Witches Brew
Branding women as dayans across tribal belts in India is on the rise as greed for property, enmity and collusion by local officials overturns legal and ethical norms, aided by illiteracy and superstition
1. InvitationPrice
`50
NDIA EGALL STORIES THAT COUNT
June19, 2017 ` 100
I
IT Sector:
Future Shock?
PEDKI DEVI,
labelled a “witch” and
publicly humiliated in
1999, is a subject matter
in school books but still
fighting for justice 18
years later, as the culprits
roam free and continue
to threaten her. The
motive? Greed to grab
her 12 acres of land
Standing Counsels:
Relative Values
www.indialegallive.com
Witches BrewBranding women as dayans across tribal belts in India is on the rise as
greed for property, enmity and collusion by local officials overturns legal
and ethical norms, aided by illiteracy and superstition
3. IVEN the nature of the Indian polit-
ical system in which the doctrine of
separation of powers—the corner-
stone of accountable governance—
lies supine at the altar of executive
privilege, I doubt that we will ever see a tele-
vised session of parliament in which a top law
enforcement officer openly calls a prime minis-
ter a liar and points the finger at him for trying
to derail an investigation of collusion between
his closest advisors and a hostile foreign power
to influence the course of a general election.
In India’s Westminster-style democracy, the
legislature, for all intents and purposes, is a
slavish extension of the executive (members of
parliament are also ministers) and the execu-
tive can hardly be expected to conduct an im-
partial investigation into its own wrongdoings.
The accountability process is further stymied
by ministerial control of the bureaucracy, par-
ticularly law enforcement.
In these circumstances, obstruction of jus-
tice, or targeted prosecution of political oppo-
nents, is the everyday rule.
Small wonder then that Indians were flab-
bergasted by the spectacular real-time reality
TV show in which a sacked FBI director surgi-
cally rubbished the character and credibility
of his former boss, the most powerful man in
the world, no less than the President of Ame-
rica himself. And that too in testimony be-
fore the powerful 15-member US Senate
Select Committee on Intelligence,
comprising of Democrats and
Republicans (the President’s
own party).
Public investigations by bipar-
tisan Congressional committees
are de rigueur in the American sys-
tem. Senior administration officials are
regularly hauled up on Capitol Hill to testi-
fy under oath on the functioning of their
departments and to answer charges of mis-
feasance or malfeasance. Not all of them
attract a great deal of press. But former
FBI Director James Comey’s broadside
against President Trump was singular in that it
evoked memories of Nixon and Watergate in
which the issue of obstruction of justice caused
the late president to resign in disgrace.
There is nothing remarkable about an FBI
chief being fired by the president at whose
pleasure he serves. President Bill Clinton also
dismissed his FBI chief, William Sessions, in
1993 for proven misconduct.
A president can dump the FBI boss with or
without giving any reason. But there are sub-
tleties in the American system. The FBI chief
reports directly to the attorney general and not
to the president. And FBI directors keep presi-
dents at arm’s length, scrupulously guarding
their autonomy as the top federal law enforce-
ment and domestic counter-terrorism and
counter-espionage officers.
What is remarkable, however, is that Trump
fired the man heading a criminal investigation
into the president’s election campaign. “The
FBI has gone after presidents before,” Tim
Weiner, a Pulitzer Prize-winning journalist and
historian told VOX, pointing to the Bureau’s
probes of Richard Nixon during Watergate and
Ronald Reagan during the Iran-Contra scan-
dal. “But never has a president dismissed an
FBI director when members of the president’s
administration and members of the president’s
campaign team were under investigation for
colluding with a foreign power (Russia).”
A
mericans treat law enforcement as a
religion. They also believe that public
officials owe their loyalty to the consti-
tution and not to their political bosses. And
obstruction of justice, when proven at any
level, receives zero tolerance, cutting across
party lines. Did Comey accuse Trump of this?
And did Trump obstruct justice? Did Trump
demand personal loyalty over loyalty to the
constitution? Those are the key questions
being debated across America.
In a lukewarm attempt to shield Trump
from this charge, Senator James Risch, a Rep-
ublican from Idaho, zeroed in on this point
BINDING THE MINOTAUR
Inderjit Badhwar
Letter from the Editor
| INDIA LEGAL | June 19, 2017 3
G
4. 4 June 19, 2017
during the Senate hearings at which Comey
testified. He wanted to know whether Trump
had “ordered” or “directed” Comey to drop the
probe of Michael Flynn, his national security
adviser, whom he was forced to fire barely
three weeks after being sworn in because he
had not revealed his secret contacts with the
Russians.
This is how the exchange went:
SENATOR RISCH: There’s 28 words (in your
written statement) there that are in quotes,
and it says, quote, “I hope”—this is the presi-
dent speaking—“I hope you can see your way
clear to letting this go, to letting Flynn go. He
is a good guy. I hope you can let this go.”
Now those are his (the president’s) exact
words, is that correct?
COMEY: Correct.
RISCH: And you wrote them here, and you put
them in quotes?
COMEY: Correct.
RISCH: Thank you for that. He did not direct
you to let it go.
COMEY: Not in his words, no.
RISCH: He did not order you to let it go.
COMEY: Again, those words are not an order.
RISCH: He said, “I hope.” Now, like me, you
probably did hundreds of cases, maybe thou-
sands of cases charging people with criminal
offenses. And, of course, you have knowledge
of the thousands of cases out there that—
where people have been charged. Do you know
of any case where a person has been charged
for obstruction of justice or, for that matter,
any other criminal offense, where this — they
said, or thought, they hoped for an outcome?
COMEY: I don’t know well enough to answer.
And the reason I keep saying “his words” is I
took it as a direction.
RISCH: Right.
COMEY: I mean, this is the president of the
United States, with me alone, saying, “I
hope” this. I took it as, this is what he wants
me to do.
(CROSSTALK)
COMEY: Now I — I didn’t obey that, but that’s
the way I took it.
RISCH: You—you may have taken it as a direc-
tion, but that’s not what he said.
(CROSSTALK)
COMEY: Correct. I—that’s why...
RISCH: He said—he said, “I hope.”
COMEY: Those are exact words, correct.
RISCH: OK, do you—you don’t know of any-
one that’s ever been charged for hoping some-
thing. Is that a fair statement?
COMEY: I don’t, as I sit here.
RISCH: Yeah. Thank you.
R
isch probably thought he had scored a
point. Did he? Here’s the definition of
Obstruction of Justice from the US
Federal Legal Code:
(a) Whoever corruptly, or by threats or force, or
by any threatening letter or communication,
endeavors to influence, intimidate, or impede
any grand or petit juror,
or officer in or of any
court of the United Sta-
tes, or officer who may be
serving at any examina-
tion or other proceeding
before any United States
magistrate judge or other
committing magistrate,
in the discharge of his
duty, or injures any such
grand or petit juror in his
person or property on
account of any verdict or
indictment assented to by
him, or on account of his
being or having been such
juror, or injures any such
officer, magistrate judge,
or other committing mag-
Letter from the Editor
PLAIN TALK
Former FBI director James
Comey had the courage to
take on his former boss
Donald Trump in the US
Senate Select Committee
UNI
5. | INDIA LEGAL | June 19, 2017 5
istrate in his person or property on account of
the performance of his official duties, or cor-
ruptly or by threats or force, or by any threat-
ening letter or communication, influences,
obstructs, or impedes, or endeavors to influ-
ence, obstruct, or impede, the due administra-
tion of justice, shall be punished as provided in
subsection (b).
That definition does not require that there
be a direct order that would quash or affect the
investigation. “The key question here is wheth-
er the president acted with corrupt intent,”
Renato Mariotti, a former federal prosecutor,
told CNN.
O
n a personal note, I covered the Water-
gate scandal as a reporter in Washing-
ton, and the present situation brings to
mind a great American hero Senator Sam
Ervin who chaired the Senate Select Commi-
ttee on Watergate and brought down Nixon. I
see analogies to the current Trump situation.
Ervin was an uncomplicated, strict consti-
tutionalist who believed the Social Contract
and Rule of Law to be living entities. He came
finally to the conclusion that Nixon and his top
aides resorted to dirty tricks to weaken the
Democratic Presidential campaign and incr-
ease Nixon’s chances for winning in 1972.
When information surfaced, Nixon and his
cronies lied to investigators, resorted to cover-
ups and got caught. Ervin opened his Commi-
ttee’s hearings with these famous words still
engraved in the minds of the reporters who
covered that event:
“If the many allegations made to date are
true, then the burglars who broke into the
Democratic National Committee at the Water-
gate (apartment) were in fact breaking into the
home of every American citizen…. And if these
allegations prove true, what they were seeking
to steal was not the jewels, money or other pre-
cious property, but something much more
valuable: the right to vote in a free election.”
As Benjamin Wittes, editor-in-chief of
Lawfare and a Senior Fellow in Governance
Studies at the Brookings Institution, put it:
“This is the Trump presidency. There is no evi-
dence that any chains can bind this president:
not lawyers, not norms, not procedures, not
repeated screw-ups of the sort that educate
other leaders, and certainly not the mere
expectations of decent public servants. But
the problem is that the United States is res-
ponsible for his actions—and we are paying
daily the price for them, particularly in our
international relations but also in our domestic
governance. It simply will not do any more for
politicians to shield their eyes and say the
equivalent of “even if Trump did act inappro-
priately, and I’m not saying he did, it’s not my
problem because he’s a beastly minotaur and
no chains can bind him”.
Today there is no Sam Ervin or anybody of
his stature in the American Senate. Both hous-
es are controlled by Republicans, some of
whom blindly support Trump and some who
maintain a studied silence. But exceptional cir-
cumstances give birth to exceptional heroes.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
NO EXCEPTIONS
(Left) The Senate
Select Committee
pinned Richard Nixon
and his cronies for their
unethical practices in
the run-up to the 1972
elections
(Below) The sacked
FBI director surgically
rubbished the character
and credibility of the
most powerful man in
the world, US President
Donald Trump
UNI
6. Hunting for “Dayans”
The reprehensible custom of branding single women and widows as witches and grabbing
their property continues in various states. Are our laws strong enough to act as a deterrent?
14
LEAD
FOCUS
ContentsVOLUME. X ISSUE. 31
JUNE19,2017
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6 June 19, 2017
All in the
Family
There is uneasiness about the
appointment of standing coun-
sels and advocates-general by
various states since clout and
lineage seem to be the decid-
ing factors
20
7. STATES
REGULARS
Followuson
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Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs................12
Media Watch ..................38
Satire ..............................50
Cover Design: ANTHONY LAWRENCE
| INDIA LEGAL | June 19, 2017 7
Whose Tech Is It Anyway
The ministry might be playing favourites in a row between
Monsanto and Nuziveedu Seeds. But this isn’t the full picture
28
AGRICULTURE
Tango with India
As a new world order emerges, Modi will
try to be the right man in the right place
for Europe and the US. Will this give India
an edge on the world stage?
46
DIPLOMACY
“Govt Obliged to Share Information”
CIC Dr MS Acharyulu, who recently asked a post office to disclose data on demoneti-
sation, says policy decisions that impact the lives of people should be made public
36
INTERVIEW
How Democratic
Is My Country?
