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India legal 31 october 2014

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Article about ClubHack, Indian Infosec Consortium & information security scenario of India on page 46

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India legal 31 october 2014

  1. 1. Vishal Bhardwaj’s craftsmanship I 50 LEGAL 24 78 NDIA www.indialegalonline.com October 31, 2014 `100 STORIES THAT COUNT Supreme Court refuses to stay a court ruling that the barbaric ritual of animal sacrifice has nothing to do with religious freedom RNI No. UPENG/2007/25763 Postal Regd. No. UP/GBD-197/2014-16 Continuing fallout from Modi’s US visit Bhopal victims’ legal agony www indiale P Chidambaram and wife Nalini—both top lawyers ‘‘Live And Let Live...’’ Double Trouble For Power Couple? The CBI appears to be turning the heat on ALSO CYBER SECURITY: License to invade 46 LAW GRADS: Confusing future 74 ISI MANEUVERS:Why Indo-Pak border is lighting up 38 GLOBAL How oil companies are rigging wages WRPD[LPL]HSURÀWV 64 3 20
  2. 2. INDERJIT BADHWAR LIVE AND LET LIVE received in the press. The decision—although specifi-cally addressing spectacular public slaughter cere-monies and ritual killings during Hindu religious cer-emonies in Himachal Pradesh—is actually a clarion call to the rest of India, where thousands and thou-sands of animals are subjected to brutish torture, cut-ting across religions and beliefs. What is truly courageous and luminous about this nearly 200-page judgment is its unflinching uphold-ing of human and humane values above every count-er- argument based on freedom of religion and wor-ship, the right to eat meat, religious personal laws, ritualistic non-vegetarianism, ancient traditions, scriptural edicts, verses from religious texts and inter-national cases. With the wisdom of A Daniel Come to Judgment, the judges take the arguments of their detractors head-on with scholarly research matching argument for argument, separating fact from fiction, myth and superstition from reality and common sense, and argue their case for moral core values that are essential spiritual beacons to guide a nation and a people into the radiance of knowledge. Readers of this column would do well to read this judgment (High Court of Himachal Pradesh, CWP No. 9257 of 2011 along with CWP No.4499/2012 and CWP No.5076/2012) in full, not only because of the light it sheds on religion and religious practices, but also because it is a transforma-tive experience. I will quote from it at length. For starters, the petitioners (People for Animals, led by rights activist Sonali Purewal) relied heavily on the rarely invoked Fundamental Duties of the Constitution – Article 51-A (h) — exhorting citizens of India to “develop the scientific temper, humanism, and the spirit of inquiry and reform,” against Article 25 — the Right to Freedom of Religion and the “right to freely profess, practice and propagate religion.” LETTER FROM THE EDITOR UDGES must often have to rush in where angels have feared to tread. Especially in dealing with matters of immense social, reli-gious, ethnic, cultural sensitivity. When legis-lators and administrators, fearing a popular J backlash, a violent repercussion or a political recoil back off from making tough decisions or enacting laws that will be politically unpopular, the courts have the obligation to step in to advance society’s move-ment towards achieving goals which the march of civ-ilization has come to accept as self-evident, universal truths—kindness, fair play, equal rights, the right to liberty and the pursuit of happiness. These ethical compulsions, our cultural evolution as a species—propelled by religious and spiritual doc-trines, revelations, philosophical treatises, reasoned discourse, the voices of peripatetic preachers—mark what is often referred to as the Ascent of Man. It is an obstacle course in which the impediments —religious sanction, superstition, bigotry, racial rage, violent conquest—are removed, sometimes by the ter-rible weapons of war, sometimes by non-violent, pas-sive resistance, preachers, movements, the ballot, leg-islation, the courts. And we move on. Last fortnight, India took a great step in moving on when Justices Rajiv Sharma and Sureshwar Thakur gaveled a new prohibition: The high court banned the sacrifice of animals in temples, saying they “cannot be permitted to be killed in a barbaric manner to appease Gods.” The judges decreed: “No person throughout the state shall sacrifice any animal in any place of public religious worship, including all land and buildings near such places of religious worship which are ordi-narily connected to religious purposes.” This massive judicial blow to openly sanctioned and wantonly celebrated spectacles of public cruelty deserves far more than the casual mention it has so far INDIA LEGAL October 31, 2014 3
  3. 3. But does this “freedom” grant anyone, no matter what his religion, the right to practice licen-tious, profligate public cruelty? Do animals enjoy human rights? Maybe not in the technical sense of fundamental rights as enshrined in the constitution. But the constitution is a creature of the highest polit-ical, ethical and moral values which our founding fathers thought fit to enshrine in the guiding docu-ment for the Indian Republic. This ethical value sys-tem was articulated by none other than Mahatma Gandhi, who said: “The moral progress and strength of a nation can be judged by the care and compassion it shows towards its animals.” The petitioners rubbished the wishy-washy stand of the state that animal sacrifice has been a continu-ous practice since time immemorial and is a deep-rooted cultural trait. There is no justification for its continuation, they said, “because it contravenes the very spirit of the constitution of India and the basic principles of a progressive and civilized society. The issue of vegetarians and non-vegetarians is irrelevant to the present context. The petitioner is not opposed to non-vegetarianism and meat-eating, but the ethos behind sacrificing animals before a deity is embedded in superstition and contravenes the constitutional spirit of a scientific temper.” They added: “The rituals attached to animal sacri-fice reflect only cruelty, superstition, fear and bar-barism and have nothing to do with either religion or culture. Practices like Sati, female feticide, child mar-riage, untouchability, etc., were continuing since gen-erations and were deeply ingrained in the social milieu, but have been almost eradicated with the education and reformation movements as well as judicial intervention.” Referring to an affidavit filed by an eyewitness, Bhajanand Sharma, the court observed that the ritual is a “cruel and barbaric practice and is far from the spirit of worship and reverence as the deponent has seen many a time goats, sheep and rams suffering in agony and crying out in pain during the performance of a sacrifice. The animals are sacrificed in the pres- LETTER FROM THE EDITOR 4 October 31, 2014 Getty Images
