob. The Court had
earlier on June 2 held 24
people guilty and acquitted
36. Sixty people were held
accused for the crime.
Observing that the con-
victed persons should be
given an opportunity to
reform, the court saw rea-
son in the argument put by
the defense that the mob
reacted violently only after
Jafri fired on it.
Realizing that a tenant could
manage to occupy a prop-
erty for close to four decades
and even delay the case for
such a long period, the Madras
High Court observed that rent-
control laws must be revised.
The man in question was a
Chennai tenant, VG Naidu, who
was first asked to pay rent
arrears by October 14, 1977 by
a lower court. When he did not
do so, the owner moved
court again and got an
order in January 1978 to
get the property vacated. As
Naidu did not comply, the
owner went to the court
again which reiterated its
verdict in February 1990. The
owner then sold the house.
The second owner appealed
to the lower court for carrying
out its 1990 order. But Naidu
claimed that he had no legal
right to evict him. The Court
rejected Naidu’s contention,
slapped a fine of `50,000 and
asked him to vacate the pro-
perty within 15 days.
Rent laws need reform
Sentence for
Gulbarg convicts
— Compiled by Prabir Biswas: Illustrations: UdayShankar
22 July 15, 2016

IS THAT LEGAL?
What is the difference between
theft and robbery?
Section 378 defines theft: “Whoever,
intending to take dishonestly any
movable property out of the posses-
sion of any person without that per-
son’s consent, moves that property in
order to such taking, is said to com-
mit theft.”
As per Indian law, under “theft”,
the taking of property may be “tem-
porary” but should be only of mov-
able property. Immovable property
means land and anything attached to
it. The moment it is severed, it
becomes movable property. For
example, if standing crops or trees
are cut from their roots and taken
away, that becomes movable prop-
erty and a subject matter of theft.
Section 390 defines robbery: “In
all robbery, there is either theft or
extortion.” Robbery is an aggravat-
ed form of theft and extortion.
The chief distinguishing feature is
the presence of imminent fear of
violence. For example, in the
instance of chain-snatching,if the
victim is slapped or beaten up, the
clauses of robbery are invoked.
If a person kills someone with the
intention of causing death but for the
purpose of self-defense, is he/she liable?
Self-defense is the first rule of criminal
law. The right to private defense is
absolutely necessary for the protection of
one’s life and property. As per Sections 96-
106 that pertain to the right to private
defense, use of force against an assailant or
a wrong-doer is legally permissible when
immediate state aid cannnot be procured.
Section 96 lays down the general
proposition that “nothing is an offense
which is done in the exercise of the right to
private defense”.
Section 100 provides that the right to
private defense extends even if it causes
death or any other harm to the assailant
under the following six circumstances:
The assault causes reasonable apprehen-
sion of death.
There is apprehension of grievous hurt.
The assault is with the intention of com-
mitting rape.
The assault is with the intention of grati-
fying unnatural lust.
The assault is with the intention of kid-
napping or abduction.
The assault is with the intention of
wrongfully confining a person.
In the Viswanath v State of UP case, the
accused saw his sister being abducted by
her estranged husband, his brother-in-law.
The accused stabbed the brother-in-law.
The trial court acquitted him whereas the
High Court convicted him. The Supreme
Court set aside the HC verdict.
A loyal and hardworking employ-
ee of a company dies of heart
attack after reading his unexpect-
ed termination letter. Can the
family claim damages?
The family cannot claim damages
as there is neither intention nor any
knowledge of causing death in the
above case.
Section 299 gives the definition
of culpable homicide: “Whoever
causes death by doing an act with
the intention of causing death, or
with the intention of causing such
bodily injury as likely to cause
death, or with the knowledge that
he is likely by such act to cause
death, commits the offense of cul-
pable homicide.”
For criminal liability to be direct
and distinct, the causal connection
between the act and death need not
necessarily be immediate, but it
must not be too remote either.
Some obscure connections
between the act and the death are:
Mother dies as son fails exam; an
employee commits suicide because
boss does not raise his salary; an
emotional cricket fan dies of a heart
attack when India loses and so on.
Connection between cause (act)
and effect (death) may be definite
and obvious, but is impossible to
prove.
Death is too remote and improba-
ble as a consequence of the act,
i.e. the act does not usually
cause death.
Self-defense is a
necessity at times
Illustrations: Uday Shankar
Robbery is a stronger
form of theft
Can death due to a termination letter
lead to compensation?
—Compiled by Mishika Chowdhary

NO,NO,NO!
I
T’S remarkable how courage can
suddenly erupt in completely
ordinary lives constrained by
numerous fears and inhibitions,
to become the foundation for
turning points in history. Some-
times, it just takes a lone trigger
to spark that act of courage. When Shayara
Bano, who had been married for 14 years,
saw a letter in the post from her husband,
Rizwan Ahmed, she thought he must be ask-
ing her to return to him after he dropped her
LEAD/
Amitava Sen
Instantaneous triple talaq is against the
Quran, the Indian constitution and a
woman’s human rights. Spurred by
a lone Muslim woman’s charge, a
brigade of activists and supporters is
urging the Supreme Court to ban this
“abhorrent practice”
By Ramesh Menon
24 July 15, 2016
Triple Talaq