Public institutions are increasingly
found lacking in moral courage to
stand up to the Executive. This is
undermining the functioning of India’s
system of governance
44
BOOKS
Jaipur
Palace Wars
Though the Supreme Court has
settled this protracted feud over
five-star heritage hotels, secret
machinations by rival royals
may yet disinherit the true heirs
40
PROPERTY
Faith and Probity
The Kerala High Court has directed AIIMS to let Muslim women
wear the hijab while writing the MBBS entrance
26
24Murder Most Foul
The killing of a Congress lawmaker has again brought to light
the practice of political vendetta in MP
Survival of the Smartest
With the IT industry going through another churning, the only way
to sail through is to innovate and learn new skills or face the sack
32
TECH
8. 8 June 19, 2017
“
RINGSIDE
These fireworks have no effect on Iran.
They will soon be eliminated .... They are
too small to affect the will of the Iranian
nation and its officials.
—Iran's supreme leader Ayatollah Ali Khamenei,
reacting to the bomb and gun attacks in Tehran on
June 7, as quoted on Iran's state TV
I am convinced the Paris
Agreement and broad cli-
mate action is unstoppable.
President Trump’s decision
has given us a new sense of
urgency. It’s also created a
leadership vacuum, but like
all vacuums, it will be
filled.
—Executive Director of the
United Nations
Environment Programme
Erik Solheim, in
The Times of India
In terms of my political
writing, very often, I
actually feel even more
rage than I show
through the work.
When I write fiction,
I’m in my body [as] a
very different person.
There’s a great peace
in me when I write
fiction.
—Author Arundhati
Roy, in an interview to
www.slate.com
I am looking at women
coming in as jawans. I am
going to start it soon.
Firstly, we will start with
women as military police
jawans... We have already
started the process and
women will now have an
opportunity to show their
grit and strength in tak-
ing up challenges in com-
bat roles and shattering
the glass ceiling.
—Army chief General
Bipin Rawat, to PTI
NDTV isn’t an overnight
phenomenon, even they
know that. If you are so
eager to finish us, then Sir,
some day, let’s sit across
each other. We’ll be there,
you’ll be there and so will
be a Live Camera.
—NDTV journalist
Ravish Kumar, on his
Facebook page
Alleged that Roys owe
banks `48 crore. Adanis
owe banks 72,000 crore.
May we expect Gautam
bhai to be raided next?
—Historian Ramachandra
Guha, on Twitter
Triple talaq is an enormity;
it is a legacy of a pre-
Islamic Arabia…. This
obnoxious practice must be
put an end to, as has been
done in almost every
Muslim country. The
Indian Muslim man is no
special creature to continue
to have this special right.
—Former Union minister
Arif Mohammad Khan, in
The Indian Express
Any change in an
entrenched interest, who-
ever it be, is discomfort-
ing. But law of change
goes on. It’s universal.
—Puducherry governor
Kiran Bedi, on Twitter
9. | INDIA LEGAL | June 19, 2017 9
The Congress Working
Committee meeting last
week gave a hint of where
the party is headed. The
long-awaited decision to
elevate Rahul Gandhi as
Congress party president
this October was not as
unexpected as Sonia’s
message. She appar-
ently took some select-
ed leaders
aside and
informed
them that
her ill-
health did not allow her to
carry on as president and
doctors have suggested
she move to the hills where
the air is cleaner. In fact,
the CWC meet was held in
her house, not the party
headquarters, an indication
of her restricted move-
ments. It is a measure of
their respect for her bind-
ing force and political acu-
men (or lack of it in the
case of the son) that the
leaders asked Sonia to
continue to oversee party
strategy and progress. She
is likely to move to the
house being built in
Chharabra, near Shimla by
daughter Priyanka, which is
almost complete. Her
favourite summer getaway
is Kausani in the
Uttarkhand hills where a
close family friend has a
house but for a lengthier
stay in cooler climes,
Shimla makes more sense.
It has already been sur-
veyed by the SPG.
Twitter: @indialegalmedia
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Contact: editor@indialegallive.com
Finance Minister Arun Jaitley,
who also handles the defence
portfolio, is finding his hands are
too full. So, every now and then
he skips functions which a rak-
shamantri is expected to attend.
Last fortnight, at the last minute, he
pulled out from an Indian Navy-FICCI
conference on Warship Building
which is an annual event normally
presided over by the defence minis-
ter. Jaitley’s inability to make it to the
meet not only underlined how busy
he is, but also how important it is to
have a dedicated person handling the
defence portfolio. Perhaps the cabinet
reshuffle, predicted to follow the
Presidential polls may bring relief to
Jaitley and several others with multiple ministries
under their charge.
An inside track on
happenings in Lutyen’s Delhi
Delhi
Durbar
FINALLY, THE
CORONATION
SINGH IS
NOT KING
It now appears that the
controversial notification
regarding curbs on the
country’s cattle trade was
because of a procedural
goof-up and a premature
death. The notification was
issued five days after
Environment Minister Anil
Madhav Dave passed
away unexpectedly. It was
Dave’s brainchild and his
successor, Dr Harsh Vard-
han, was still finding his
feet when, two days later,
the notification, signed
by Dave, was issued.
Dave was a member of
the RSS and the decision
was in tune with his world
view. However, in a proce-
dural faux pas, the file was
never shown to his suc-
cessor with bureaucrats
assuming it had the
approval of higher-ups in
the government.
CATTLE
CONFUSION
DOUBLE SHIFT
One of those present at
the CWC meeting was in
for some good-natured
ribbing. Former Prime
Minister Manmohan Singh
is to be resurrected in that
role, albeit in celluloid. The
biopic on his tenure is
already being shot and is
loosely based on the
book, The Accidental
Prime Minister by Sanjaya
Baru, his former media
adviser. Dr Singh will not
be pleased with the
choice of the actor who
will play him—Anupam
Kher, who has been a
staunch supporter of the
Modi government. The
Congress is not happy
either; the film’s title is the
same as the book which
did not show Dr Singh in a
good light, or Sonia, for
that matter. Plus, it is due
for release in December
2018, shortly before the
next Lok Sabha elections.
10. The centre and Manipur submitted in the
Supreme Court that allegations levelled
against Manipur CM N Biren Singh by the
parents of a youth shot dead by Singh’s
son 2011 were false and made-up. They
alleged that there was a clear attempt to
sensationalise and extract publicity out of
the case.
Biren Singh’s son Ajay Meetai had in
March 2011 shot Irom Roger for over-
taking his car. Irom later died of bullet
wounds. An Imphal court had held Ajay
guilty of culpable homicide and senten-
ced him to a five-year jail term. Later,
Ajay had moved the Manipur High Court
for bail but the petition was challenged by
Roger’s mother.
The Supreme Court is hearing the
appeal of Irom’s mother Chitra Devi who
said that Singh was using his official clout
to threaten them and had even roped in
terror organisations to browbeat them
from pursuing the case. They had pleaded
for protection in Manipur and claimed that
they had to leave the state and come to
Delhi. They also alleged that no lawyer
was willing to take up their case in the
state. The apex court had asked the centre
to arrange for their security.
The Manipur government assured the
Court that security cover under Manipur
rifles had been provided to the parents and
the social activist who brought the case
into the limelight. The centre told the court
that the lawyer appearing for the parents,
Utsav Singh Bains (a Supreme Court
lawyer), would also be given security dur-
ing his appearances in the high court.
Bains had allegedly received threats from
the People’s Liberation Army.
However, the state government claimed
that the allegations were found to false
after scrutiny. According to it, the Manipur
Bar Association also refuted Chitra Devi’s
complaints that lawyers in Manipur were
not fighting her case.
The apex court will hear the matter
again in July.
Punish TN milk
adulterators
The Supreme Court refused to
respond to the plea of advo-
cate Mathews J Nedumpara, who
wanted a stay on a jail
term awarded by the
apex court to his client,
Justice CS Karnan of
the Calcutta High
Court. Karnan is
yet to be arrested
as per Supreme
Court’s order on
May 9 which had held him guilty
of contempt and awarded him a
six-month jail term.
The vacation bench said it cou-
ld not interfere in the order passed
by a seven-judge bench and asked
the counsel to seek relief from the
same bench. Earlier this month,
the Court had declined to list the
matter and to look into Karnan’s
plea for annulling the jail order on
maintainability grounds.
Karnan has remained untrace-
able to police teams from West
Bengal and Tamil Nadu till date.
Courts
10 June 19, 2017
Centre,
Manipur
flay Irom’s
mother
Pointing towards reports
about rampant adulter-
ation of milk by private milk
companies in the state, a
petitioner pleaded in the
Madras High Court that the
punishment mandated in the
IPC for adulteration be incr-
eased to life imprisonment.
Advocate AP Suryaprakasam
wanted the High Court to ask
the government to amend
Section 272.
Citing statements made by
the dairy development minis-
ter of the state—who had
admitted that private milk
suppliers were indeed adulter-
ating milk—the petitioner
blamed the state government
for its laxity in taking strong
action against adulterators
and for not stopping the
practice.
The High Court took str-
ict cognizance of the issue
and instructed the state gov-
ernment to update it on the
action taken so far. The
government was also asked
to file its response within
two weeks.
The government, on its
part, assured the Court that a
panel would be formed to
look into the matter. The case
is listed for June 19.
No relief for
Karnan
11. The Ministry of External Affairs must inform all
embassies, consulates or high commissions that
people coming to India must be well versed with
Indian laws, especially regarding possessing arms,
so that they do not get into unnecessary trouble,
the Delhi High Court observed. The Court was
referring to “frequency of registration of such cases
as at hand…”
The Court’s observation came while hearing sub-
missions for quashing FIRs against two foreigners
(one from the UK and another from Kenya) under
Section 25 of the Arms Act 1959. Although they had
come to India under legal visas, bullets were found
on them while they were leaving India.
The Court was convinced that there was nothing
to prove a “conscious possession” of bullets by the
foreigners. It also noted that the bullets could not be
used as the persons concerned were not carrying
any firearms. The government’s lawyer too informed
the Court that the petitioners did not know that they
were carrying bullets.
The FIRs were dismissed.
Foreignersmustknow
aboutIndianlaws
Senior BJP leaders LK Advani, Murli Manohar Joshi
and Union minister Uma Bharti were spared from
attending the Special CBI Court in Lucknow daily for
hearings in the Babri Masjid demolition case. The
Court is hearing the case on a day-to-day basis.
However, they would have to appear whenever the
court asks them.
All the three had pleaded against daily appear-
ances. While Advani and Joshi cited old age, Bharti
submitted that she had to travel extensively due to her
ministerial duties. The Supreme Court had earlier
revived conspiracy charges against all three and ins-
tructed the Court to complete hearings and give the
ruling within two years. Later, the special CBI Court
had framed charges against all three and nine others.
Empathising with prosecutors
dealing with cases under the
Prevention of Children from Sexual
Offences (POCSO) Act because of
the pathetic conditions they work
in, the Delhi High Court sought a
report from the AAP government in
July on work environment and
appointments.