  4. 4. ence of other animals. It fills them with fear and dread and becomes a very depressing and painful sight to watch. Many villagers of the area avoid going to the temple premises. At such times, it is full of blood and corpses of sacrificed animals that becomes a very pathetic sight to encounter.” Other eyewitness descriptions from the case file: “Lying around in pain and suffering after receiving blows on their necks which usually does not kill them in first go. Sometimes, the animal tries to escape in a fatally wounded condition, which is very painful. Goats, sheep and rams are held by four people and then the head is attempted to be cut off by one other person, which is not always successful in the first attempt as there is no check on the sharpness of the weapon/equipment being used for the sacrifice, which may be blunt. At times, inexperienced people try and participate in the ritual killing and it is abom-inable to see that sometimes it may take up to 15 blows to kill the sacrificial animal that keeps strug-gling in a brutally injured and bleeding condition.” There was repeated testimony that animals are beaten up mercilessly and dragged up to mountain slopes to meet their death. The scenic beauty of the religious places is not maintained. According to the witnesses, it takes 25 minutes to kill a buffalo bull. At times, the buffalo runs amuck to save itself. The ani-mals are mercilessly beaten up and chilies are thrown into their eyes. The court noted the “insensitivity” of the state’s authorities to petitioners’ repeated requests to pre-vent animal sacrifice under Section 28 of the Prevention of Cruelty to Animals Act of 1960. It noted that “the larger beneficiaries of which are priests and the Mandir Committee, animal breeders and desig-nated butchers.” Nand Lal, a former practitioner of animal sacrifice, said in an affidavit that the sacrifice practiced is so horrific and cruel that most of the people do not even dare to watch, what to speak of accepting the flesh of the sacrificed animal as prasad. The court noted that “the rope is fastened behind the legs of the goat or sheep as well as to its horns, after which the animal’s body is cruelly stretched way beyond its normal limit and is tied up both at the front as well as at the back. After a person gives blows with a weapon to the ani-mal, (Nand Lal) was horrified to say that many times, because of an inexperienced person giving the blow or because of the bluntness of the weapon, it takes as many as 15-20 blows to kill the sheep or goats in which the animal cries away in pain and the whole The court order “ACCORDINGLY, we allow the writ petition CWP No. 5076/2012 and issue the following mandatory directions, prohibiting/banning animal/bird sacrifice in the temples and public places as under: “No person throughout the State of Himachal Pradesh shall sacrifice any animal or bird in any place of religious worship, adoration or precincts or any congregation or procession connected with religious worship, on any public street, way or place, whether a thoroughfare or not, to which the public are granted access to or over which they have a right to pass; No person shall officiate or offer to officiate at, or perform or offer to perform, or serve, assist or participate, or offer to serve, assist, or participate, in any sacrifice in any place of public religious worship or adoration or its precincts or in any congregation or procession, including all lands, buildings near such places which are ordinarily used for the purposes connected with religious or adoration, or in any congregation or procession connected with any religious worship in a public street... “No person shall knowingly allow any sacrifice to be performed at any place which is situated within any place of public religious worship, or adoration, or is in his possession or under his control; The State Government is directed to publish and circulate pamphlets henceforth to create awareness among the people, to exhibit boards, placards in and around places of worship banning the sacrifice of animals and birds. “The State Government is further directed to give due publicity about the prohibition and sacrifice in media, both audio and visual, electronic and in all the newspapers; and all the duty holders in the State of Himachal Pradesh are directed to punctually and faithfully comply with the judgment. “It is made clear that the Deputy Commissioners and Superintendents of Police of all the Districts shall personally be responsible to prevent, prohibit animal/bird sacrifices throughout the State of Himachal Pradesh. Live and let live.” INDIA LEGAL October 31, 2014 5
  5. 5. LETTER FROM THE EDITOR IN the case of AS Narayana Deekshitulu vs. State of AP and others, reported in (1996) 9 SCC 548, the judges held that the only integral or essential part of the religion is (constitutionally) protected. Non-integral or non-essential part of religion, being secular in character, can be regulated by legislation. The essential or integral part of religion to be ascertained from the doctrine of that religion itself according to its tenets, historical background and change in evolved process. While performance of religious service is an integral part of religion, priest or archaka performing such service is not so. The judges have further held that religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion that has been safeguarded by Articles 25 and 26, nor has the constitution provided that every religious activity cannot be interfered with. Every religion must believe in a conscience and ethical and moral precepts. “From that perspective, this Court is concerned with the concept of Hindu religion and dharma... Very often, one can discern and sense political and economic motives for maintaining status quo in relation to religious forms masquerading as religious faith and rituals bereft of substantial religious experience. As such, philosophers do not regard this as religion at all. They do not hesitate to say that this is politics or economics masquerading as religion. A very careful distinction, therefore, is required to be drawn between real and unreal religion at any stage in the development and preservation of religion as protected by the constitution. Within religion, there is an interpretation of reality and unreality, which is a completely different experience. It is the process in which the ideal is made rule. Thus, perfection of religious experience can take place only when free autonomy is afforded to an individual and worship of the infinite is made simpler, direct communion, the cornerstone of human system. Religion is personal to the individual. Greater the law bringing an individual closer to this freedom, the higher is its laudable and idealistic purpose. Therefore, in order that religion becomes mature internally with the human personality it is essential that mature self must be combined with conscious knowledge. Religious symbols can be contra-distinguished from the scientific symbols and both are as old as man himself. Through scientific symbols there can be repetition of dogmatism and conviction of ignorance. It thus follows that to one who is devoted to the pursuit of knowledge, the observance of rituals is of no use since the observance of rituals and the devotion of knowledge cannot co-exist. There is considerable incompatibility between knowledge and rituals inasmuch as their natures are entirely antithetical. It is only he who regards himself as the agent of action that can perform the rituals; but the nature of knowledge is altogether different and it dispels all such ideas. All the wrong ideas beginning with the identification of Self with the physical body etc., are eradicated by knowledge, while they are reinforced by action. Ignorance of Atman is at the root of action, but the knowledge of Atman destroys both. How is it possible for one to perform the prescribed rituals while engaged in the pursuit of knowledge inasmuch as they are incompatible! It is as much impossible as the co-existence of light and darkness. One cannot keep one’s eyes open and closed at the same time. It is equally impossible to combine knowledge and rituals. Can one who is looking westward look eastward? “Religion, therefore, be construed in the context of Articles 25 and 26 in its strict and etymological sense. Every religion must believe in a conscience and ethical and moral precepts…. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which is not considered a religious activity. Every mundane or human activity was not intended to be protected by the constitution under the guise of religion. The approach to construe the protection of religion or matters of religion or religious practices guaranteed by Articles 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if not impossible, to define the expression religion of matters or religion or religious belief or practice. The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community-life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order. Articles 25 and 26, therefore, strike a balance between the rigidity of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and guaranteed freedom of conscience to commune with his Cosmos, Creator and realize his spiritual self.” The creation and the created 6 October 31, 2014
  6. 6. premises is covered with blood. Many times, the per-son sacrificing the animal also drinks the blood, which is a horrific sight and sends shivers down one’s spine about the kind of barbarism that is being prac-ticed under the garb of religion. Animal sacrifice is not a form of worship but is in essence, a social evil that is based on superstition and violence against the helpless that goes against the spirit of Hinduism which preaches the spirit of Ahimsa”. The Himachal court opined that Articles 25 and 26 of the constitution of India protect religious beliefs, opinions and practices but not super-stitions. “A religion has to be seen as a whole and thereafter, it can be seen whether a particular practice is core/central to the religion. It can be a hybrid also. In the instant case, offerings in the temples can be made by offering flowers, fruits, coconut, etc. Accor-ding to us, there are compelling reasons and grounds to prohibit this practice. A democratic polity is requ-ired to be preferred to a system in which each one’s conscience is a law unto itself. The State has also the obligation under constitutional mandate to promote the health, safety and general welfare of the citizens and animals. “The stand of the State Government in the reply is that this practice is prevalent from time immemorial and the people have a deep-rooted faith and belief in animal sacrifice. The Court has directed the State Government to propose a regulation to arrest this evil. The State Government instead of filing an affidavit giving therein measures required to curb this practice has chosen to file the reply (citing the Vedas, and Upanishadas and Puranas)… Society has advanced. We are in a modern era. The rituals, which may be prevalent in the early period of civilization have lost their relevance and the old rituals are required to be substituted by new rituals which are based on reason-ing and scientific temper. Superstitions have no faith in the modern era of reasoning. “These practices have outlived and have no place in the 21st century. The animal sacrifice of any species, may be a goat or sheep or a buffalo, cannot be, in our considered view, treated as integral/central the-me and essential part of religion. It may be religion’s practice but definitely not an essential and integral part of religion. Hindu Religion, in no manner, would be affected if the animal sacrifice is taken out from it. “We have to progress... The essentials of any reli-gion are eternal. The non-essentials are relevant for some time. The animal/bird sacrifice cannot be treat-ed as eternal. We should experience religion. We have to stand up against the social evils, with which the Animal bill of rights The United Kingdom Farm Animal Welfare Council (FAWC) has expanded five freedoms for animals as under: Freedom from hunger and thirst—by ready access to fresh water and a diet designed to maintain full health and vigour. Freedom from discomfort—by the provision of an appropriate environment including shelter and a comfortable resting area. Freedom from pain, injury or disease—by prevention or through rapid diagnosis and treatment. Freedom to express normal behaviour—by the provision of sufficient space, proper facilities and company of the animal’s own kind. Freedom from fear and distress—by the assurance of conditions that avoid mental suffering. society at times is beset with. Social reforms are required to be made... The new Mantra is salvation of the people, by the people. Hindus have to fulfill the Vedantic ideas but by substituting old rituals by new rituals based on reasoning. “The animals have basic rights and we have to rec-ognize and protect them. The animals and birds bre-athe like us. They are also a creation of God. They have also a right to live in harmony with human beings and nature. No deity and Devta would ever ask for the blood. “All Devtas and deities are kind-hearted and bless the humanity to prosper and live in harmony with each other. The practice of animal/bird sacrifice is abhorrent and dastardly. The welfare of animals and birds is a part of moral development of humanity. Animals/birds also require suitable environment, diet and protection from pain, sufferings, injury and dis-ease. It is man’s special responsibility towards the ani-mals and birds being fellow creatures. We must respect the animals. They should be protected from the danger of unnecessary stress and strains.” editor@indialegalonline.com INDIA LEGAL October 31, 2014 7
  7. 7. OCTOBER 31, 2014 03 Live and let live A landmark judgment putting a stop to animal sacrifice in the name of religion delves deep into faith and rituals and questions the basis of brutality against all living beings. INDERJIT BADHWAR commends the brave judicial stand Chidambarams face CBI heat Former Home and Finance Minister Chidambaram is under the investigative agency’s scanner for his role in the 2G scam, as his wife faces a probe for her role in the Saradha scandal. VISHWAS KUMAR reports FOCUS Three decades of agonizing wait Justice eludes victims of the 1984 gas leak from the Union Carbide factory in Bhopal 30 years on. SHASHIKUMAR VELATH and NIKHIL EAPEN write how the corporate, in connivance with the Indian government, has dodged accountability. A sniff of trouble Children are increasingly getting hooked to cheap and available intoxicants. SHADAB AHMAD MOIZEE finds out the reasons behind the habit 34 HUMAN INTEREST 24 EDIT VOLUME. VII ISSUE. 