off at her parents’ home in Kashipur,
Uttarakhand. But the letter just had three
words: Talaq, talaq, talaq.
In seconds, her world crumbled. Slowly,
haunting images of her husband indulging in
consistent domestic abuse, forcing her to
undergo half-a-dozen abortions and threat-
ening her with divorce time and again
returned. Images those 14 years had piled up.
She also remembered how she had been a
simple, happy girl studying sociology in
Uttarakhand before she got married. She
does not know how she summoned up such
courage, but she decided to put up a fight.
This February, she filed a case in the
Supreme Court seeking a ban on triple talaq
as it is usually practiced in India. She is now
fighting for thousands of other Muslim
women who had been similarly wronged and
is also challenging the male-dominated
Muslim law-making bodies. She soon real-
ized the import of the step she had taken as
overwhelming support began to pour in. She
had catapulted a private issue like triple talaq
into a national debate.
A
s Firoz Bakht Ahmed, the grand-
nephew of Maulana Abul Kalam
Azad, the famous freedom fighter,
points out, “In her petition, Shayara has chal-
lenged ‘instantaneous triple talaq’ and not
triple talaq itself, which is allowed by the
Quran as long as the three utterances are
spread over 90 days. Shayara’s is the first
such case where a Muslim woman has chal-
lenged a personal practice, citing the funda-
mental rights guaranteed by the constitution.
With the All India Muslim Personal Law
Board (AIMPLB) deciding to oppose any
move to scrap triple talaq and contest
the Shayara Bano case, the stage is set for
another Shah Bano-like confrontation like in
the 1980s.”
Since they set up the Bharatiya Muslim
Mahila Andolan (BMMA) in 2007, activists
Zakia Soman and Noorjehan Niaz have doc-
umented thousands of heart-rending stories
from more than 30,000 of its members
across India. Many of them have been vic-
tims of triple talaq. A 2013 BMMA survey
found that 92 percent of women want a ban
on triple talaq and 88.3 percent want the
legal divorce method to be that of talaq-e-
ahsan, which is spread over 90 days and
involves negotiation and is not unilateral.
The survey, which had 4,710 Muslim
women respondents in 10 states, showed that
they sought reform and codification of
Muslim law based on Quranic principles.
They felt they did not have the rights
enshrined in the Quran.
That maintenance is a real issue can be
gauged by the fact that the families of 73.1
percent earned less than Rs. 50,000 annual-
ly. Nearly 53.2 percent had faced domestic
violence. Shockingly, 95.5 percent of them
had not heard about the All India Muslim
Personal Law Board. Mumbai-based Niaz
told India Legal: “Triple talaq is ruining
BROKEN DREAMS
Lives of thousands of
Muslim women have
been destroyed due to
the practise of triple
talaq just months after
they married
Photos: UNI

I
ndian Muslims face multiple problems – far
more than any other prominent religious
group. Some of the baggage they carry is
because of the negative perspective with
which the majority community views them,
which is based on half-truths, propaganda,
outright lies and trumped-up charges.
Another reason is their inability to counter
opportunistic interlocutors who speak up on
their behalf like the personal law board and
manipulative political leaders.
The AIMPLB, formed in 1972, is a motley
collection of 201 members, including clerics
and some professionals, of which 101 are
‘Muslimsdon’tneedlawboards’
Educated Muslims feel education, socio-economic issues more crucial today
for the community to get ahead
By Firoz Bakht Ahmed
the lives of so many women. Men find it so
easy as they just need to utter talaq three
times. Men are getting away with it as there
is no law that can punish or stop them. Daily,
we hear so many painful stories from women.
This is what gives us the energy to fight,
demanding legislation to ban triple talaq.”
More and more Muslim women in India
are finally finding the courage to fight for their
legal rights in matters related to marriage and
divorce. They are now challenging the concept
of triple talaq and demanding a ban on it. They
are capturing the imagination of other Muslim
women who until now suffered silently and
had similar stories punctuating their lives –
being divorced through SpeedPost, Facebook,
Skype, WhatsApp, text messages and phone
calls without their consent and sometimes even
sans their presence. A word repeated three
times had wreaked havoc in their lives and
changed them forever. It is not easy to just pick
up the shattered pieces and move on especially
since there are several problematic issues with
alimony in Muslim personal law.
I
n April, another woman, Aafreen
Rahman from Jaipur, became the second
petitioner in the Shayara Bano case after
her husband used SpeedPost to divorce her –
sending a letter with talaq written three
times. Though this is contrary to the Quranic
tenets of justice, in addition to violating sev-
eral rights guaranteed by the constitution,
Muslim women who go to their community
courts do not get justice. These courts, dom-
inated by conservative male elites, often
uphold such divorces.
Then there is the practice of nikah-halala.
If the husband is ready to take back his
divorced wife, it can only happen if the wife
marries another man, consummates the
marriage and then divorces him—the process
of nikah-halala. Shayara Bano has asked the
Supreme Court to also ban nikah-halala and
polygamy which many women now see as
typical patriarchal practices that violate their
human rights.
Support for Shayara Bano is snowballing.
The BMMA has collected more than 50,000
signatures of Muslim women and men
The Bharatiya Muslim Mahila Andolan has
collected more than 50,000 signatures
against triple talaq and documented over
30,000 heart -rending stories of victims.
permanent while the rest have a three-year
term. While the community wants to change
with the times, most of the Board members
represent an orthodox male opinion. They
lack a progressive viewpoint. In fact, if the
Board has to gain any relevance then enlight-
ened lawyers, academicians, social activists,
journalists, teachers and clerics who have
been blessed with sanity must be included in
the AIMPLB and their voices heard.
If the AIMPLB members are told of pro-
gressive measures and reforms regarding
talaq, polygamy or family planning even in
countries like Pakistan (Muslim Family Laws
26 July 15, 2016
LEAD/Triple Talaq