The Court was at pains to high-
light the fact that these prosecu-
tors were not even
provided a private
space to enable
them to do “seri-
ous lawyering”.
They need to
draft applications,
replies, submis-
sions, refer to vari-
ous legal docu-
ments, talk to
clients, prepare
cases, get in
touch with probing officers and
scrutinise records.
For this, privacy is essential,
the Court pointed out. It lamented
that prosecutors could not be
allowed to function from open
spaces in court premises. How
could prosecutors take on top
lawyers from the other side during
hearings without proper home-
work, the Court asked.
Aclutch of petitions plea-
ding for a stay on the
centre’s recent notification
banning the sale of cattle
for slaughter in livestock
markets were struck down by the
Kerala High Court recently. The
matter will now be taken up by the
High Court on June 28 for quick
disposal.
Responding to a PIL from You-
th Congress State Secretary TS
Saji, the High Court observed that
the new rules were only related to
trading of cattle for slaughter and
there was no restrictions on slau-
ghtering cattle or eating beef.
The Court had earlier asked the
centre to file its response on ques-
tions raised on the after-effects of
the new rule, but the centre did not
get back at the time of hearing.
The Court said it would wait for
the centre’s reaction before taking
up the petitions. It asked the centre
to respond before the next hearing.
The Supreme Court too will
hear objections to the Prevention
of Cruelty to Animals (Regulation
of Livestock Markets) Rules, 2017
(Rules) on June 15.
A man from Hyderabad, Moha-
mmed Abdul Faheem Qureshi, had
approached the apex court and
claimed that the rule was uncon-
stitutional.
The Madras High Court had
earlier slapped a stay on the cen-
tre’s notification for four weeks.
| INDIA LEGAL | June 19, 2017 11
— Compiled by Prabir Biswas
Advani,Joshi,Bhartigetrelief
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Batting for POCSO
prosecutors
No stay on
centre’s cattle
slaughter order
12. 12 June 19, 2017
Briefs
Following Attorney
General Mukul Rohatgi’s
temporary extension, the ten-
ure of five other senior law
officers has also been exten-
ded. The extension is expec-
ted to be for two years, but
the interim order says it was
extended “till further orders”.
The terms of Solicitor Gen-
eral Ranjit Kumar and Add-
itional Solicitor Generals
Maninder Singh, Tushar
Mehta, PS Narasimha, PS
Patwalia and Pinky Anand
have been extended. Only
ASG Neeraj Kishan Kaul’s
term was not extended, keep-
ing in mind his letter to the
government which said he
wanted to be relieved from
the assignment.
As per the new order of
Uttar Pradesh DGP
Sulkhan Singh (below) any
individual or group suspected
of killing or transporting cattle
for slaughter, will make it nec-
essary to invoke National
Security Act (NSA). The Act
allows detention of any per-
son for three months or more.
The order was issued to all
police officials present in a
meeting in Lucknow on June
5. Singh said that the NSA,
1980, or Gangsters Act must
be invoked against criminals
indulging in cow slaughter or
transporting cows for the
same. The DGP has ordered
the officials to make sure that
the criminals do not get bail.
NSA against cow
slaughter in UP
The government will
appoint 44 judges to
different high courts
across the country. The
names had earlier been
returned by the govern-
ment to the collegium
for reconsideration.
However, the collegium
has been able to coax the
government in taking
them back. The appoin-
tees include 29 judges to
the Allahabad High
Court, two to the Karn-
ataka High Court, seven
to the Calcutta High
Court and six to the Ma-
dras High Court. This
was the second time the
list was resubmitted to
the government by the
collegiums headed by
Chief Justice JS Khehar
(left). So far 17 judges
have been appointed to
the Bombay and the
Jammu and Kashmir
High Courts.
Lawofficersgetextension
The NGT has barred
nine state pollution
control board heads for
failing to submit compli-
ance reports of appoint-
ments of chairpersons
and member secretaries
in the boards.
The vacation bench,
headed by Justice RS
Rathore ordered board
chiefs of Himachal Prad-
esh, Haryana, Uttara-
khand, Rajasthan, Kera-
la, Sikkim, Tamil Nadu,
Telangana and Maha-
rashtra to stop function-
ing, effective immediately.
The judge said: “The
judgement was delivered
in August last year and
you had to file compli-
ance report in three mon-
ths...We had given you
ample time for complying
with our directions.”
A three-month grace
period was granted to
Delhi and two months to
Punjab and UP. The mat-
ter is listed for July 4.
Govt to appoint 44
HC judges
Punjab judge objects
to “your ladyship”
NGT bars 9 state
pollution heads
The practice of doing away
with the use of “Your Lord-
ship” while addressing judges
has been a subject of discus-
sion; it is seen as a relic of col-
onial rule. An interesting ex-
change between Justice Daya
Chaudhary (below) and Advo-
cate General Atul Nanda in the
Punjab and Haryana High
Court brought up the issue to
the fore again. Nanda addre-
ssed Justice Chaudhary as
“Your Ladyship”. Justice
Chaudhary objected to this,
saying that it is “Delhi culture”
and it won’t work in the
Punjab and Haryana High
Court. She also said that judges
and advocates have no gender
and they are not to be addre-
ssed as lady judges or lady
advocates.
Solicitor General
Ranjit Kumar
13. | INDIA LEGAL | June 19, 2017 13
—Compiled by Lilly Paul
Twitter: @indialegalmedia/ Website: www.indialegallive.com
Contact: editor@indialegallive.com
Recently, the Madras High Court
issued notice to the Tamil Nadu
animal husbandry department over a
petition filed by M Ravikumar, a
part-time sweeper at the Vellodu
sub-centre for the past 17 years.
Ravikumar is working in the sub-
centre since July 20, 2000, on a
meagre salary of `2 per day without
his services been regularised. The
department had issued notification
for vacancies to the post of assistants
without considering his case. The
Court, in its notice, mentioned that
it was “inhuman” on the part of the
government to keep poor employees
like him unregularised for decades.
Sweeper moves Madras HC
The Supreme Court on June 9
directed that the government can-
not force anybody to link his Aadhaar
to his PAN for the purpose of filing his
or her Income Tax Return. This also
means that PAN remains valid even
without Aadhaar. Despite this being
an interim order—with the larger con-
stitution bench to take it up later—it
is a big defeat for the government
which introduced this rule through
the back door, in the form of Section
139AA, inserted into the Income Tax
Act by the Finance Act, 2017.
The Court also requested the legis-
lature to “tone down” the provisions of
the section. It also rejected argume-
nts by petitioner Binoy Visman that
this is violative of one’s Fundamental
Rights. The Court did not touch all
arguments associated with Article 21
as they are still pending with the lar-
ger bench.
No need to attach
Aadhaar to PAN: SC
Justice Ajay Kumar Mittal of the
Punjab and Haryana High Court is
set to be the next Chief Justice of the
Delhi High Court. The post is current-
ly handled by Acting Chief Justice Gita
Mittal. However, this decision of the
Supreme Court collegium, as reported
in the media, cannot be put in practice
before September. The sitting judge of
the Delhi High Court, Justice SS
Saron, is senior to Justice Ajay Kumar
Mittal and technically the person due
for the post. However, Justice Saron
is retiring on September 3, which is
why the new incumbent will take over
after that.
Justice Mittal to be
Delhi HC Chief Justice
Former chief ministers of Bihar, Lalu
Prasad Yadav and Jagannath Mishra,
appeared before a special CBI court in Patna
in the fodder scam case. The case is related to
the fraudulent withdrawal of `47 lakh from
Bhagalpur treasury during the financial years
1993-94 and 1994-95. The CBI had regis-
tered a case and filed a PIL against Lalu and
Mishra, along with 42 others. The Supreme
Court ruled last month that Lalu will have to
stand trial in all the four fodder scam cases.
Ahead of introducing an amendment bill
in the parliament, the government is
working towards fixing flaws of the Lokpal
and Lokayuktas Act, including capping of
the jurist member’s tenure. Currently, the
tenure of the jurist member, who would be
appointed by the prime minister-led selec-
tion committee, is not certain. The ministe-
rial panel is reportedly considering fixing
the tenure to three years. The panel has
noticed that the law has not specified basic
details, such as the location of the Lokpal
office and secretariat.
Govt to fix flaws of Lokpal Act
Ex-Bihar CMs appear
before CBI
14. Lead/ Witch-hunting
14 June 19, 2017
Y name is
Pedki Devi. I
live in a village
in Jharkhand.
When I was 15,
I was married
off. My eldest daughter was born three
years later and subsequently, I gave
birth to three more children. When I
was 35, life came to a standstill when
my husband died after an illness.
Following that, my husband’s brothers
tried to seize our land. They beat me up
brutally and labelled me a witch. I filed
a case against them. At the age of 40, I
saw a police station for the first time. I
learnt how to read and write at the age
of 45. Now I am 50 years old.”
This testimony is not recorded in a
police report but is part of a math text-
M“
Singlewomenandwidows
areoftenbrandedaswitches
tohumiliateandostracise
themandseizetheirproperty.
Whydoesthisreprehensible
practicecontinueunchecked
andareourlawsstringent
enoughtoproviderelief?
By Shankar Sinha
and Meha Mathur
18-YEAR-OLD STRUGGLE
Pedki Devi (right) labelled
as a “witch”;
(below right) a textbook
chapter on maths in
Jharkhand sketches
her tragedy
Diabolic
Persecution
15. licly humiliated.
Neighbours are either unwilling to
talk about the incident or are petrified
to express their support. One aged
woman who saw Pedki Devi distraught
on the ground, covered with excreta
over her face and had offered her water,
now categorically denies she saw any
crime being committed. She says she
had merely offered water to a woman in
distress. And one of the accused, Srikant
Mahato, denies being present in the vil-
lage on that fateful day in 1999. He also
denies that he or his family members
were after Pedki Devi’s property.
But the truth lies elsewhere and it
came into the public domain because
Pedki Devi filed a case and decided
book, Ganit ka Jaadu (The Magic of
Maths), of the Jharkhand Education
Project for Class III students. And the
unfortunate story is followed by an exer-
cise in which students have to mark,
next to an illustration of a woman, the
milestones of Pedki Devi’s life.
The cruelty of it is that it is not fic-
tional. The real life Pedki Devi is still
running from pillar to post to get justice
against the atrocity perpetrated against
her in 1999. Like so many other cases of
crimes against women being relegated
to mere statistics, this case too has been
reduced to an exercise in a textbook for
school students.
But the humiliation and cruelty that
Pedki Devi of Kherabera village endured
in March 1999 has not been captured in
the bland account in the textbook. She
can, however, still recall the day when
her husband’s brothers pounced on her
as she was returning from the fields.
They dragged her and stripped her,
forced her to ingest excreta and urine
and beat her mercilessly. They conve-
niently branded her a witch—the evil
force that killed her husband.
When her daughters saw their moth-
er being assaulted, they rushed to her
rescue, but they too were beaten up.