28 Editor-in-Chief Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Senior Editor Vishwas Kumar Contributing Editor Girish Nikam Associate Editor Meha Mathur Deputy Editor Prabir Biswas Assistant Editor Somi Das Art Director Anthony Lawrence Senior Visualizer Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator/Photo Researcher Kh Manglembi Devi Production Pawan Kumar Verma Circulation RP Singh Chauhan CFO Anand Raj Singh VP (HR General Administration) Lokesh C Sharma Director (Marketing) Raju Sarin GM (Sales Marketing) Naveen Tandon-09717121002 DGM (Sales Marketing) Feroz Akhtar-09650052100 Marketing Associate Ggarima Rai For advertising subscription queries sales@indialegalonline.com Published by Raju Sarin on behalf of E N Communications Pvt Ltd and printed at CIRRUS GRAPHICS Pvt Ltd., B-61, Sector-67, Noida. (UP)- 201 301 (India) All rights reserved. Reproduction or translation in any language in whole or in part without permis-sion is prohibited. Requests for permission should be directed to E N Communications Pvt Ltd . Opinions of writers in the magazine are not necessarily endorsed by E N Communications Pvt Ltd . The Publisher assumes no responsibility for the return of unsolicited material or for material lost or damaged in transit. All correspondence should be addressed to E N Communications Pvt Ltd . OWNED BY E. N. COMMUNICATIONS PVT. LTD. NOIDA HEAD OFFICE: A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400-432 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegalonline.com MUMBAI OFFICE: Arshie Complex, B-3 B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI OFFICE: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW OFFICE: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA OFFICE: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD OFFICE: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. 8 October 31, 2014 20 LEAD
  8. 8. GLOBAL TRENDS An anathema 60 called IS British Muslims say NO to the hate propaganda of Islamic State and other radical groups and want the UK government to fight the extremists. SAJEDA MOMIN says this is a far cry from their opposition to the war on Iraq in 2003 50 NATIONAL SECURITY Manhattan mania BIKRAM VOHRA describes why Narendra Modi was lapped up by the NRIs and PIOs in the US, and why a similar visit to the Middle East would not be hyped up by the media Was the mission accomplished? ANITA KATYAL assesses whether the US visit of Modi achieved concrete results 54 Wooing the 56 eastern powers In attempting to improve relations with China and Japan, Modi will have to do the fine balancing act of not annoying either of the two. An analysis by COL R HARIHARAN TRENDS At crossroads 74 Insight into ISI psyche A 2008 paper written by the new ISI chief Lt Gen Rizwan Akhtar reveals how paranoid the Pakistan establishment is about growing proximity between India and the US. VISHWAS KUMAR analyzes this document in the light of Modi’s US visit and the current tension along the JK border DIPLOMACY A L S O Cover Design: ANTHONY LAWRENCE 38 REGUL ARS Letters…............................................................................................10 Ringside..........................… ..............................................................12 Quote-Unquote...............… ..............................................................14 Supreme Court..................................................................................16 Courts................................................................................................18 Briefs .................................................................................................77 Is That Legal?....................................................................................80 Wordly-wise .......................................................................................81 People ...............................................................................................82 Photograph of animal sacrifice: GETTY IMAGES INDIA LEGAL October 31, 2014 9 What are the career options available to legal graduates? JUI MUKHERJEE talks to some of them to learn about the path they have charted for themselves Boat clinics in Assam reach out to far-flung areas...............36 Why Kerala basks in hartal culture.................42 Need for ethical hackers to ensure IT security ....................46 How oil companies rig wages .........…........64 The suffering of immigrant labor.............67 Indian contingent’s performance in the Asian Games................70 An ode to Shakespeare in the backdrop of Kashmir trouble............78
  9. 9. Feeling the vacuum Refer to the book review Harvesting Hatred. Looking at the political situation in Maharashtra today, I am reminded of the immense contribution of Bal Thackeray in stitching a deal with the BJP and making Shiv Sena-BJP a potent force in the state. Now that they have split, and with the BJP going into the state elections with all guns blazing, the Sena’s future looks bleak. Rajesh Kumar, Ghaziabad Learn from Scotland I am glad that Scotland chose to stay with England (Scotched!, October 15, 2014). If the results would have been the other way round, the ramifications could have been far-reaching on world politics. Pakistan would have raked up the issue to seek referendum on Kashmir. Scotland has shown the world that separation is not the answer to identity issues. Partha Dey, Kolkata Please email your letters to: editor@indialegalonline.com Or write to us at: India Legal, ENC Network, A-9, Sector 68, Gautam Buddh Nagar, Noida (UP) - 201309 Distorting facts The story, Leave Cupid Alone (October 15, 2014 issue) made interesting reading. The BJP’s bluff was called in the assembly by-elections in Uttar Pradesh as far as propagating love jehad is concerned. It was a futile attempt to communalize polity in India. Has the Modi team run out of ideas? Yes, there could be stray instances of Muslims wooing Hindu women, marrying them and later forcing them to convert. But these are only abberations in a general climate of peace and amity. Gyaneshwar Dayal, Lucknow LETTERS www.facebook.com/indialegalmagazine www.twitter.com/indialegalmag Quintessentially legal I am happy to see that India Legal is picking up steam as a legal magazine. There is a lot of legal material in the magazine now. I enjoyed reading the October 15 issue. The subjects covered were broad, whether it is the Smriti Irani issue, the apex court guidelines on police killings, DNA profiling or stem cell therapy. Keep up the good work. Arun Swarup, Delhi A good attempt Indian Super League is a good concept to improve football standards in India (It’s Kick-off Time, October 15, 2014). Unlike cricket, there is no football culture in India. Only West Bengal, Goa, Punjab, and northeastern states are besotted with the game. The youth needs to be drawn into playing football and taking it up as a career option. It has taken years for cricket to blossom into a sport, with the promise of money, fame and adulation. As a football fan, I look forward to the tournament. Sudeep Dey, Mumbai 10 October 31, 2014 Errata On the cover page and the story Leave Cupid Alone (October 15, 2014 issue), the pictures of Naseeruddin Shah and Ratna Pathak Shah were credited to Reuters, whereas the pictures belong to Getty Images. The error is regretted. —Editor
  10. 10. Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph. — Haile Selassie VERDICT 12 October 31, 2014 Aruna