against triple talaq, nikah-halala and
polygamy in its nationwide campaign. The
National Women’s Commission has ann-
ounced that it will also become a party to the
Bano class action suit which means that a
group of people with similar grievances get
together to sue as a group.
At 28, MBA graduate Afreen was happy
two years ago when a match with a lawyer
based in Indore worked out. But, soon after
the wedding, her trauma started as she
became a victim of domestic violence. Rea-
son: More dowry. Her brothers had taken a
huge loan for her wedding so she chose to
silently suffer and never told her parents. A
year later, her husband threw her out of the
house. Her parents initially pleaded with her
husband to take her back. He did so, only to
throw her out again. Then came the letter by
Speed Post, divorcing her.
The Supreme Court has now accepted her
petition challenging the talaq and asking for
triple talaq to be banned. It is now part of
Shayara Bano’s petition.
The practice is already banned in 22
Islamic nations, including Pakistan and
Bangladesh. Indonesia, the only country with
more Muslims than India, has also banned it.
(See Box) Shaina Hasan, Disaster Risk
Ordinance), Iran or Indonesia, they denounce
them and declare that they don’t follow what
is practised in these Islamic countries.
Eminent Muslim lawyer M Atyab Siddiqui
says Muslims do not need law boards. They
would rather address issues of prime impor-
tance like education and economic and
social backwardness. Seriously, AIMPLB
needs to be sidelined and the community
has to shoulder the burden of bringing itself
into the mainstream.
Religious but moderate Muslims in this
country believe that key issues have to be
addressed by the community as a whole.
Ideally, the AIMPLB should hold a referendum
on important issues like instantaneous triple
talaq or birth control. But the tragedy is that,
in the din, the voice of sanity is lost and the
media pays no heed to it. Muslims who
choose to embrace modernity find the AIM-
PLB an anachronism. What’s still more
shocking is that by projecting the entire com-
munity as obscurantist, the Board actually
harms the cause of the faithful whom it
claims to serve.
Even the new draft of the AIMPLB’s model
nikahnama doesn’t ban triple talaq. It just
calls it unethical. Triple talaq in a single sitting
has to be tackled with an iron hand. If
Muslims are involved in the process of
reform, it will be seen as having emanated
from within.
How do we involve Muslims in the
process? The Pakistani enactment of the
Muslim Family Laws Ordinance of 1961 can
act as a guideline. The AIMPLB could issue a
similar questionnaire keeping Indian condi-
tions and specificities in view and evaluate
Muslim public opinion before recommending
necessary reforms.
The author is a commentator and grand-
nephew of Maulana Abul Kalam Azad
Anil Shakya

Reduction Consultant, United Nations, says:
“Triple talaq is an abhorrent practice that has
no place in Islam and our country. Not only is
it un-Islamic, it also goes completely against
the principle of equality. That is why most
Muslim countries like Bangladesh and
Pakistan have banned it. If countries that
closely follow Shariah law such as Saudi
Arabia have banned it, what’s stopping
India? It is really sad that the All India
Muslim Personal Law Board, instead of
being sympathetic towards Muslim women
who suffer due to this crime, has turned a
blind eye to the demand for reform and has
been completely resistant to change. The
government must step in and abolish this
regressive practice of triple talaq.”
Muslim leaders and political parties have
largely kept out of the debate. Many feel this
is because patriarchal attitudes dominate.
Sabiha Farhat, a television producer and doc-
umentary filmmaker, points out: “It is a dou-
ble whammy for Indian Muslim women as
they have been let down by national leaders
and religious leaders. What the community
needs today is a leader like Ambedkar, who
codified the Hindu personal law despite
opposition from leaders like Sardar Patel,
Syama Prasad Mookerjee, Dr Rajendra
Prasad and many others to give us the Hindu
Code Bills standing against Hindu orthodoxy
that saw a threat to patriarchy. These mainly
gave Hindu women the right to property,
equality in filing of divorce, right to mainte-
nance and guardianship of children and abo-
lition of polygamy. After these many more
reforms have been carried out, putting
Hindu personal law on a progressive path as
compared to Muslim personal law.”
P
rotecting tradition, culture and reli-
gious practice takes precedence
despite women’s human rights being
trampled upon. Triple talaq is just one exam-
ple. Recently, Maneka Gandhi, the Union
Minister for Women and Child Develop-
ment, cited cultural concerns for not sup-
porting the criminalization of marital rape in
India. Similarly, cultural and religious oppo-
sition has slowed the pace of reform of
Muslim personal law, withholding the bene-
fits that accrue from multiculturalism.
Firoz Bakht Ahmed adds: “All that the
AIMPLB has managed so far is to tarnish the
image of Indian Muslims. Most statements
emanating from the board that the media
quotes are taken to be the community’s posi-
tion. The truth is that an average Muslim
thinks differently and is not influenced or
governed by what the AIMPLB states.”
The issue of Muslim personal law has
been raised numerous times but then has
been lost to political rhetoric. Even when it
was raised in the context of the Uniform Civil
Code, which is a policy goal for India in the
Directive Principles of State Policy, it evapo-
rated in political jugglery by various religious
communities which did nothing to amelio-
rate the plight of Muslim women.
Points out Sabiha: "The onus of reform of
the Muslim Community is on parliament as
the Muslim Personal Law can be codified
only by an act of Parliament. Why isn't the
parliament doing it despite so many years of
petitioning by NGOs and activists? And
therein lies the politics—who are we appeas-
ing at the cost of Muslim women? That
Muslims will be governed by their Personal
Law, is an Act that was put in place by British
in the 1830's. But nowhere in our legal sys-
tem has the Muslim personal law been spec-
ified or written down by legal experts. It is
therefore open to individual interpretations.
Why is it still not clearly stated or codified
despite 69 years of freedom? This in effect
1 Pakistan
2 Turkey
3 Bangladesh
4 Cyprus
5 Tunisia
6 Algeria
7 Malaysia
8 Iraq
9 Iran
10 Indonesia
11 Saudi Arabia
12 Sri Lanka
13 Egypt
14 Sudan
15 Brunei
16 Jordan
17 Morocco
18 Yemen
19 Syria
20 UAE
21 Qatar
22 Kuwait
Showing
theway
As many as 22
Islamic nations
banned triple
talaq ages ago
28 July 15, 2016
Anil Shakya
LEAD/Triple Talaq