One of them, Purni, suffered a miscar-
riage as a result. Pedki Devi spoke to
India Legal’s sister channel APN, about
the pain and humiliation meted out to
her some 18 years ago. And as she faced
the camera in front of her ramshackle
mud home, one could see the 12 acres of
land which had become the bone
of contention. Pedki Devi vividly
remembers the spot where she was pub-
| INDIA LEGAL | June 19, 2017 15
Brandingwomenaswitchesismoreofatoolusedbylandgrabbersto
deprivefamiliesoftheirproperty.Itisalsousedasaweaponof
revengeagainstwomenwhorefusetoyieldtosexualadvances.
16. she would not take the humiliation lying
down. In 2004, a trial court sentenced
the culprits to one to four years in
prison. But they went in appeal to the
Jharkhand High Court which granted
them bail.
CASE DITHERS
Unfortunately, Pedki’s lawyer dithered,
for reasons best known to him, in pursu-
ing the matter in court. He did not
inform his client about the hearings and
as a result, she failed to turn up in court
twice on appointed dates. The case soon
lost direction. Meanwhile, the embold-
ened in-laws began to openly threaten
Pedki and her family with dire conse-
quences. There are allegations that they
may have had a hand in ensuring that
the case languished in the courts.
It is clear that seizing property was
what motivated the in-laws to label
Pedki Devi a witch. While rural soci-
eties, where superstition reigns
supreme, do resort to occult practices to
“neutralise” evil forces or for healing
purposes, the branding of old and wid-
owed women as witches is a matter of
convenience. Often, the real motive is to
throw them out of their property or to
abandon them if they are becoming a
financial burden for the family.
Arun Kumar Naik of Jeet, an NGO
that is working in Jharkhand, explains
the modus operandi: a scare is deliber-
ately created around a person, usually
an old destitute woman. At times, young
women are also targeted as witches, and
in such cases, the motive is more often
than not sexual exploitation.
Once branded, the woman
becomes an outcast in her own village
16 June 19, 2017
T
here are several laws that deal
specifically with witchcraft and
“witch” related offences. The first
was the Prevention of Witch (Dayan)
Practices Act 1999 enacted by Bihar.
Later, when Chhattisgarh and Jharkhand
were created in 2001, they too enacted
laws to address the witches issue. Both
adapted the 1999 Act.
Jharkhand introduced the Prevention of
Witch-hunting (Dayan Pratha Act) in 2001
and Chhattisgarh passed the Tonahi
Pratadna Nivaran Act in 2005. Later,
some other states followed suit.
It was a high court directive to Odisha
that led to the enactment of the Odisha
Prevention of Witch-hunting Act 2013.
The Odisha initiative was followed two
years later by Rajasthan passing the
Rajasthan Prevention of Witch-hunting
Act 2015. In the same year, the Assam
Witch-hunting (Prohibition, Prevention
and Protection) Bill was passed and
awaits enactment since it was sent back
to the state by the Union home ministry
for review.
Two bills—the Maharashtra
Prevention and Eradication of Human
Sacrifice and Other inhuman, Evil and
Aghori Practices and Black Magic Bill
and the Karnataka Prevention of
Superstitious Practices Bill—have been
passed but not yet enacted. Both
address the problem of witch-hunting.
So far so good. But the big question
is how effective are the enacted laws on
the ground? Partners in Law, a Delhi-
based legal resource group working in
the fields of social justice and women’s
rights, conducted an 18-month study in
Jharkhand, Bihar and Chhattisgarh. Their
2015 report—Contemporary Practices in
Witch-Hunting: Social Trends and
Interface with Law—spells out the prob-
lem areas in laws dealing specifically
with witch-hunting.
The study reveals what is wrong with
the criminal justice system. For example,
in one-third of cases, the victims never
approached the police or were prevented
from doing so by vested interest or rela-
tives. Many of the cases registered were
closed because of shoddy investigation,
lack of evidence and witnesses or a
compromise being worked out between
the victims and the perpetrators.
It is only when publicly orchestrated
violence occurred that the police took it
seriously. To quote the report: “Based on
our data, we can infer that the law inter-
acts with victims only when physical vio-
lence involving public humiliation is
involved, but such cases do not proceed
to the appellate courts unless they per-
tain to or result in murder.” In short, the
state does not normally appeal against
acquittal in cases of witch-hunting.
According to the report, the special
laws on witch-hunting on paper focus on
preventive action and addressing
harassment where the motive is clearly
linked to “witch” accusation. These laws
criminalise the acts of “identifying” and
“exhibiting” any person as a witch along
with the mental and physical torture
which accompanies it. All the offences
under the special laws are cognisable
and non-bailable. They seek to prevent
escalation of victimisation through early
intervention by the police.
H
owever, very few reported cases
are registered under the new
laws. The study examined 85 FIRs
and found that only six were registered
solely on the basis of special laws. Notes
the report: “The data categorically shows
that the mischief that the special law was
enacted to correct remains unaddressed,
with no action or prosecution against
preliminary forms of harassment. In fact,
the data establishes that special laws are
rarely, if ever, used alone, and almost
never at the preliminary stages to pre-
vent escalation of violence. Our data
from police records show that almost all
cases are registered under provisions of
the Indian Penal Code (IPC), with one or
more provisions of the special law, to
establish if it (witch-hunting) were the
motive of the crime. The majority of the
provisions of the IPC invoked in the
records are related to beating, hurt, tres-
pass, theft, murder, conspiracy, etc—with
more bailable rather than non-bailable
offences being invoked.”
According to police officials, the IPC
is invoked since the special laws are not
comprehensive enough to deal with
LawsandLimitations
Lead/ Witch-hunting
17. | INDIA LEGAL | June 19, 2017 17
defamation, trespass, intimidation, van-
dalism, destruction of property or mur-
der. So, even when the new laws are
invoked, it is in conjunction with the IPC.
The police find it easier to frame their
cases under the existing laws.
S
ashiprava Bindhani, Odisha’s infor-
mation commissioner, who filed a
PIL in the High Court which led to
the enactment of the special law in the
state in 2013, speaks of how women
who break from conventions are usually
the targets of witch-hunts. “Having
grown up in the Mayurbhanj district of
Odisha, I observed the exploitation per-
petrated through witch-hunting against
women who threatened social struc-
tures.” She is of the view that since the
legislation has come there is some
change--cases are being registered and
people are sympathetic to the victims.
However, legal experts do not see any
dramatic change.
So, have the special laws helped?
Madhu Mehra, executive director of
Partners in Law, and Anuja Agarwal,
associate professor, department of soci-
ology at Delhi University in a joint paper
published in The Economic and Political
Weekly have this pertinent observation
to make: “The parading of women, ton-
suring the hair and blackening the face
are forms of violation that involve more
than physical injury, as they intend and
result in humiliating the victim, destroying
her social standing and dignity in the
community. These need to be part of the
penal code, given their social reso-
nance—although largely associated with
caste atrocities perpetrated against
Dalits, there is increasing evidence that
such victimisation is also used to
punish social and sexual transgressions,
which may or may not take the form of
witch-hunting.”
Thus, the new laws may have filled a
legal vacuum but do not look at the
socio-economic situation that encour-
ages witch-hunting. It is known that it
thrives in areas where there is lack of
education, economic depravity, health
facilities and access to justice. But the
criminal justice system continues to see
the malaise as one rooted in irrational,
barbaric practices and superstition. This
is even reinforced in several judgments,
one of which calls it a tribal custom of
the “Middle Ages” which is perpetuated
till today.
Any law or amendments made to an
existing Act has to factor the socio-eco-
nomic context rather than see witch-
hunting as merely an irrational act
guided by superstitious beliefs.
Also, the motives for witch-hunting
have changed over the years. Laws
have to take into account the present-
day reality.
Illustration: Anthony Lawrence
18. and is ostracised.
The problem is not endemic to
Jharkhand alone. One hears similar
stories from across the country—of
women being branded as witches and
blamed for the death of a family mem-
ber, the failure of a crop or any other
untoward incident.
SOME EXAMPLES
Here are a few illustrative instances:
Badar village, Balrampur district,
Chhattisgarh, 2016: A 35-year-old
woman is beaten to death by her broth-
er-in-law and his son on suspicion that
she is responsible for a child’s death
Mayangi village, Odisha, 2015: A 35-
year-old woman is accused of being a
witch and forced to eat excreta
Anglong district, Assam, 2014: A
gold medalist in javelin who represented
the state in several national meets, is
tied up in a fishing net and brutally
beaten up by villagers on suspicion that
she indulged in witchcraft
Smit village, Shillong, Meghalaya,
2013: Twelve persons arrested for the
lynching of three in a case of witch
hunting. The accused were reportedly
related to the victims
The statistics from various states on
witchcraft-related murders is, to say the
least, shocking (see box). However, the
situation in Jharkhand is the worst.
Social activist Ajay Kumar Jaiswal, who
has been working at the grassroots level
in the state for the last 26 years says
that his team surveyed 332 villages last
year and found 300 cases of women
being harassed as witches. He says:
“Jharkhand has 32,000 villages and
every village has such cases. So, thou-
sands of women are suffering. We need
a very big awareness campaign to eradi-
cate this problem.”
Dr Louis Marandi, Jharkhand’s min-
ister for social welfare, women and child
development and minority affairs says
the government is doing its bit through
campaigns using street theatre and
workshops. But, she admits it will be a
long haul: “We can’t eradicate the prob-
lem completely. We can’t be watching
over people 24 hours a day,” she says
adding that she has no knowledge of the
Pedki Devi case. “If you give us all the
papers and her story, we will try to pro-
vide her protection through the local
administration.”
Jharkhand is among the few states to
have enacted a specific law—the
Prevention of Witch Practices Act, 2001.
Other states also have laws in place to
counter the malaise (Accompanying
story). But these have not had the
desired impact.
This is perhaps why activists like
Jaiswal point out that the new law is not
an effective deterrent in Jharkhand.
“One year of punishment and `2,000 as
18 June 19, 2017
Lead/ Witch-hunting
Tribalsocietiesalwaysbelievedin
goodandevilspirits.Thegood
spiritsauguredwellnessandheal
people.Theevilforcescould
wreakhavocandcausedisasters.
“Medicalfacilitieshavenotreached
manypartsofthecountry.Andin
Jharkhandthereisadeep-seatedbelief
thatsomepeoplehavethesupernatural
powerofhealingaswellasdestroying
things.So,ifsomethinggoeswrong
youendupblamingthatperson.”
—SubhashMendupurkar,directorof
theSocietyforUpliftmentthrough
RuralAction
“Wecan’teradicatetheproblem
completely.Wecan’tbewatching
overpeople24hoursaday...Ifyou
giveusallthepapersandPedkiDevi’s
story,wewilltrytoprovideherprotec-
tionthroughthelocaladministration.”
—DrLouisMarandi,Jharkhand’s
ministerforsocialwelfare,women
andchilddevelopmentand
minorityaffairs
“Jharkhandhas32,000villages
andeveryvillagehassuchcases.
So,thousandsofwomenare
suffering.Weneedaverybig
awarenesscampaigntoeradicate
thisproblem.”