  11. 11. “He (Narendra Modi) answers questions brilliantly and is very focused on improving India. So, we are thrilled to be working with him. —Indira Nooyi, Pepsico India, CEO. The Times of India “Indian Muslims will live for India. They will die for India. They will not want anything bad for India.” —Narendra Modi to CNN’s Fareed Zakaria “I am happy England gave us the game of cricket, which they can’t play very well, and the English language, which I can’t speak very well.” — Kapil Dev, former Indian cricket captain, upon being honoured with the Lifetime Achievement Award at the House of Lords. The Indian Express When the Prime Minister was enjoying a swing with the Chinese President, thousands of their soldiers were occupying our land in Ladakh.” — Congress Vice-President Rahul Gandhi on Modi’s foreign policy. India Today.in “Manufacturing has to become the next big wave for us. This ‘Make in India’ campaign is a clarion call that will galvanize India’s economy to reach greater heights.” —Industrialist Kumar Mangalam Birla, at Vigyan Bhavan, New Delhi, where the campaign was launched. QUOTE-UNQUOTE “We do not speak against Muslim fundamentalism as strongly as we should. We have to attack Hindu and Muslim fundamentalism in the same manner.” —Congress General Secretary Digvijay Singh, on the Congress’ need to redefine its stand on secularism. Daily Bhaskar “Muslim boys good in studies are sent to public schools by their parents. But those who are weak, get admitted in madrasas.” —BJP MP Swami Sakshi Maharaj. Mail Today “I've left my one-year-old son at home to compete here and it took just one minute for the judges to spoil everything for me.” — Boxer Sarita Devi, on the alleged unfair decision of the judges in the semi-final Asian Games match. Mint 14 October 31, 2014
  12. 12. SUPREME COURT A rap on UGC’s knuckles Is it possible to fairly judge the level of infrastructure and teaching faculty of a deemed university, merely based on photographs and video footage, and doing away with physical verification altogether? The University Grants Commission (UGC) believes it can. However, it was pulled up by the Supreme Court for adopting such a sham procedure to seal the fate of as many as 41 institutions and derecognize them. The center had already received a report from the UGC panel in this regard. While junking the report, a two-judge bench orde-red UGC to conduct a fresh inspection of these uni-versities within 12 weeks, make the universities aware of their deficiencies, if any, give them consid-erable time to address the pitfalls, and then submit the final report to the center and the court. It decided to take up the matter again on January 8, 2015. The bench also demanded an explanation from the UGC as to why physical inspection was bypassed when there was an explicit mandatory rule for doing so in UGC Regulations 2010. It observed that things must have changed a lot after the UGC physically crosschecked the facilities in these universities, way back in November 2009. Strictures on publicity The Supreme Court’s intention to curb rampant advertising in the media by the government for polit-ical mileage at the cost of public money might take concrete shape soon. A committee set up by the apex court for guidelines on the issue submitted its report recently. The committee has suggested that such publicity mate-rial should not have names and pictures of political parties and people holding posts in them. It has also pointed out that only names and photographs of the president, prime minister, governor and chief ministers should be allowed. The Election Commission’s contention that strict regu-lations must be clamped on these advertisements six months before elections has received vociferous support from the panel, which has called for arming the poll body with enough powers for implementing the guidelines. The panel feels that in case of birth and death anniver-saries of public figures, there should be a single advertise-ment from the information and broadcasting ministry. It has advocated for a budgetary allocation from all ministries and PSUs for advertisements, and stressed that the likely expenditure must be vetted by the CAG. 16 October 31, 2014 Illustrations: Aruna
  13. 13. Memon to get another hearing The Yakub Abdul Razak Memon case Questioning procedures It seems this was an opportunity that the Supreme Court was waiting for. Criticized for lack of transparency in its collegium system, it was now the apex court’s turn to get back at the cen-ter on the issue of appointing central vigilance commissioners (CVCs). A three-judge bench asked the center why it was adopting opaque procedures to appoint a CVC through an “in-house” panel, thereby leaving immense scope for nepotism at the cost of talented people. It pointed out that if transpa-rency was an issue for all institutions and systems, why didn’t the same prin-ciple apply to the center. Was it not time that the government cleaned its own Augean Stables? The court was hearing a PIL that had raised doubts on the entire selection process followed by the government. The center, while assuring the court that will now be reviewed in an open court by the apex court. Memon was sentenced to death for his involvement in the 1993 Mumbai serial blasts, in which 257 people were killed. The court, while hearing a plea from Memon, stayed his execution, thereby “extending” its June 2, 2014, order. The three-judge bench also asked the Maharashtra government to respond to his request. A constitution bench of the Supreme Court had recently ruled that those sen-tenced to death could seek a review of the order from a three-judge bench in an open court, where they would be heard for 30 minutes. Memon is the third death-row convict to get a reprieve from the apex court after Surinder Koli, accused in the Nithari case and Sonu Sardar, a convict from Chhattisgarh. Jaya verdict, a cue from apex court THE Supreme Court’s strong stand against corruption became a reference point for the Karnataka High Court while rejecting the bail and quashing-of-sen-tence plea of former Tamil Nadu Chief Minister J Jayalalithaa in the dispropor-tionate assets case. The bench drew inspiration from recent apex court verdicts wherein it had observed that corruption was a vio-lation of human rights and adversely impacted the health of the polity and thwarted national progress. The bench also took into account the Supreme Court’s viewpoint that a person once held corrupt by a lower court, is liable to be labeled so by the higher judiciary when it hears an appeal against the judgment. Divorced for denying sex COUPLES normally part ways on grounds like cruelty, dowry harass-ment, mental incompatibility, inability to have kids, etc, but now, denying sex for a considerable period of time after marriage could also become the basis for divorce. While taking up a case in which a man wanted divorce because his wife was not interested in having sex ever since their marriage in 2005, a two-judge bench of the apex court observed that denial of sexual inter-course by any partner without a valid reason is nothing but “mental cruel-ty”. The bench upheld the Madras High Court verdict, in the same case, which ruled that the couple be grant-ed divorce. The high court had rejected the wife’s contention that she denied him sex as he wanted children after two years, saying there were many ways to avoid pregnancy. The wife had then appealed to the Supreme Court. INDIA LEGAL October 31, 2014 17 transparent and fair procedures were being followed at the shortlisting stage, stated that the CVC will only be selected after the court took a final decision on the matter. The court fixed the next hearing for October 14, and said that if it found the shortlisting process wanting, it would scrap the entire list.