Noorjehan Niaz says
triple talaq is ruining
the many lives. Men
find it so easy to
utter talaq thrice.
Men get away as
there is no law to
punish or stop them.
Zakia Soman says
that leaders of the
Muslim Personal
Law Board have
stonewalled the
issue of triple talaq
calling it an attack
on Islam.
MBA graduate
Afreen Rehman,
who was divorced
through a
SpeedPost letter,
has also petitioned
the SC, challenging
triple talaq.
Shayara Bano is the
first Muslim woman
to have challenged a
personal practice
citing fundamental
rights guaranteed by
the Indian
Constitution.
means that 13 percent of the population is
left to the whims of Maulanas who are ortho-
dox and patriarchal."
I
n the landmark Shah Bano judgment of
1985, the Supreme Court ruled that the
62-year-old was entitled to maintenance
after divorce, like any other woman citizen of
India, under Section 125 of the Criminal
Procedure Code. But the Muslim communi-
ty’s orthodox leadership slammed the judg-
ment and the then Congress government
under Prime Minister Rajiv Gandhi did not
want to upset the community as elections
were round the corner. It enacted the Muslim
Women (Protection of Rights on Divorce)
Act, 1986. This Act provided for mainte-
nance for only three months after divorce. It
was clearly a regressive step with disastrous
consequences for Muslim women as it shift-
ed the onus of maintaining the divorced
woman onto her relatives or the Wakf Board.
Clause A in Section 3(1) of the Act says that a
divorced woman shall be entitled to a reason-
able and fair provision and maintenance will
be paid by the husband. This was open to
interpretation as the latter would decide
what was fair.
In 2005, the government appointed the
Sachar Committee to evaluate the socio-eco-
nomic conditions of Muslims in India. While
the report established that the Muslim com-
munity was economically, socially and educa-
tionally lagging, the Committee was not
mandated to look into the status of Muslim
women. There has been no empirical study
conducted by the government to evaluate the
problems faced by Muslim women especially
with regard to Muslim personal law. And
this, despite the raucous communalism
raised in the context of the Uniform Civil
Code in political circles. Muslim personal law
is unique, when compared to family law
applicable to other communities because it is
largely uncodified. In India, both state courts
and community courts adjudicate on issues
of Muslim personal law.
As Sabiha points out: “Muslim personal
law is not even codified, to begin with. It can
only be codified by an act of parliament, it
can’t be done by individuals. Muslim women
have been left to the mercy of maulvis

who are orthodox and patriarchal. There
have been many Muslim women’s organisa-
tions and men who have raised the demand
to codify Muslim personal law and to do
away with triple talaq but no political party
seem to care. None of them has spoken
against triple talaq.”
“Muslims do not have a leader of their
own, they have always voted for mainstream
political parties, regional or national. Hindu
leaders are their leaders and they must fight
for the rights of Muslim women and stand
against Muslim orthodoxy,” she adds.
Even when Muslim matrimonial cases
come to state courts, there are several issues
that stand in the way of justice for these
women. Often, judges in lower courts are not
clear on aspects of Muslim family law
because they tend to depend only on codified
law. Nevertheless, landmark judgments by
the Supreme Court since the 1970s have
often referred to sources beyond statutes,
such as Islamic law followed in other coun-
tries, to push for reforms within Muslim law.
More specifically, the judgments have
referred to Islamic state law in countries
where women enjoy greater rights than in
India such as Tunisia, Libya, Jordan, Iraq,
Indonesia and Malaysia.
The courts unconditionally accepted
triple talaq until 1978, when it was declared
to be revocable if two conditions were not
met. Justice Baharul Islam, in his judgment
in the case of Jiauddin Ahmed v. Anwar
Begum in 1978, said: “The correct law of
talaq as ordained by the Holy Quran is that
talaq must be for a reasonable cause and be
preceded by attempts at reconciliation
between the husband and the wife by two
arbiters—one from the wife’s family and the
other from the husband’s. If the attempts fail,
talaq may be effected.”
This landmark case went unnoticed for a
very long time until 2002 when the Supreme
Court delivered a definitive verdict on the
revocability of triple talaq in the case of
Shamim Ara. Between 1978 and 2002, most
lower courts continued to uphold triple talaq
as valid, as there were merely 10 reported
cases where High Courts deemed triple talaq
revocable. Even though the Shamim Ara
judgment is progressive, it leaves a lot to be
desired and the courts or legislatures have
not done enough to protect the rights and
dignity of Muslim women when it comes to
unfair divorce practices.
T
hough the judgment laid down that
the husband must provide a “reason-
able cause” for divorcing his wife, it
does not specify what such reasons can be.
For instance, it does not specify whether
these reasons are the same as the grounds on
which Muslim women are permitted to judi-
cially mediate divorce, or if men can divorce
on a larger set of grounds. The verdict also
does not specify what would happen if efforts
at reconciliation have not been made before
the divorce is announced.
With these issues unclear, lower courts
and community courts are free to continue to
take decisions that might be biased against
women. Muslim women deserve more res-
pect and equal protection under the laws of
India. Change and Gender Equality, autho-
red by Narendra Subramanian in 2008, said
Fourteen hundred years after the Quran
granted equal rights to women, triple talaq
continues to marginalize Muslim women
though the Quran has no reference of it.
LEAD/Triple Talaq

The Quran lays down how a dialogue is to
be evolved over 90 days between the
estranged couple. If it fails, relatives medate.
If that also fails, can talaq be allowed?
T
he Quran clearly lays down how a dia-
logue has to be permitted to evolve,
spread over 90 days, between the
estranged couple. When that does not work,
relatives start mediating. Only if that also
fails, can talaq be allowed. Unilateral talaq,
as practiced in India, is not allowed by the
scripture. The norm for divorce is to pro-
nounce talaq once and, in the 30 days that
follow, there is room for the couple to recon-
cile. If that does not happen, talaq is pro-
nounced again after which, for the next 30
days, relatives try to work out a reconcilia-
tion. If this too fails, the third talaq is pro-
nounced. The divorce can be granted only
after another 30 days. The idea of the
long-drawn-out period is to enable the
couple to grab any window of opportunity
for reconciliation.
However, it hardly ever works out like
that. J Begum was divorced unilaterally by
her husband by the oral pronouncement of
talaq, three-and-a-half years after marriage.
Though she had a nikahnama, she did not
receive her mehr nor does she know what the
amount was. She has also not received any
maintenance allowance from her husband
that judges in lower courts and community
courts often misunderstand or do not know
this judgment.
Fourteen hundred years after the Quran
granted equal rights to women, triple talaq
continues to marginalize Muslim women.
The Quran does not have any reference to
triple talaq. Ahmedabad-based Zakia Soman
told India Legal: “Triple talaq is un-Quranic,
not in keeping with the Indian constitution
and is unjust and inhuman. It has to be abol-
ished. There is no mention of talaq in
the Quran but the leaders of the Muslim per-
sonal law board have stonewalled the issue of
triple talaq, saying that it is an attack on
Islam. It is a patriarchal conspiracy to deny
women their rights. They have manufactured
the concept of how a Muslim man can
say talaq three times and secure an instant
divorce. We have to stop the patriarchy and
conservatism that is passed off in the name
of Islam.”
Adds Saif Ahmad Khan, a freelance writer
for Huffington Post, “The fact that triple
talaq finds no mention in the holiest Islamic
scripture should make it easier for us to do
away with it.”
Photos:UNI