—AjayKumarJaiswal,socialactivist
whohasbeenworkingatthegrass-
rootslevelinthestateforthelast
26years
19. fine is hardly a punishment.” According
to him, a more stringent punishment is
required like the Rajasthan Prevention
of Witch-Hunting Act, 2015 which pro-
vides for seven years rigorous imprison-
ment extending up to a life term, and/or
`1 lakh fine. This, he said, is more in
keeping with the nature of the crime.
THE ORIGINS
Tribal societies always believed in the
tradition of good and evil spirits. The
good spirits, it was believed, could bring
about wellness in the community and
heal people. The evil forces, on the other
hand, could wreak havoc and cause nat-
ural disasters like floods, famine, disease
or drive away the rain. In tribal commu-
nities, it was a woman who was
endowed with the power of healing.
However, the line between good and
evil was always a thin one. Traditionally,
it was the all-knowing “Mahan” or seer
of the village who identified the woman
with the evil force residing inside her.
She would be branded as a witch, parad-
ed naked and killed and her family
members ostracised. Anthropologists
like KS Singh, former director of the
Anthropological Society of India, have
been quoted as saying that the concept
of black magic and white magic got fur-
ther underlined after India became
colonised by the European powers.
Subhash Mendupurkar, director of
the Society for Upliftment through
Rural Action (SUTRA), has worked
extensively in Jharkhand. He traces the
problem to lack of medical care.
“Medical facilities have not reached
many parts of the country. And in
Jharkhand there is a deep-seated belief
that some people have the supernatural
power of healing as well as destroying
things. So, if something goes wrong you
end up blaming that person. Once mod-
ern medical facilities are made accessi-
ble such beliefs will fade away,” he says.
But today, branding women as witch-
es is more of a tool used by land grab-
bers to deprive families of their proper-
ty. It is also used as a weapon of revenge
against women who refuse to yield to
sexual exploitation. Also, the campaign
of a political party is sometimes
derailed, particularly within tribal areas,
by branding one of its activists as a
witch. Such exploitative behaviour is
sought to be explained as part of local
customs and therefore, acceptable.
While stringent laws will help,
changing societal attitudes and mindsets
is the real challenge. Forget a tribal state
like Jharkhand, we have a situation
where even in a cosmopolitan city like
Mumbai, a leading Bollywood actor was
recently accused of practicing witchcraft
by her embittered ex-boyfriend.
Superstition, as they say, runs deep.
And there are enough people waiting to
exploit the vulnerable.
—With inputs from
Rafi Sami and Irfan Amayur
| INDIA LEGAL | June 19, 2017 19
2015 NCRB figures on registered
witchcraft-related murder cases:
States
No. of
Cases
Jharkhand 32
Odisha 26
Madhya Pradesh 20
Telangana 14
Gujarat 13
Chhattisgarh 13
Maharashtra 5
Karnataka 5
UP 3
Bihar 2
Tripura 1
Andhra Pradesh 1
TOTAL 135
ListofShame
WASHING HIS HANDS OFF
One of the accused in the Pedki Devi case, Srikant Mahato, has denied his involvement
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
20. 20 June 19, 2017
F you are a VIP’s son or daughter,
chances are that largesse will be
showered on you by the state even
without you seeking it. Ask Raktim
Gogoi, Supreme Court judge Ran-
jan Gogoi’s son, who was chosen
as one of the lawyers to represent the
Punjab government in the apex court
and other courts outside Chandigarh.
The selection came as surprise for him.
However, after the lawyers list was
released in March 2017, he wrote to
the Punjab government to withdraw
his name as it was included without
his consent.
Similar was the experience of Saket
Sikri, son of Justice AK Sikri of the
Supreme Court. He wrote a letter to the
Punjab government requesting that his
name be removed from the list. Sikri
told India Legal: “I wrote to have my
name withdrawn as my consent was
Cloutand
Lineage
Theappointmentofgovernmentlawyersandadvocate
generalshasoftenbeenquestionedbecausetheyaremostly
connectedtoministersandjudges.Thisleavesethical
lawyersfeelingshortchanged
By Usha Rani Das
I
APPOINTMENT
LETTER
Illustration: Anthony Lawrence
Focus/ Standing Counsels
21. | INDIA LEGAL | June 19, 2017 21
not taken. I did not even apply for the
post.” But he refused to comment on
why his name was included in the list in
the first place.
Were these cases of misdirected
favouritism? There is no way of conclu-
sively determining that. But one can say
that some lawyers are favoured over oth-
ers and the reason may not always be
professional competence.
Remember, there was a controversy
over an appointment in Madhya Pra-
desh in November 2014 when Aditya
Shankar, son of Union Minister of Law
and Justice and Information Technology
Ravi Shankar Prasad, was appointed as
the standing counsel of the state govern-
ment in the apex court. Immediately
after the appointment, BS Banthia, who
was the standing counsel of Madhya
Pradesh for 12 years, raised objections,
alleging it to be a case of “favouritism”.
He said that Shankar was appointed
to represent the state in the apex court
though he had not passed the man-
datory Advocate-On-Record (AOR)
examination.
Banthia was quoted by a newspaper
as saying that “his only qualification is
that he is Ravi Shankar Prasad’s son”.
The Congress party had also raised
objections, with its then leader of the
Opposition in the Madhya Pradesh ass-
embly, the late Satyadev Katare, point-
ing out that the post should have gone
to someone from the state, and not an
outsider like Shankar.
When Aditya Shankar was contacted,
he told India Legal he had suspected he
was being favoured and had hence rej-
ected the MP government’s offer twice.
He said: “I knew I was being appointed
because I was Ravi Shankar Prasad’s
son. It had nothing to do with my cre-
dentials…. But when they offered me the
position a third time, I took it as a chal-
lenge and accepted it. As soon as the
allegations came in February 2015, I
quit the office the following month and
joined Kaden Boriss (a law firm). It is
also true that I did not pass the exami-
nation but we all know that the Advo-
cate-On-Record examination is just a
formality.”
LINEAGE COUNTS
Instances of such appointments are apl-
enty in the Supreme Court and High
Courts of different states. While Aditya
Shankar resigned and Gogoi and Sikri
refused the offer, there are many gov-
ernment lawyers who, though they
were appointed thanks to their political
affiliations, enjoy the benefits with im-
punity. Legal experts note that over the
years, the post of state counsels and
advocate generals have become political
appointments.
The list of advocate generals selected
by the Madhya Pradesh government
over the years is telling. Pushpendra
Kaurav, who became the additional ad-
vocate general for Madhya Pradesh gov-
ernment on June 6, 2017, is alleged to
have got the post thanks to his affilia-
tions with the RSS. He was earlier asso-
ciated with the ABVP, the student wing
of the RSS, during his student years. He
started his career as a lawyer in 2001
un-der the tutelage of his maternal
uncle and BJP leader Virendra Singh
Choudhary. Kaurav had barely complet-
ed seven years as a lawyer when the
Shivraj Singh Chouhan government
appointed him deputy advocate general.
He was later promoted as additional
advocate general.
Kaurav succeeded Ravish Chandra
Agrawal, who landed the post allegedly
on the recommendation of former advo-
cate general and senior BJP leader, Ravi
Nandan Singh. Before Agrawal, senior
lawyer from Gwalior and BJP leader RD
Jain was the Madhya Pradesh advocate
general. He had succeeded another BJP
leader Ravi Nandan Singh, the first
advocate general, after the BJP came to
power in the state in 2003.
In the Congress government prior to
that, then chief minister Digvijaya Singh
had appointed Vivek Tankha as advo-
cate general. Tankha, who is now a
Congress Rajya Sabha MP and senior
Supreme Court lawyer, was just 43 then.
His father-in-law late Colonel Jay
Narayan Mushran was the finance
"IknewIwasbeing
appointedbecauseIwas
RaviShankarPrasad’s
son.Ithadnothingtodo
withmycredentials.…As
soonastheallegations
came,Iquittheoffice.”
—AdityaShankar,sonof
UnionMinisterRavi
ShankarPrasad
“Iwrotetohavemy
namewithdrawnas
myconsentwasnot
taken.Ididnoteven
applyforthepost
(ofgovernment
counsel).”
—SaketSikri,sonof
JusticeAKSikriof
theSupremeCourt
A2012CAGreportforHaryana
foundthatthesystemofappoint-
mentoflawofficersfollowedin
thestatedoesnotevenassess
themanpowerrequirement.
22. 22 June 19, 2017
minister in the Digvijaya Singh cabinet.
Political appointments of law officers
are rampant in Haryana and Punjab
too. An RTI query by advocate Pradeep
Kumar Raparia reveals that none of the
applications received for the post of ad-
vocate general of the Punjab and Harya-
na government were invited or received
from those appointed. His RTI even
found that resumes of the applicants
were asked after they were appointed by
the state government. He alleges that a
majority of those appointed as standing
counsels and advocate generals were
kith and kin of ministers, political lead-
ers, senior bureaucrats, high court
judges, police officers and MLAs of the
ruling parties in the two states.
COURT OBSERVATIONS
Such appointments take place despite
the 2016 Supreme Court ruling in State
of Punjab & Anr vs Brijeshwar Singh
Chahal & Anr. The apex court had ruled
then that “appointment of Government
Counsel must, like the discharge of any
other function by the Government and
public bodies, be only in public interest
unaffected by any political or other
extraneous considerations. The govern-
ment and public bodies are under an
obligation to engage the most compe-
tent of the lawyers to represent them in
the Courts for it is only when those
appointed are professionally competent
that public interest can be protected in
the Courts”.
The bench headed by then CJI, TS
Thakur, had regretted that “the states
continue to harp on the theory that in
the matter of engagement of state coun-
sels, they are not accountable and that
engagement is only professional and/or
contractual, hence, unquestionable. It is
too late in the day for any public func-
tionary or the government to advance
such a contention, leave alone expect
this court to accept the same”.
Punjab, Haryana and Madhya Prade-
sh are not the only states that are exp-
loiting the system. Tamil Nadu too is
filling the post of standing counsels in
the High Court with lawyers who enjoy
a cordial relationship with the party in
power. The minute there is a change of
government, the standing counsels will
either be immediately replaced or will
themselves relinquish their posts. This
is an age-old practice prevailing in the
state for the past 50 years.
The appointment of kith and kin that
have attracted notice could well be just
the tip of the iceberg. India Legal found
in its investigation that since the AOR
exam is not mandatory to be appointed
as a standing counsel, this is being wide-
ly exploited. According to a former stan-
ding counsel, the irony is that those who
have not passed the exam have to hire
an AOR lawyer to file a case in Supreme
Court, which in turn increases the exp-
enses the state has to bear—which is an
unfair practice since it comes from the
public exchequer. “For a standing coun-
sel to be an AOR lawyer is in public
interest,” he says.
According to a source, there are even
instances where an individual is the
standing counsel of three states. For
example, advocate CD Singh is the
standing counsel of Madhya Pradesh,
Uttar Pradesh and Chhattisgarh.