  14. 14. COURTS Fast-track cells for tainted lawmakers The law ministry is preparing a blue-print to revamp the criminal justice system with special emphasis on quick disposal of cri-minal cases against MPs and MLAs. One of the main proposals will be the formation of a special cell in each of the 24 high courts to deal with criminal cases against lawmakers. A missive on this issue will soon be sent to chief ministers and chief justices of each state. Under the new guidelines, district judges may be vested with powers to arrest accused politicians in case they are found to be influencing the investigation or take action against the superintendent of police for failing to complete the probe within three months of the FIR being filed. 18 October 31, 2014 Ignoring ill husband cause for divorce Not looking after one’s husband when he is ill could be a valid ground for seeking divorce. The Bombay High Court has ruled in favor of a husband who is seeking divorce on the grounds that his wife failed to take care of him when he had chickenpox. “Criminalize marital rape” An additional sessions court judge in Delhi has made scathing comments against the lack of laws to deal with marital rape while hear-ing the bail plea of a man accused of forcing his wife into unnatural sex. Dismissing the husband’s bail plea, the court observed that keeping marital sexual vio-lence within the domain of domestic violence laws and keeping it out of the purview of rape laws reeks of “double standards and hypocrisy in law”. The court criticized the lopsided argument that the non-recognition of marital rape in India is “set upon the bedrock of equality”. The court said that the failure to recognize sexual violence within marriage as rape is the root cause of subjugation of women and it’s high time that the issue is addressed. The wife insisted on staying separately while her husband was recovering from the disease. A bench of Justices Abhay Oka and AS Chandurkar ruled that the agony of the suffering husband cannot be ignored and upheld the divorce sought by him. 1,000 obsolete laws to be discarded The coming Winter Session of parliament will see the repealing of 287 outdated laws. Union Law Minister Ravi Shankar Prasad has said that the government would introduce a bill in this regard. He has already sought urgent feedback from various depar tments concerned under whose jurisdictions these laws continue to exist. In addition, the gover nment is looking at repealing Appropriation Acts. Every parliament passes around 12 appropriation laws each year to be used whenever the gover nment decides to with-draw money from the Consolidated Fund of India. Af ter the withdrawal, that par ticular appropriation law is rendered obsolete. Their annulments would lead to the removal of 700 such acts from statute books, taking the total count of dis-carded laws to around 1,000. Illustrations: Amitava Sen
  15. 15. NO HOLDS BARRED I Film courtrooms: Reel vakils ZZZLQGLDOHJDORQOLQHFRP The courts step in to NDIA L EGAL September 30, 2014 C100 STORIES THAT COUNT control rampant misuse of the much-needed anti-dowry laws as weapons of vindictive persecution Kerala liquor law: Bottoms down Violating ethics? ZZZLQGLDOHJDORQOLQHFRP I ™ How judges grab land 51,1R83(1* 3RVWDO5HJG1R83*%' WHO ARE THE VICTIMS? CBI MESS: Director’s directories SHANTI BHUSHAN: Facing the heat SEX WORKERS: Green light ahead Lions and the law: Rip-roaring rumpus ALSO * )- () (% HOW WILL THE US TAME ITS OWN MONSTER? +- SECTION 498A ISLAMIC STATE '' PLUS Will JK see a Hindu CM? The politics of toilets z z 26 36 60 Baby-killer Sisters: In cold blood NDIA L E EGAL STORIES THAT COUNT www.indialegalonline.com NI Medical Crimes: justice? `100 get Can victims ever September 15, 2014 CRY ME A RIVER The putrefying Ganges is India’s national disgrace. Can Modi deliver on his campaign promise to revive the world’s holiest river? RNI No. UPENG/2007/25763 Postal Regd. No. UP/GBD-197/2014-16 zWho will be hit worst by Court’s Coalgate crackdown? zDoshipura: Shia-Sunni imbroglio zAt Last: weeding out antiquated bills zBribes-for-bank-loans scam surfaces Vanishing Birds: Can laws save them? ALSO 14 40 44 32 74 AND Should parents encourage kids to play with tablet APPS? NDIA LEGAL STORIES THAT COUNT ™ Diarygate plot thickens ™ Rules on encounter killings 2FWREHU C ™ Judge’s 24x7 tippling joint 51,1R83(1* 3RVWDO5HJG1R83*%' Leave Cupid Alone SMRITI IRANI: /RYH-HKDG%URXKDKD 7KHOHJDOGLPHQVLRQVRI FRQYHUVLRQDUHDUJXDEOD VXEMHFWIRUVWDWHLQWHUYHQWLRQ 7KHFUX[RIWKHGHEDWHLVZKHWKHU IDOOLQJLQORYHLVSDUWRID FRQVSLUDF Naseeruddin and Ratna Pathak Shah Shah Rukh and Gauri Khan Saif Ali and Kareena Kapoor Khan Muzaffar and Meera Ali Shahnawaz and Renu Hussain Don’t miss a single issue of this independent, scintillating new fortnightly magazine and get special discounts for yourself and your friends For advertising subscription queries sales@indialegalonline.com SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS HTb8f^d[S[XZTc^bdQbRaXQTc^8=380;460;PVPiX]TU^acWT^UUTaX]SXRPcTSQT[^f Tick one Term (Years) No. of Issues Cover Price (`) You pay (`) You save (`) % Saving 1 Year 24 Issues 2400/- 1200/- 1200/- 50% 2 Years 48 Issues 4800/- 1920/- 2880/- 60% =PT)0VT)BTg) 0SSaTbb) 2Xch)BcPcT)?X]) ?W^]TATb)UUXRT)TPX[) 4]R[^bTS332WT`dT=^)3PcTS)3aPf])U^a`) 2PaS=^)BXV]PcdaT) 5^a^dcbcPcX^]RWT`dT_[TPbTPSS`$ 332WT`dTc^QTSaPf]X]UPe^da^U4=2^d]XRPcX^]b?ec;cS C^QTbT]cc^)4=2^d]XRPcX^]b?ec;cS0(BTRc^a%'6PdcP1dSSW=PVPa=830D?! ( CTabR^]SXcX^]bP__[h?[TPbT_a^eXSTdb#fTTZbc^bcPach^dabdQbRaX_cX^]