IL
after the divorce though she managed to get
back her jewelry and other belongings from
her husband’s house. She now lives with her
parents in Odisha. There are thousands of
such heart-rending stories of Muslim women
who have become victims of triple talaq.
Every city and village will have one.
A
fter completing her MPhil, Naveena
got married. The nightmare began
soon as she battled domestic vio-
lence and demands for more dowry. Three
months later, her husband unilaterally
divorced her by a letter through a Qazi. She
did not get her mehr, which had been fixed
at 10 grams of gold before the wedding, nor
did she get any maintenance after the
divorce. She now lives with her parents at
Tiruppur in Tamil Nadu, looking after her
year-old baby. She has heard that her for-
mer husband is now preparing to marry for
the third time.
KI Ahmed, president, Interfaith Har-
mony Foundation of India, told India Legal:
“Divorce is permitted in Islam but it is largely
discouraged. This is the last action that a
husband should take, only when all tools of
reconciliation are exhausted. Triple talaq has
been abandoned by the Muslim world. In
India, there is unfortunately no centralized
mechanism where highly educated and qual-
ified ulemas who are progressive can sit
together and come to a decision on why this
should continue here. But the fact is that we
have to stop the abuse of the provision of
triple talaq.”
As she did not have the money for any for-
mal education, 20-year-old Rubina from
Bhopal worked as a domestic help to make
ends meet. Three years after she was mar-
ried, her husband used the triple talaq
method to divorce her all of a sudden. Her
mehr, fixed at `7,000, was not handed over.
Nor were her personal belongings or jewelry.
She was also not offered any maintenance.
The man soon remarried. She and her seven-
year-old daughter now live with her parents.
Justice is a distant dream for her, and thou-
sands like her.
—With inputs from Punkhuri Chawla
Filmmaker
Sabiha Farhat
says that the
onus of reform
is on parliament
as the Muslim
personal law
can be codified
only by an act.
Shaina Hasan
who is with
the United
Nations says
triple talaq is
an abhorrent
practice that
has no place
in Islam
and India.
In the landmark
Shah Bano
judgment, the SC
ruled that she was
entitled to
maintenance after
divorce like anyone
under Section 125
of the CRPC.
32 July 15, 2016
LEAD/Triple Talaq

NATIONAL BRIEFS
India, Thailand
sign pacts
Maharashtra Chief Minister
Devendra Fadnavis has
confirmed that BJP leader
Eknath Khadse will not have to
face a judicial probe, contrary
to the demands of the opposi-
tion. A panel headed by a
retired High Court judge will
be constituted to investigate
the case. Khadse has been
embroiled in the controversial
purchase of government land.
According to The Indian
Express, the CM explained that
it was supposed to be a high-
level enquiry and at one point,
the government was even con-
sidering a judicial probe. But
the BJP leadership, both at the
state and the Center, are learnt
to have opposed the move.
The NDA government has decided to
relax the regulations for some of
the sectors vis-a-vis Foreign Direct
Investment (FDI). In a step labeled as
“radical liberalisation”, the FDI norms will
be eased in 15 sectors, including defense,
civil aviation and pharmaceuticals.
This decision comes soon after RBI
Governor Raghuram Rajan’s resignation.
The opposition Congress called it a
“panic reaction” that would not have
happened had Rajan not stepped
down from his post. The move is expected
to attract global investors and ease rules
for them.
Khadse probe
watered down
Center questions
Gujarat land Bill
The Center has raised queries over
the Gujarat Agricultural Land
Ceiling (Amendment) Bill, 2015, that
aims to change the preamble of the
original legislation by making surplus
agriculture land — meant for landless
farmers — also available to industry.
The Bill was passed by the Assembly
last year in August. The Indian
Express reports that the Gujarat gov-
ernment assured the Center that there
was “enough agriculture land” avail-
able in the state and that the proposed
amendments would not affect farm
production.
At a meeting with his Thai
counterpart General
Prayut Chan-o-cha, Prime
Minister Narendra Modi
decided to step up coopera-
tion with Thailand in the
fields of economy, counter-ter-
rorism, cyber security and
human trafficking, besides
forging closer ties in defense
and maritime security. The
leaders agreed to the early
conclusion of a balanced
Comprehensive Economic and
Partnership Agreement. Modi
said both the countries have
prioritised the completion of
the India-Myanmar-Thailand
Trilateral highway and early
signing of the Motor Vehicles
Agreement between India,
Thailand and Myanmar.
Govt to ease FDI
regulations