Though there is no rule that prohibits
this, it is quite impossible for an individ-
ual to handle the responsibilities of
three states, said the source. If we look
at the history of standing counsels, he
added, it is ripe with examples of rela-
tives of VIPs getting the post though
they may be “unfit” for the job.
ARBITRARY APPOINTMENTS
A 2012 Comptroller and Auditor
General (CAG) report for Haryana fou-
nd that the system of appointment of
law officers followed in the state does
not assess the manpower requirement,
leave alone any worthwhile process of
selection. The result is that more than
half of those appointed were without
any work, resulting in payment of idle
salaries. The report stated: “The engage-
ment of excess Law Officers without
assessing the quantum of work and
without resorting to fair and transpar-
ent selection method, resulted in allow-
“Acertaindegreeofcom-
petencewasrequired....
Havesomemercyonthe
courtstoo.Mereconnec-
tionwithpoliticians
shouldneverbethecrite-
riatoappointanadvocate
asgovernmentlawyer.”
—SupremeCourt
benchheadedbyCJI
JSKhehar
“Thestatescontinueto
harponthetheorythatin
thematterofengagement
ofstatecounsels,theyare
notaccountable….Itis
toolateinthedayforany
publicfunctionaryorthe
governmenttoadvance
suchacontention.”
—SCbenchheadedby
formerCJITSThakur
Thestatesclaimthattheyare
undernoobligationtofollowany
definitemethodwhileappointing
lawofficersasit’saprofessional
engagement.
Focus/ Standing Counsels
23. | INDIA LEGAL | June 19, 2017 23
ABOVE APPEASEMENT:
The Supreme Court has on numerous
instances emphasised probity in legal posts
ing more than 50 percent Law Officers
without work and payment of idle salary
of `2.22 crore.”
In fact, in State of Punjab & Anr vs
Brijeshwar Singh Chahal & Anr in the
Supreme Court it was argued that with-
out a proper system, the appointments
may be made not because they are
required but because “they come handy
for political aggrandisement, appease-
ment or personal benevolence of those
in power towards those appointed”.
Not just that. Dismissing a plea by
the Bihar government to grant it a free
hand in appointing government lawyers,
the Supreme Court had observed in
March, 2017, that a government lawyer
should be appointed on the basis of an
advocate’s performance in courts and
not his political connections. The bench
headed by Chief Justice JS Khehar,
Justices DY Chandrachud and Sanjay
Kishan Kaul stated: “The cases involv-
ing the governments were crucial in
many aspects touching key areas of gov-
ernance. A certain degree of competence
was required from the advocates to rep-
resent the government and render mea-
ningful assistance to the courts. Have
some mercy on the courts too. Mere
connection with politicians should never
be the criteria to appoint an advocate as
government lawyer.”
In yet another petition that broke the
cycle of political appointments in Tamil
Nadu, advocate Vengadessane Vasantha-
kumar had asked the Madras High
Court to issue directions to the govern-
ment to follow prescribed rules and reg-
ulations in the appointment of standing
counsels for various state departments.
The first bench of the Court headed by
the then Chief Justice Sanjay Kishan
Kaul in August, 2016 directed the Tamil
Nadu government to devise rules and
regulations for the appointment of gov-
ernment counsels. The procedure laid
down by the Madras High Court was:
The Advocate General of the state of
Tamil Nadu should send a list of the
names to the government.
The Advocate General will then send
the list to the government.
A team of senior government officials
will scrutinize the list and then appoint
the standing counsels.
Two senior advocates of the Court to
be appointed as amicus curie
But Vasanthakumar has refused to
accept the proposals. He says: “There is
no transparency in these proposals. For
example, on what basis will the AG sel-
ect an advocate and send his name to
the government for his or her appoint-
ment as standing counsel? As soon as
the court opens after the vacations, we
will take up the issue before the first
bench which originally gave directions
to the government.”
There is also a controversy relating to
the AOR exam. Clearing it is only man-
datory for a standing counsel if he has to
file cases in the Supreme Court. But why
is it often referred to as a mere formali-
ty? A Supreme Court advocate had this
explanation: “The questions for the
AOR exam are prepared by lawyers and
whoever is well-connected can get hold
of them well in advance. It hardly takes
a month to prepare and pass the exami-
nation. Hence, practically speaking, it is
just a formality.”
The states claim that the engage-
ment of state counsels is a professional
engagement and hence they are under
no obligation either to prescribe a pro-
cedure or follow any definite method
while making such appointments. This
is indeed a convenient position to take.
India Legal was given to understand
that a standing counsel cannot be dis-
missed till the government of the day
decides to change him/her. This and
other arbitrary policies give political
parties in power the leverage to bestow
largesse on those they wish to favour.
(With inputs from Vipin Pubby in
Chandigarh, Ramasubramanian in
Chennai, Rakesh Dixit in Bhopal and
Neeraj Mishra in Raipur)
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
TheSChasruledthatthe
appointmentofgovernment
counselmustbe inpublicinter-
est,unaffectedbyanypoliticalor
otherextraneousconsiderations.
Anil Shakya
24. States/ MP/MLA Murder
24 June 19, 2017
N eight-year-old murder
case has come to haunt
Madhya Pradesh General
Administration
Department minister Lal
Singh Arya. He was
accused of killing Congress MLA
Makhan Lal Jatav on April 13, 2009,
when the latter was campaigning for the
Lok Sabha candidate for Bhind seat,
Bhagirath Prasad.
Although the Gwalior bench of the
Madhya Pradesh High Court quashed a
non-bailable warrant against Arya on
May 31, he is still not out of the woods
as yet as the Court pointed out two legal
flaws in the Bhind trial court’s order,
which was passed on May 19. The Bhind
court had made Arya an accused after
booking him under Sections 302 and
120 (b) (conspiracy). However, the court
stayed an arrest warrant to give the
minister an opportunity to argue.
HC RULING
The High Court’s single-bench of Justice
Sheel Nagu ruled that Bhind’s trial
court judge had no power under the
Criminal Procedure Code to stay his
own order passed on the same day.
Arya’s counsel Surendra Singh argued
that the petitioner was made an accused
on weak evidence and without his side
being heard.
Arya was named the main accused by
Jatav’s family members and three eye-
witnesses. But the police ignored these
charges and instead, relied on Arya’s
security guard who did not name any-
one. The CBI, which later took over the
high-profile investigation, spared the
minister for “lack of evidence” against
him. This is not surprising, as from the
beginning, this case was characterised
by political opportunism and shoddy
investigation.
However, the most stunning volte-
face was seen in the case of Bhagirath
Prasad, Bhind’s Lok Sabha candidate for
whom Jatav was campaigning when he
was shot dead in 2009. Prasad had cate-
gorically stated then that Arya had got
Jatav murdered. However, following the
Bhind court’s May 19 order, he said:
“Despite my statement, the CBI and the
police had found no evidence against
Arya. Even I did not have concrete evi-
dence that Arya had ordered the killing.
My statement at best was noncommit-
tal.” He said attempts to target him were
“politically motivated”.
Incidentally, Prasad was principal
secretary (home) till he took voluntary
retirement in 2007. He contested the
2009 Lok Sabha elections as a Congress
candidate but lost. However, he got a
ticket again in 2014, but defected to the
BJP and won from Bhind.
POLITICAL RIVALRY
It all began in the November 2008
assembly elections when Makhan Lal
ThekillingofaCongressleaderhasexposedthisstate’s
penchantforpoliticalvendettaandwiththegovernment
backingtheaccusedminister,hecouldwellgoscot-free
By Rakesh Dixit in Bhopal
Open and
Shut Case?
THE PAST COMES TO HAUNT
Congress MLA Makhan Lal Jatav (above)
was killed on April 13, 2009 and MP
minister Lal Singh Arya was accused in
the caseA
25. | INDIA LEGAL | June 19, 2017 25
Jatav, a little-known Congress worker,
clashed with two-time BJP MLA Lal
Singh Arya for the Gohad seat and won,
taking everyone by surprise. As a
shocked Arya licked his wounds, Jatav’s
supporters further infuriated the BJP
leader by hurling stones at him in a
function. Arya had filed an FIR against
Jatav and his supporters. On April 13,
2009, during campaigning for the Lok
Sabha election, both Jatav and Arya
came face to face at Chharenta village in
Gohad around 8.15 pm. According to
three eyewitnesses, Jatav was sitting in
the front seat of his Bolero with his son,
Arvind, while his two armed guards sat
behind. He had halted the car and was
speaking to villagers when two persons
walked up and shot him twice. Arvind
told the police he heard Arya shout:
“Makhan ko maro, bachna nahi paye
(Kill Makhan, he should not escape).”
Eyewitnesses said Arya was present at
the scene.
ACCUSED MURDERED
As the Congress mounted pressure for
Arya’s arrest, the BJP government of
Shivraj Singh Chouhan handed over the
probe to the CBI. After investigation,
the CBI identified six persons as accused
and chargesheeted them in the special
court in Bhind. Arya was excluded.
Of these six, Tej Narayan Shukla was
found murdered under mysterious cir-
cumstances at his farmhouse in 2014
when he was out on bail.
Senior Congress
leader Dr Govind Singh
claims that Shukla was
in his party but later
aligned with Arya.
Shukla was reported to
be angry with Jatav for
raising some land dis-
pute related to him in
the state assembly.
Singh claimed the
deceased had expressed
apprehensions that
Arya could get him
murdered. The murder
case dragged on till
April this year when
the CBI finally filed an
affidavit saying Arya was innocent as his
name figured neither in the FIR nor in
the chargesheet filed by it.
EYEWITNESS ACCOUNTS
Jadav’s son Arvind countered the CBI
affidavit, and filed an application to
include Arya as one of the accused
under Section 319 of the IPC. Arvind’s
lawyer, Ram Pratap Kushwaha, told the
Court that his client had submitted a
similar application soon after the mur-
der also but the police chose to rely on
the gunman’s FIR which did not name
Arya. Arvind’s elder brother, Ranveer,
said that his father’s guard, a govern-
ment employee, had deliberately avoid-
ed naming Arya, but there were other
eyewitnesses too whose accounts
eventually prevailed, leading to the
arrest warrant.
The Court order spurred the
Congress and a delegation of the party
led by the leader of opposition, Ajay
Singh, called on Governor OP Kohli
on May 27 to seek the dismissal of the
minister on moral grounds. However,
Arya told journalists that the CBI had
given him a clean chit. “My counsel
applied for quashing the warrant execu-
tion, which the high court has permit-
ted,” said Arya.
However, the BJP has backed the
minister, with state party president
Nandkumar Chouhan saying there was
no need for him to resign. After the
High Court ruling, Chief Minister
Shivraj Singh Chouhan too said the
question of the minister’s resignation
does not arise.
Probity in high places seems to be in
short supply.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
AftertheHighCourt
ruling,Chief
MinisterShivraj
SinghChouhansaid
thatthequestionof
Arya’sresignation
doesnotarise.
Themost
stunning
volte-facewas
ofBhagirath
Prasad(right),
Bhind’sLScan-
didateforwhom
Jatavwascam-
paigning,when
hewasshot
dead.