  16. 16. LEAD/ chidambarams Double this power couple’s name has cropped up in two major scams. the fall-out could be serious By Vishwas Kumar Anil Shakya 20 October 31, 2014
  17. 17. IN THE DOCK (Facing page) Former FM Chidambaram and his wife, Nalini, will need to explain charges against them (Below) Dayanidhi Maran misused his authority as telecom minister and was reportedly helped by Chidambaram Trouble amount” for the Aircel-Maxis deal. The CBI also chargesheeted Dayanidhi’s brother, Kalanithi, along with Krishnan, Malaysian national Augustus Ralph Marshall and four firms. These firms were Sun Direct TV Pvt Ltd, Maxis Communication Berhad, South Asia Entertainment Holding Ltd and Astro All Asia Network PLC in the Aircel- Maxis case. The case has now gone for trial in the 2G Special Court of OP Saini. FORTUNES often change when regimes change. This holds true for former finance minister P Chidambaram and his wife, Nalini Chidambaram, both highly successful lawyers, who are under the CBI’s scanner for their alleged roles in two separate multi-crore scams. While Chidambaram’s links with brothers Dayanidhi and Kalanithi Maran, both accu-sed in the Aircel-Maxis deal, are under the scanner, in the case of Nalini, it is her associ-ation with Sudipta Sen, prime accused in the Saradha chit fund scam, that is the focus. VESTED INTERESTS? It is no coincidence that though these allega-tions against the couple came to light in the last two years of UPA-II’s regime, the CBI kept dragging its feet over them. But with a change in government, it has started a pre-liminary investigation into these matters. In 2012, the CBI hinted at Chidam-baram’s role when it was probing the 2G scam and ferreting out information on the Maran brothers and their Aircel-Maxis deal. This controversial deal took place when Dayanidhi and Chidambaram headed the telecom and finance ministries, respectively, during UPA-I’s tenure between 2005-2006. According to the CBI chargesheet, Dayanidhi misused his authority as telecom minister—from May 26, 2004, to May 13, 2007—to force businessman C Sivasankaran to sell off his telecom company, Aircel, to T Ananda Krishnan, a Malaysia-based busi-ness tycoon. Krishnan was a close business partner and family friend of the Marans. Soon after the deal, Krishnan’s companies invested around `600 crore in Marans’ com-panies. The CBI alleged it was a “bribe The then Finance Minister, P Chidambaram, who headed FIPB, cleared the `3,500-crore, Aircel-Maxis deal. But he had the power to clear deals only up to `600 crore. INDIA LEGAL October 31, 2014 21
  18. 18. Since the Aircel-Maxis deal involved sell-ing off stakes to foreign companies, it required the approval of the Foreign Investment Promotion Board (FIPB). This board was headed by finance minister Chidambaram, who cleared the deal. LIMITED MANDATE The CBI recently informed the 2G court that the FIPB’s approval was a “mistake”, and was investigating “why Chidambaram had cleared the nearly `3,500 crore deal in 2006 when he was competent to give approval for deals only up to `600 crore.” CBI prosecutor KK Goel recently told Judge Saini: “Your (judge) query was on FIPB approval. We are showing documents which show the power of the then finance minister. Power was vested in the then finance minister to give FIPB approval of up to `600 crore. “For investment of over `600 crore, the Cabinet Committee on Economic Affairs (CCEA) is the competent authority to give approval. This is under investigation and we have not concluded the probe on this aspect yet.” Incidentally, the CCEA, then, was head-ed by Prime Minister Dr Manmohan Singh. Chidambaram, however, denied allegations made by the CBI. Meanwhile, the then Janata Party chief, Subramanian Swamy (now a BJP member), wrote a letter to CBI director AP Singh on April 20, 2012, requesting that the role of Chidambaram and his son, Karti P Chidam-baram, in the Aircel-Maxis case be probed. He hinted at a “quid pro quo” between both parties. The letter urged Singh to look into details of money flow in various companies. These were the questions he had raised: * Have you noticed the irregularities and huge money trail during the period from 2005 in certain companies like Ausbridge Holdings and Investments Private Ltd. and AF Mentor Consulting Private Ltd., where Karti P Chidambaram has majority shares? * Have you noticed Ausbridge Holdings and Investments Pvt Ltd., in turn, has major-ity shares in Kaiser Surya Samudra Resorts Private Ltd and Advantage Strategic Consulting Private Ltd. and there have been huge money flows and purchase of properties by these companies? * Have you noticed that during the Aircel- Maxis deal period, Karti P Chidambaram-controlled Advantage Strategic Consulting Private Ltd had several money transactions with Aircel Televentures Ltd.controlled by C Sivasankaran? SHADY LINKS Coming to Nalini Chidambaram, the CBI questioned her for several hours on September 22 for her links with Saradha CMD Sudipta Sen. She was questioned about her alleged role in a television channel deal between him and journalist Manoranjana Sinh, estranged wife of Congress leader Matang Singh. Manoranjana and Nalini are close friends. Nalini’s role first come to light after Sen’s explosive letter to CBI director AP Singh, where he divulged the names of his scam beneficiaries, and it was leaked to the media. The letter dated April 2013, alleged that two people had damaged him hugely. He mentioned Manoranjana Sinh and Matang Sinh. He alleged: “Mrs Manoranjana Sinh LEAD/ chidambarams DOUBTFUL CREDENTIALS The CBI also chargesheeted Dayanidhi’s brother, Kalanithi Maran, in the Aircel-Maxis deal 22 October 31, 2014