MY SPACE/Censorship
WilltheFloodgates
Bikram Vohra
34 July 15, 2016

I
N a world of open-ended
audio-visual piracy and the
almost comical ease with
which you can download the
latest films, albeit illegally, any
controversies over cinematic
censorship are relatively
meaningless. The garbage
that spews off the 11-inch
screen and the laptop is viral. And so endless
and invasive that it makes a mockery of cen-
sorship per se.
Add to that the deluge of pornography
that drenches the younger generation (and
others) over the net and you might as well
give up the ghost completely and make the
Censor Board more an advisory agency
than a moral police force which it occasional-
ly assumes.
Come to think of it, that is exactly what it
should be. A body whose job it is to certify the
category of the film and leave it at that.
The word “censor” is anti-“democratic” and
presumes that the state wishes to exercise its
non-constitutional “right” to think for
the people.
IMPERFECT WORLD
In a perfect world, this would be the perfect
equation. But it is not a perfect world and
once that stone starts rolling down the hill,
honesty and transparency are up for grabs.
Most of the time, we are imperfect people
doing imperfect things for imperfect reasons.
The cinema industry is no exception.
The milestone judicial decision over Udta
Punjab certainly moves the goal posts and
sets a precedent for the future. Now, that the
Censor Board has been given a celluloid
vasectomy, the onus does fall on the filmmak-
er and the script-writer, on TV and on media
in general to ensure that it behaves
While Bollywood celebrated the Bombay High
Court verdict okaying Udta Punjab, it could be
seen as a license to show films full of sleaze,
smut and violence. An emasculated Censor
Board is worse than none at all
Open?
Brace yourself
for the ugly era
of Indian
cinema where
all will be laid
bare. Subjects
like pedophilia,
rape of minors,
child trafficking,
sexual
deviations will
be exploited
and packaged
for the public
because, after
all, aren’t they
as valid as
narcotics doing
the dirty in
Punjab?

responsibly and does not go for broke.
Herein lies the rub. Do we have the matu-
rity not to exploit the newly minted freedom
allotted to us? What if we go for the lowest
common denominator and there is enough
evidence in Indian cinema across the board
that indicts us for bad taste and visual and
spoken ugliness.
TACKY CINEMA
The danger in a misjudgment over this partic-
ular film predicated to a hubris by Pahlaj
Nihalani is that it can lead to the dam burst-
ing and mediocrity fuelling cheap and tacky
cinema in the near future. Just because Udta
Punjab does have relatively high values and
tells its story with vigor and style does not nec-
essarily mean that its clones will aspire to
such heights.
Most of Indian cinema, especially region-
al, borders on the vulgar. Some of the coarse-
ness that gets the nod from the Censor Board
makes one wonder what is the yardstick. The
chairman speaks of guidelines. What prisms
are employed to assess these is not listed.
This restoration of the film does encourage
the lurking fear that it could be seen as per-
mission to do dozens of Udta Punjabs on a
budget and in all languages. What we are
then looking at is gratuitous violence and sex
spiraling to obscenity under the guise of “free
expression” in an effort to serve jaded
appetites and make instant money.
If Nihalani and his band have done
Indian creativity a disservice, it is that they
have actually ensured a dropping of stan-
dards in future by scything a reasonably well-
made and relevant film. If they had honored
it, the film would have done what it intended
to...focus attention on a major issue in
Punjab...no more, no less. And it would have
run its course.
It should never have become a political
pawn or been given such dimensions
of grandeur.
NEW, UGLY ERA?
Now, that the genie is out of the bottle, it is
not going back. Brace yourself for the ugly
era of Indian cinema where all will be laid
bare. Subjects like pedophilia, rape of
minors, child trafficking, sexual deviations
will be exploited and packaged for the public
CONTENTIOUS CHIEF
(Above) Censor Board
chief Pahlaj Nihalani;
(Below L to R) Poster of
Daddy, a film on alcohol
abuse; a still from Ek
Duje Ke Liye, on
inter-caste love
MY SPACE/Censorship
36 July 15, 2016
Anil Shakya

because, after all, aren’t they as valid as nar-
cotics doing the dirty in Punjab?
And what if these films titillate when they
should teach, what if the large percentage of
them is gross when they should be graceful
and sensitive in dealing with such issues?
After all, sleaze, smut and violence are now
going to be given a free pass and the CBFC
will let the films slip through their net
because the brouhaha is not worth it. An
emasculated CBFC is worse than none at all.
The subtlety of this unpleasant by-prod-
uct of the legal fiat is lost on most people
because they fail to understand that the Udta
Punjab restoration could be interpreted as a
license to make bad films in the future and
exploit the unspeakable for commercial gain.
The excitement in the movie industry is pal-
pable. The ogre has been slain.
CBFC FAILS
The Bombay High Court decision should
never have happened because the CBFC
should have appreciated good cinema,
regardless of the harshness of the storyline
and allowed it to thrive. By throttling it and
giving it a political overtone, the Censor
Board failed in its duty to be the custodian of
sincere art. You don’t have to like a film or
dislike it for it to be relevant and meaningful.
Cinema is a two-sided coin. It opens eyes,
highlights troubling issues, educates, focuses
attention and writes history, bringing the
past alive again. It is also deceitful, fleeting,
nebulous, clever, manipulative and rewrites
history to suit its maker and its audience. As
a result of all these contradictions, it largely
falls under the canopy of entertainment.
How much of an impact it makes is a
question whose answer is still up for grabs.
The Godfather series did not shut the
mafia down in the US. A slew of war films,
underscoring the futility of war did not end
foe versus foe. In the past 50 years, there
have been 15 days of peace. Go figure. Films
on genocide did not sheath the killer’s knife.
The Boko Haram cadres are not impressed
by Beasts of No Nation and still recruit child
soldiers.
Crime shows by the dozen did not impact
on the criminal community. On the contrary,
the hi-tech feed into scripts and the hard
research that goes into non-fiction blurs the
line between imagination and reality and
SEIZING THE STORY
(Clockwise from below)
A poster of
My Brother Nikhil;
No One Killed Jessica; a
still from The Godfather