UNI
26. 26 June 19, 2017
OR 19-year-old Fida Fathima
from Kozhikode, the legal bat-
tle she won in the Kerala
High Court to protect her reli-
gious rights under Article 25
(1) of the Indian Constitution
was a significant one—both as a citizen
and as a Muslim. The young girl was
forced to take legal recourse after she
received her admit card for the MBBS
entrance examination conducted by the
All India Institute of Medical Sciences
(AIIMS) on May 28.
What upset Fathima was that the
admit card listed items which candi-
dates were prohibited from bringing/
wearing into the examination hall and
this included “headgear and scarf”. This
was not acceptable for Fathima who had
covered her head with a hijab since
childhood in accordance with the prac-
tice prescribed by her religion. She
decided to go to court.
CONSTITUTIONAL RIGHT
On May, 24, the Kerala High Court
upheld the plea filed by Fathima and
three others and ruled that the direc-
tions issued by AIIMS are a direct
infringement of Article 25 (1) of the
Constitution of Indian which says “…all
persons are equally entitled to freedom
of conscience and the right to freely
profess, practice and propagate any reli-
gion of one’s choice”. The Court, while
passing the judgment, directed AIIMS
to ensure that “the restrictions as
regards to use of headgear/head scarf
should not be enforced against candi-
dates who by virtue of Article 25 (1) of
the Constitution have the protection to
wear such dress as part of their faith.’’
An elated Fathima says that she was
immensely pleased that she could take
the examination on May 28 without
F
A Matter of Faith
TheKeralaHighCourt’sdirectiontoAIIMStorespectreligiousrightsguaranteedunder
theconstitutionandallowMuslimwomentowearahijabwhileappearingforan
entranceexam,overturneda2015rulingbytheSupremeCourt
By Naveen Nair in Thiruvananthapuram
States/ Kerala/ Religious Attire
Photos: Anil Shakya
27. the Board to frame proper rules
that do not infringe on the reli-
gious rights of candidates.
The CBSE was in for further
embarrassment when girl stu-
dents cutting across religious
barriers raised a hue and cry
about the totally unethical way
in which they were frisked and
checked at exam centres. One in
Kannur, North Kerala was in the
eye of storm when students
alleged that even their under-
garments were checked. “It was
so humiliating. The invigilator
asked me to unhook my top
innerwear to check. I was so dis-
turbed that I could not write the exami-
nation,’’ a student told the media.
After the huge outcry, an investiga-
tion was initiated by the State Human
Rights Commission which also visited
the school in which the incident
occurred and suspended four invigila-
tors. Kerala Chief Minister Pinarayi
Vijayan also directed the district admin-
istration to initiate criminal proceeding
against the school.
Advocate Fathima Thahaliya, who
was one of the petitioners along with
Fida Fathima and others at the High
Court in the latest case, says it is com-
mendable that the High Court ruled in
their favour despite the Supreme Court
taking a different stand in 2015. “These
are times when everything is being
questioned—from what we wear to what
we eat. So it is absolutely important to
question such rules at the moment.
When it is known that a highly sensitive
issue is involved, why frame such rules?
If it’s for preventing malpractice then
there are many other mechanisms that
can be used,’’ she says.
The Kerala High Court’s recent
ruling only reinforces that the funda-
mental rights enshrined in Article 25 (1)
are indisputable and no new rule can
bend it.
feeling guilty of having
shown disrespect to her reli-
gion.“I felt immensely proud
when I got this judgment
from the court because it
upholds my right to practice
my religion and yet at the
same time pursue my dream
in life. I hope this judgment
will give strength to candi-
dates like me in the future
who are in a dilemma as to
whether they should respect
their religion or blindly fol-
low such rules. Just because
someone is practicing her
religion doesn’t mean she
should be denied opportunities in life,’’
Fida Fathima told India Legal.
This is not the first time that the
issues of headgear and scarf have come
up before the Kerala High Court. In
2016, a similar case was heard by the
court ahead of the pre-medical entrance
examination conducted by the Central
Board for Secondary Education (CBSE).
The ruling went in favour of Amnah
Bint Basheer of Thrissur who was
allowed to sit for the examination wear-
ing a hijab. The Court had observed that
“the right of women to have the choice
of dress based on religious injunctions is
a fundamental right protected when
such prescription of dress is an essential
part of religion”.
Hence on May 24, the Kerala High
Court was only reiterating one of its ear-
lier judgments. However, the advocate
who appeared for Fathima, PE Sajal,
claimed it was a landmark verdict.
“What the court said in 2016 was for
that particular case and that is why the
issue has come up again. Even the
AIIMS admit card was not fully clear
about the rules. This judgment brings
clarity on the issue and will set a prece-
dent,’’ Sajal told India Legal.
The Court directed Fathima and oth-
ers who wear the head dress to reach the
venue of the examination at least one
hour in advance so that they could be
thoroughly frisked by a lady invigilator.
The Court has also added that such
checks should be carried out “respecting
religious sentiments”.
DIFFERING VERDICTS
It has never been smooth sailing for
those who insist on wearing a hijab. In
2015, the CBSE had come out with a set
of guidelines banning use of headgears
and scarf in the pre-medical entrance
examinations. This was done after ram-
pant malpractices were reported from
certain centres. Three girls had then
approached the Supreme Court with a
plea similar to the one filed by Fathima.
The apex court turned it down and
asked the students to appear in the
examination without wearing any head-
gear or scarf.
However, in 2016 following wide-
spread criticism, the CBSE relaxed the
rules allowing veils and certain kind of
burqas inside exams but again kept out
the head scarf. Here again, Justice A
Muhamed Mustaq of the Kerala High
Court directed the CBSE to admit a
Thrissur-based student and also asked
| INDIA LEGAL | June 19, 2017 27
“Thesearetimeswhenevery-
thingisbeingquestioned—from
whatweweartowhatweeat.
Whenahighlysensitiveissueis
involved,whyframesuchrules?”
—FathimaThahaliya,advocate
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
28. Agriculture/ GM Technology
28 June 19, 2017
N May 16, when Additional
Solicitor-General Tushar
Mehta sought to intervene
in a private dispute between
Monsanto and its biggest
erstwhile sub-licencee,
Hyderabad-based Nuziveedu Seeds, it
seemed like the agriculture ministry was
not done with “fixing” Monsanto.
Monsanto, an American company, is
the leader in genetically-modified crop
technology. In December 2015, its local
joint venture had terminated
Nuziveedu’s licence over refusal to pay
trait fee dues as per their contract.
Mehta wanted to make submissions on
behalf of the government on the
patentability of genetically-engineered
traits like insect resistance and herbi-
cide tolerance in plants, a week after
hearings on the matter had ended. But
the Delhi High Court did not take them
on record. It told him to move an appli-
cation to do so and said the principal
parties would be entitled to reply.
Incidentally, the views of the ASG
and M Prabhakara Rao, the founder and
managing director of Nuziveedu Seeds,
Sowing Seeds
of Doubt
TheAdditionalSolicitor-GeneralintervenedbetweenMonsanto
andNuziveeduSeeds,givingtheimpressionthattheministry
isplayingfavourites.Butthismaynotbethefullpicture
By Vivian Fernandes
THE DEBATE IS ON
The Bt Cotton plant (right), seeds (above) and
the toxic bollworm (facing page). As per the
PPVFR Act, if a proprietary GM trait is used
by any breeder, the trait developer can
make a claim for “benefit sharing”
O
29. | INDIA LEGAL | June 19, 2017 29
are quite similar. In 2015, Rao had
made a case for widely-used GM traits
to be considered as SEPs (Standard
Essential Patents) which should be
available on FRAND (fair, reasonable
and non-discriminatory) terms. He was
quoting from an article in the August
2014 edition of the Colorado Law
Review. Rao has also been pushing for
the traits to be patented under the
Protection of Plant Varieties and
Farmers’ Rights (PPVFR) Act.
STANDARD ESSENTIAL PATENTS
India has protected these genetically-
engineered traits under the Indian
Patent Act, as amended in 2002 and
2005. But the ASG believes that is not
good for the country’s food security. He
asserts that Monsanto and its licencees
want to cling on to protections under
that Act because they are addicted to
profiteering. He wants widely used pro-
prietary GM traits to be regarded as
SEPs like the technologies used in smart
phones, available freely on payment of a
fee fixed by the regulator. Monsanto’s
bollworm-resistance trait, for instance,
is found in almost all the Bt cottonseed
planted in the country.
Though the ASG agrees the traits by
themselves and the method of putting
them in plants can be patent-protected,
once inside, they become part of the
plant. Except for microorganisms, the
patent act does not allow animals and
plants, including seeds, and species to
be patented. Nor can biological process-
es be patented. The ASG was referring
to a list of “exclusions” in the act.
The ASG says GM traits once incor-
porated in plants, become part of it and
are indistinguishable from them. Rao,
like the ASG, believes they lose their dis-
tinct character once grafted into plant
DNA. And the plants pass on the genet-
ic traits to subsequent generations
through a biological process, which
again puts them in the excluded catego-
ry. Hence, the correct law, according to
the ASG, for protection of GM traits is
the PPVFR Act of 2001. If a proprietary
GM trait is used by any breeder (that is
say, a seed company like Nuziveedu) in
any of the seeds it registers with the
PPVFR Authority, the trait developer
can make a claim for “benefit sharing”
on the authority. The PPVFR Authority
will make payments from a National
Gene Fund, made up of contributions by
seed companies registered with it.
WITHOUT PERMISSION
The ASG believes the PPVFR Act allows
seed companies as breeders to use the
proprietary traits in their own varieties
and hybrids without permission. But
this is only for limited or one-time use.
Once the traits are introgressed (trans-
fer of genetic information from one
species to another), the seed company
will not need to use the genetic material
of the trait developer. In other words, he
seems to be making a case for legalised
grab of IPRs.
But Justice RK Gauba of the Delhi
High Court, against whose order the
two litigants had gone in appeal to the
division bench, was not impressed by
similar arguments advanced by
Nuziveedu Seeds. In his order of March
28, he upheld Monsanto’s patent on
insect-resistance traits in Bt cottonseed.
He said the patent act has a section on
“invention” by which it meant “a new
product or process involving an inven-
tive step and capable of industrial pro-
duction”. The provision was inserted in
2002 so that patentees were not
deprived of the reward for innovations
based on skill and ingenuity and “above
what occurs in nature”. The GM traits
involve “laboratory processes and are
not naturally occurring substances,”
Justice Gauba averred. They are man-
made and therefore, do not fall within
the ambit of exclusions in the patent act.
The gene which produces the boll-
worm-killing toxic protein in Bt cotton
plants is obtained from a soil bacterium.
But the natural isolate cannot be
TheASGbelievesthatoncethe
traitsareintrogressed,theseed
companywillnotneedtouse
thegeneticmaterialofthe
traitdeveloper.
30. Agriculture/ GM Technology
30 June 19, 2017
straightaway inserted into the cotton
genome. It has to be modified for the
plant to accept it. It also has compo-
nents attached so that the production of
the toxic protein is switched on and off
at particular points in the life cycle of
the cotton plant. This gene construct
when inserted can locate anywhere in
the plant genome. There are hundreds
or thousands of possibilities. The pro-
duction of the toxin, its potency, the
crop yield, its quality, and other proper-
ties of the plant can be affected by the
location of the insertions. Each of these
insertions is called an “event”. The event
chosen after screening, for patenting,
would be the one that gives the best set
of desired results.
Justice Gauba said the PPVFR Act is
for plant varieties. A plant variety, he
said, is the lowest rank grouping of
plants, distinguished from others by one
or more characteristics. Relying on the
1991 international convention on pro-
tection of plant varieties, he said, a sin-
gle plant, a trait (like disease resistance
or flower colour), a chemical or other
substance (like oil or DNA), or a plant
breeding technology (like tissue culture)
do not meet the definition of a variety.
Justice Gauba also termed benefit
sharing as a “pot of gold at the end of
the rainbow” because it depended on the
breeders (seed companies) registering
their varieties with the PPVFR
Authority, which is not mandatory. Most
seed companies, in fact, do not.
Agribiotech companies say benefit
sharing is for farmers and conservers of
biodiversity. It is not for developers of
GM traits which are manmade and cre-
ated in laboratories. They say the law
makes a distinction between the subject
matter of an invention and use of an
invention. If the subject matter is a
plant or variety, it cannot be patented
under IPA, but inventions whose use lies
in plants and varieties can be patented.
CONFLICT OF INTEREST?
Incidentally, Rao was made a member of
the PPVFR Authority in October 2016.
He has been saying that seed companies
should not have to obtain a non-objec-
tion certificate (NOC) from the trait
developer, as it gives the developer a
handle to impose onerous terms. Once
the Genetic Engineering Appraisal
Committee recommends commercial
release of a GM trait and the govern-
ment accepts the recommendation, seed
companies should be free to use the trait
on terms fixed by the government and
not the trait developer. Otherwise, it will
result in a monopoly, he said.
On a reference by the PPVFR
Authority, the ASG has opined that such
an NOC is indeed not necessary. It is
not prescribed by the Act. An NOC goes
against the grain of the PPVFR Act, he
says, which is to promote the develop-
ment of new varieties and hybrids. He
says a mere declaration is enough. This
should not be construed as an NOC. A
self-declaration that genetic material
used in transgenic varieties has been
lawfully obtained is enough.
Rao is said to enjoy considerable
clout in the agriculture ministry, though
this correspondent cannot vouch for it.
His company was a big beneficiary (but
not the only one) from the ministry’s 70
percent reduction in Bt cottonseed trait
fees (payable to a joint venture of
Monsanto). Bt cottonseed prices to
farmers were cut by just four percent.
Seed companies kept the savings.
Given the agriculture minister’s pub-
licly stated dislike of Monsanto’s “profi-
teering”, it would be reasonable to
assume that the ASG’s views have his
consent. But a senior agriculture min-
istry official said on a non-attributable
basis, that the minister has not given his
approval to the ASG’s legal opinion and
the ministry has not vetted it. “It is a
private matter between two companies
and the government has no locus standi
in the dispute.” Since the agriculture
ministry had issued a notification in
May last year waiving patents on GM
traits and then withdrawing the notifi-
cation hastily, one cannot say for sure
that the issue has been laid to rest.
The author is editor of
www.smartindianagricutlure.in
In2015,MPrabhakara
Rao,founderofNuziveedu
Seeds,hadmadeacase
forGMtraitstobeconsid-
eredasStandardEssential
Patents,whichshouldbe
availableonfairterms.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
AdditionalSolicitor-
GeneralTusharMehta
saysthattheGMtraits,
onceincorporatedin
plants,becomepartofit
andareindistinguishable
fromthem.
JusticeRKGaubaofthe
DelhiHighCourtwasnot
impressedwitharguments
ofNuziveeduSeeds.He
upheldMonsanto’spatent
oninsectresistancetraits
inBtcottonseed.
32. 32 June 19, 2017
Survival of the Fittest
ThesearecriticaltimesforthissectorinIndiaandtheonlywaytosailthroughistoinnovate
inbusinessmodelsandlearnnewskillssuchasartificialintelligenceandcloudcomputing
By Imran Qureshi in Bengaluru
STILL THE SUNRISE
INDUSTRY?
(Above) Employees at the
Infosys campus in Bengaluru;
(Facing page) The IT sector
boom had created many work
opportunities
HE IT industry in India is ag-
ain facing challenging times.
Whether it is due to new tech-
nologies or US visa policies,
there is a churning that is tak-
ing place. The focus is clearly to ride the
curve of new job-threatening technolo-
gies or face the sack.
The insecurity has led to the renewed
formation of a forum for IT employees
which says that at least 56,000 employ-
T
ees are expected to lose their jobs over
the next year. Though industry experts
dismiss this insecurity as part of normal
attrition and say it is standard practice
to get rid of two percent of employees
from the bottom of the pyramid every
year, the fact remains that annual norms
of appraisal have been made tougher.
Ashok Soota, executive chairman,
Happiest Minds Technologies and a for-
mer chairman, Confederation of Indian
Tech/ IT Industry/Job Losses
UNI
33. sition, which many in the industry see
as yet another phase that could help it
grow further.
Fundamentally, the older form of
doing business is changing. No more are
clients coming up with large projects
that last for a minimum of a couple of
years. These have been reduced from 18-
24 months to just three months now.
“New businesses are very project-orient-
ed. It is platform-based and you need
people to get it up and running. This
requires fewer people and work is short-
er in duration and cyclical,’’ said an HR
manager on condition of anonymity.
SENIOR POSITIONS
Unlike previous years, what has added
to the hue and cry this year is the purg-
ing of people in senior positions such as
vice-presidents or senior V-Ps. Mohan-
das Pai, former CFO and HR head of
Infosys, calls it a “clutter concentrated at
a certain level’’. His counterparts, how-
ever, call it “people stuck with legacy
technology, little learnability and less
adaptability’’. In short, it means that
these managers don’t bring value to the
work that the team is doing.
A business head of a major company
said: “There are a dime-a-dozen man-
agers in this industry and they are not
needed. Technology has also moved to a
point where the industry can afford not
to have them. The result is pink slips.
The industry needs to have every res-
ource that is billable. This is the reason
for the purge in the middle.’’
But surely these people can be re-
skilled? An HR consultant who previ-
ously worked for an IT company said:
“It is not easy. It depends entirely on the
mindset of the individual and the tech-
nology background. Today, the customer
is no longer saying I want this to be
done like earlier. He simply asks what
can you do to improve things?”
In the old days, said Soota, it was
easier for people who couldn’t get re-
skilled to move on because industry was
growing at a phenomenal pace. Today, it
simply cannot afford it. But it is not a
bad thing as such people have another
| INDIA LEGAL | June 19, 2017 33
started this, people trust us to take up
their issues.”
The reality is that automation is
slowly taking over this industry and, as
Soota says, will replace a “large number
of low-value jobs by higher-value but
smaller number of jobs”.
This will also decrease the number of
jobs in this sector. The nature of engage-
ment in this sector will undergo a tran-
Industry, said: “In an industry that is
still a huge net hirer, employing upwar-
ds of a million-and-a-half annually, you
are bound to get rid of some people. But
there have not been mass layoffs.’’
INSECURE LOT
But there is genuine fear over job losses
and it has led to the Forum for Infor-
mation Technology Employees trying to
get itself registered formally. It will be
the first independent association of its
kind in the country and is a bid to
organise the estimated 2.8 million emp-
loyees in India’s IT sector. The insecuri-
ty runs high and the forum claims that
at least 56,000 employees of top soft-
ware companies such as Infosys, Wipro
and Cognizant are expected to lose their
jobs over the next year. J Jayaprakash, a
member of the forum, said: “Since we
ourselves are IT employees who have
”Indiancompaniesmayevengo
touniversitiesintheUStohire
localtalent,groomthemandput
themonthejob.Wewillalsoget
toknowwhatskillsetsthelocal
peoplehave.”
–AformerHRdirectorofanITfirm
Rajeev Tyagi
34. chance to become entrepreneurs. “After
all, every other industry has an IT arm.
The demand for IT skills will remain
high because there is a huge amount of
requirement everywhere,’’ he said.
NEW CHALLENGES
The change is happening at a phenome-
nal pace. A business head of an IT com-
pany said: “When the internet came,
you could not find Java-trained individ-
uals. Now, we are talking about data sci-
ence and machine learning which makes
artificial intelligence adaptable. These
are the newer challenges. In fact, today,
architects are still in demand, hands-on
programmers are still in demand….”
This is an industry that is quick to
adapt and has done so every time it has
faced a crisis. Whether it is the Y2K one,
the Lehman Brothers crash or the US
slowdown, the Indian IT industry sim-
ply went on an overdrive and re-skilled
and adapted to meet the demands of the
market and grow. It is the same appro-
ach it is adapting this time too, despite
the new curbs on H1B visas proposed by
the US government.
In fact, even before Donald Trump
came to occupy the White House, for-
mer president Barack Obama’s rhetoric
had forced the Indian IT industry to
reduce its share of H1B visas in fiscal
2016. According to a report by National
Foundation for American Policy, a US-
based non-profit think-tank, seven top
Indian IT companies saw a drop of 37
percent in H1B visas in 2016 as com-
pared to 2015. These included TCS,
Wipro and Infosys. It said, the 9,356
new H1B petitions for the top seven
Indian-based companies approved in
fiscal 2016 represent only 0.006 percent
of the US labour force. So, it is hardly
surprising that companies have reduced
the number of applications for the cov-
eted visas this year.
Not just that, the sector is changing
its business model of onsite deployment.
From the days when almost 50 percent
of a company’s work was outside India,
it has been reduced to 30 percent. This
means that the number of Indians who
used to be sent abroad by IT companies
will come down and could be reduced to
as little as 10 percent.
Kris Laxmikanth, CEO, Headhun-
ters, said that with the new norms,
Indian companies will be hiring Ameri-
cans locally. One former HR director
said: “Indian companies may even go to
universities there to hire local talent,
groom them and put them on the job.
We will also know what skill sets the
local people have.” Soota added that by
sending higher skilled people abroad,
Indian companies will evolve and move
up the value chain.
Some insiders were surprised at the
proposal of Infosys’ founder, NR Nara-
yan Murthy that top managements of IT
companies take a cut in salary so that
the younger lot does not lose jobs. “It is
a cut-and-dried world today. If you are
paid handsomely, professionals perform.
Otherwise, they find better jobs and go
away,” said an HR consultant.
The only way then to survive this
dog-eat-dog world is to move towards
new opportunity areas like machine
learning, artificial intelligence, IoT
(Internet of Things) and robotic process
automation. Doing a niche job is the
security one needs.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Automationwillreplacealarge
numberoflow-valuejobs
byhigher-valuebutsmaller
numberofjobs.
—AshokSoota,executivechairman,
HappiestMindsTechnologies
Tech/ IT Industry/Job Losses
34 June 19, 2017
BRACING FOR LAYOFFS: Protests against
mass terminations in TCS at the Town Hall
in Bengaluru in January 2017
UNI