ed a Page 3 glimpse into the uptown world
but justice was not fast-tracked. Rang De
Basanti set the frustration of Indian youth to
music and may well have impacted negative-
ly on student movements, which was clearly
not the aim.
Take Chak De. India got into the finals of
the Champion’s Trophy hockey in London
recently and India did not watch...so much
for the national sport. Bhaag Milkha Bhaag
was inspirational but no athletics program
came out of it.
MORE DOCU-FICTION
That said, in some tangible fashion, cinema
verite (veracity) does open a window and
bring to the fore dirt we would rather keep
under the carpet. It is a start and done with
good intent, will pry a window open. The way
to go is docu-fiction. Unfortunately, short
films and documentaries are not a seller in
India and get no broad-based audiences.
When the judiciary restored Udta Punjab
to its original robustness, it might have been
well-advised to add a few codicils. The most
important of these would have been to state
unequivocally that Udta Punjab is not a free
pass to the cinema industry nor a green card
for its more salacious and crude productions.
Don’t engage in premature celebrations.
It could also have considered the add-on
of a short documentary film on a similar
subject in the halls that exhibit a particularly
themed movie as part of a new awareness.
That would add authenticity and muscle
to the feature film. For example, the much-
maligned JNU made Substance Abuse and
Pocket films made Withdrawal. These would
be hardly 15 minutes extra but if
made mandatory along with the main film
when the subjects coincide....that would have
given a welcome credibility to the Udta
Punjab drama.
Till then, the “victory” that the judgment
signifies to Bollywood and its regional
partners is only limited to separating the arts
from the state and removing the political
overtones because it does not suit a party
in power. To read more into it is to make
Pandora’s Box look like gold dust.
(The writer is a columnist and a former editor)
IL
often gives useful data and information
to anti-social elements. By that token, Udta
Punjab will not end the drug stranglehold in
Punjab.
SOCIETAL CHANGE?
Taare Zameen Par underscored the plight of
children with special needs but how much
changed in the public? When Daddy was
made about alcoholism (a common feature in
nearly every family unit) two decades ago, did
it change things? Not really. I watched Peepli
with shudders of sadness. But collectively,
how much difference did it make to the plight
of farmers or their suicide rate? Ek Duuje ke
Liye did not eradicate caste bias. On the
contrary, cinema sometimes unwittingly
emphasizes ills and worsens them.
Caste and religious divides still flourish
and we have more aggressive expressions now
than we did then. My Brother Nikhil did not
repeal Article 377 which criminalizes the
LGBT brigade. No One Killed Jessica provid-
REEL REALISM
(Above) A still from
Peepli Live that took
up the subject of
farmer suicides;
(Right) A poster of
Taare Zameen Par, a
sensitive portrayal of
learning difficulties
Now that the
Censor Board
has been given
a celluloid
vasectomy, the
onus does fall
on the filmmaker
and the
script-writer, on
TV and on
media in general
to ensure that
it behaves
responsibly and
does not go
for broke.
MY SPACE/Censorship
38 July 15, 2016

NATIONAL BRIEFS
— Compiled by Tithi Mukherjee
New labor law for
textile sector
The Union Cabinet has
approved a `6,000-crore
package for the textile and
apparel sector and has
introduced new labor laws.
A key change is an increase
in overtime for workers,
which would not exceed
eight hours a week, translat-
ing into nearly 90 hours over
three months. “It’ll be
advantageous for the
industry as well as labor,”
said A Sakthivel, who
represents industry lobby
groups. The move is expected
to provide flexibility in hiring
but is unlikely to result in
any higher burden on
companies.
BJP Rajya Sabha MP Subramanian Swamy
has alleged via Twitter that the economic
affairs secretary, Shaktikanta Das, is involved in
a property case linked to Congress leader P
Chidambaram. This prompted Finance Minister
Arun Jaitley to sharply defend the official. “An
unfair and false attack on a disciplined civil ser-
vant in the finance ministry,” tweeted Jaitley.
The Medical Council of India (MCI) is
set to be replaced by a Medical
Education Commission that will have
three independent wings to oversee cur-
riculum, accreditation of colleges and
medical ethics. This new commission
could be run by eminent personalities
from the medical field, who will be
allowed to continue their professional
commitments. The proposed commission
is slated to be an umbrella organization
at the top with a mandate to regulate and
monitor medical education and practices.
“The plan is to totally disband MCI and
set up an entirely new entity,” said a
source to The Times Of India.
MCI to be disbanded
The Congress has cried foul as the Central Information Commission
issued showcause notices aimed at bringing political parties under
the ambit of Right To Information (RTI) Act. While notices were
served to national presidents and general secretaries of other political
parties, Congress president Sonia Gandhi is the only party chief who
has been named in the notice. The CIC issued showcause notices to
BJP national president, president/general secretary of the NCP and
the BSP and general secretaries of the CPI(M) and CPI over a com-
plaint filed by RTI activist RK Jain and 16 other applicants.
However, the Congress has called it a conspiracy, alleging that Sonia
Gandhi alone has been named.
Congress cries foul as CIC
notice names only Sonia
Jung summoned
for probe
Delhi assembly Deputy Speaker
Rakhi Bidlan announced that
Lieutenant Governor Najeeb Jung
would be summoned by the peti-
tions committee of the House for
questioning in five cases filed with
the Anti-Corruption Branch in 2014.
Two of these complaints had been
filed by MLAs Rajendra
Gautam and Somnath
Bharti with Speaker
Ram Niwas Goel. A
letter was sent to Jung
in the connection.
Swamy accuses
economic affairs secy

Areaof
Darkness
After putting out a draft
forest policy, the
government suddenly
backtracked in panic.
If it had got through, it
would have seen more
areas getting
commercialized,
adversely affecting
ecology
By Ramesh Menon
I
N a bid to bring one-third of
India under forests and revive
degraded areas that are collaps-
ing with immense biotic pressure,
the NDA government floated a
draft national forest policy in
mid-June and asked for com-
ments from the public and stakeholders by
June 30. It had proposed to levy a green tax
to supplement the resources and also give
away forest land to the private sector to grow
plantations that would help industry.
However, just ten days after AK Mohanty,
deputy inspector general of forests (forest
policy division) issued an office memoran-
ACTS & BILLS/Draft Forest Policy
40 July 15, 2016
Kh. Manglembi Devi

dum inviting comments from the public and
stakeholders on the new draft forest policy
that was also put up on its website, the envi-
ronment ministry in a surprising somersault
suddenly announced that it was just a study
and not the forest policy! According to
informed sources, this is because there was a
lot of opposition to the draft which allows
private companies to carry out industrial
plantations in forests among many other
things. These are not in the interests of dwin-
dling forests or the protection of forest rights
of those who live off forest produce. With
crucial state elections coming up next year,
the government does not want to be seen
pandering to the industry which this draft
was proposing to do.
The office memorandum dated June 16
(File No 1-1/2012-FP (Vol.@) clearly states:
"Ministry is in the process of revising the
present national foreign policy 1988. A draft
national forest policy in this regard has been
prepared and is enclosed. All stakeholders
are requested to send their comments if any
by June 30, 2012."
N
ow, a new document of the environ-
ment ministry says that what was
put on the website was just a study
of the Indian Institute of Forest
Management, Bhopal. Much before this som-
ersault, India Legal had spoken to the
Institute officials and they said that they had
researched for many months visiting 100 vil-
lages to create this draft. However, S Negi,
director-general, forests, now says that
YouWall.com

the study is only one of the inputs for the pro-
posed forest policy. He has not indicated
when it will be out.
The draft talks of protection and man-
agement of other ecosystems like alpine
meadows, grasslands, deserts, marine and
coastal areas.
Dr GA Kinhal, Director, IIFM, told India
Legal: “We have shifted the focus from
forests to landscapes, from canopy cover to
healthy eco-systems and from joint forest
management to community forest manage-
ment. We want to improve the health and
vitality of forest eco-systems to ensure
ecological security and conserve biological
diversity.”
This draft was expected to guide the com-
plex management of forests of India in the
next few decades. The last policy was made
28 years ago. At present, India has a forest
cover of only 24.16 percent, according to the
India State of Forest Report released in
December 2015.
W
hat is disturbing is that while this
“study” talks of ensuring larger
areas under forests, it does away
with a similar target for hill and mountain-
ous regions to maintain two-thirds of the
geographical area under forest cover. It is
probably a window created to execute com-
mercial operations.
Clearly, the Modi government wants to
push private investment in the forestry sec-
tor. In order to ensure larger production of
wood through farm forestry, the policy aims
to create contracts between industry and
farmers. “Large-scale expansion of agro-
forestry and farm forestry should be encour-
aged through commensurate incentives and
operational support systems such as lowering
the input costs and enabling access to rea-
sonably priced quality planting material,” the
draft said.
Chandra Bhushan, deputy director gener-
al, Centre for Science and Environment,
warns that if forests are handed over to the
Over 1.21 million hectares of forest land
was diverted since the eighties to make way
for as many as 23,784 non-forestry propos-
als like mining and industrial projects.
42 July 15, 2016
Photos: UNI

private sector, vast stretches would be con-
verted to monoculture plantations to cater to
wood-based industries like pulp and paper
and would exclude forest dependent commu-
nities. The degraded forests that will be
handed over to the private sector were once a
healthy green eco-system and got destroyed
by sheer neglect. If forests are managed
properly, they will have the potential to sup-
port demands of both forest-dependent com-
munities and the industry if meaningful
partnerships are worked out, said Bhushan.
S
tates that showed improvement in
their forest cover last year were: Tamil
Nadu, Jammu & Kashmir, Uttar
Pradesh, Kerala and Karnataka. The states
where it substantially worsened were:
Mizoram, Telangana, Uttarakhand, Naga-
land and Arunachal Pradesh.
Haryana, which has a very poor forest
cover, may find that most of its shrub forests
will not get the protection it needs under the
new policy as it does not recognize it as
forests. Vast tracts in the Aravalis which are
over 11,500 hectares will then be converted
for commercial use as the pressure builds
If forests are handed
over to the private sector,
vast areas would be
converted to plantations
to cater to wood based
industry.
—Chandra Bhushan, deputy
director general, CSE
We want to focus on
landscapes, healthy
eco-systems and
community forest
management to improve
forest eco-systems.
—Dr GA Kinhal,
director, IIFM
GRIM REALITY
(From left) Numerous hill areas have been
devastated with mining; those who live on
forest produce are seriously affected with
forests shrinking; a large part of the Aravallis
have been seriously degraded

IL
up from the industry to do so.
The “study” said that there was a need for
exercising restraint on how forest land was
being diverted for non-forestry purposes like
mining, quarrying, dams, roads and other
linear infrastructure. One way was to use
state-of-the-art technology that would mini-
mize pollution and damage, it said.
Government records indicate that around
1.21 million hectares of forest land had been
diverted since the eighties to make way for as
many as 23,784 non-forestry proposals. Most
of them were mining and industrial projects.
Of them, around 4,00,000 hectares were in
Madhya Pradesh and over 1,00,000 hectares
were in Maharashtra and Chhattisgarh.
F
or many years, there was a grouse that
concerns of forest dwellers and local
communities were overlooked. This
policy mentions that there is a need to devel-
op responsible ecotourism models that focus
on conservation which would also supple-
ment livelihood needs of local communities.
While the “study” said that gram sabhas or
village councils can be roped in to take over
management of forests, their plans would
have to be vetted by the forest department.
The new policy does not seem to agree with
the Forest Rights Act promulgated in 2006
which empowered tribals and forest dwellers
to take back the land that the forest depart-
ment had taken over from them. The Act had
given communities complete management
control over their lands with very little role for
the forest department to play.
Ajay Kumar Saxena, program manager,
forestry, Centre for Science and Environment
says that this draft did not address new chal-
lenges like climate change but misses critical
issues like forest rights, joint forest manage-
ment and protecting interests of farmers
practicing farm forestry. “It does not discuss
issues of compensatory afforestation and it
surprisingly does away with the requirement
of having two-thirds of area in mountain and
hill regions under forests. This is a complete
deviation from the 1988 forest policy. It set
an ambitious target of increasing forest car-
bon stock by one-third of the existing stock by
the end of next decade which is quite
unachievable and far more ambitious than
forest carbon goals submitted by India to the
United Nations Framework Convention on
Climate Change, ” Saxena added.
If it had gone through, this idea of pro-
moting commercial plantations on forest
land would have harmed the interests of
millions of farmers who are practicing
farm forestry.
Around 1.21
million hectares of
forest land was
diverted since the
eighties to
make way for as
many as 23,784
non-forestry
proposals like
mining and
industrial projects.
44 July 15, 2016
Photos:UNI

India Legal 15 July 2016

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India Legal 15 July 2016