  19. 19. contacted us for selling her Positive Groups and took me to Chennai to the chamber of Mrs Nalini Chidambaram as her advocate. Madam Chidambaram requested me to help her (Manoranjana) set up a channel in Guwahati and support her by extending `42 crore to her company. “Madam Chidambaram herself prepared the agreement, wherein she is the sole arbi-trator if at all any dispute arises…. She fixed her consultancy and during a period of one-and- a-half years, more than `1 (one) crore has been given to her.” Sen further alleged that whenever she vis-ited Calcutta with Manoranjana Sinh, her airfare and hotel bills at the Taj were paid by him. Manoranjana Sinh, he said, assured him that Nalini was the wife of P Chidambaram, the then home minister. “Without assessing my financial strength, she (Nalini) has also pressurized me for sup-porting her (Manoranjana) by investing `42 crore. So far, I remember that I have already paid `25 crore to Mrs Manoranjana Sinh in the name of GNN India Pvt Ltd and NK Gupta, her father, who is also whole-time director of GNN India Pvt Ltd. “For her travelling purposes and hotel accommodation in various places in India, not less than `3 crore have been spent,” he further alleged. However, Nalini in a statement to the media said: “The CBI did not question me. CBI officers wanted to know whether Ms Manoranjana Sinh had consulted me profes-sionally. I told them yes, I was consulted.” It waits to be seen how things will unfold for this power couple now. “Mrs Manoranjana Sinh…took me to Chennai to the chamber of Mrs Nalini Chidambaram… where she requested me to help her (Manoranjana) set up a channel in Guwahati and support her by extending `42 crore to her company.” Sudipta Sen, Saradha CMD DUBIOUS DUO (From left) Manoranjana Sinh, who has been named as one of the beneficiaries by Sudipta Sen IL INDIA LEGAL October 31, 2014 23
  20. 20. FOCUS/bhopal gas leak case Still living the death yes, 30 years on, that’s what the world’s worst industrial disaster has become for its tragic victims. does the new government have the stomach to carry on this fight? By Shashikumar Velath and Nikhil Eapen FOR 30 years, a US corpo-ration has been dodging its responsibility and accoun-tability to the people of India. Dow Chemicals, one of the biggest chemical corporations in the world, is liable for one of the most devastating indus-trial disasters in history. This year will mark the 30th anniversary of this chilling incident—when methyl isocy-nate (MIC) fumes from the Union Carbide India Limited (UCIL) swept through densely populated slums in Bhopal, killing close to 10,000 people in the first three days. Over the next 25 years, the accident was responsible for the deaths of close to 15,000 people. CORPORATE RESPONSIBILITY The Bhopal gas disaster and the experiences of survivors have raised fundamental ques-tions about corporate and government responsibility for industrial accidents that devastate the lives of people and the environ-ments they inhabit. On August 4, 2014, the chief judicial mag-istrate (CJM) of Bhopal issued the third crim-inal summons to the US-based Dow, which took over Union Carbide Corporation (UCC) in 2001, to explain the failure of its wholly-owned subsidiary Union Carbide Company (UCC) before the court and account for the criminal charges against it. The company has been called to appear on November 12, 2014. The summons claim that as a 100 percent owner, Dow has a responsibility to ensure that UCC faces these charges. Despite its dominant position over UCC, Dow failed to ensure that it appears before the criminal court to face charges or to address pending liabilities connected to Bhopal. No state officials have been held 24 October 31, 2014
  21. 21. In the immediate aftermath of the incident, company officials from UCC and UCIL downplayed the toxic nature of MIC, assuring reporters that the gas leak was only an irritant. UNENDING WAIT Women survivors of the gas leak demand justice for their sufferings; (facing page) the iconic photograph of a child who died in the tragedy, by Pablo Bartholomew INDIA LEGAL October 31, 2014 25
  22. 22. FOCUS/bhopal gas leak case accountable for their own failures related to the gas leak or site contamination. But ever since Dow Chemicals bought UCC, its stand has remained firm—I did not own UCC at the time, and therefore, I will not bear any responsibility for those affected by it. However, Dow’s claim that it did not own UCC in 1984 is not relevant because when it bought UCC, it integrated and consolidated its corporate identity, assets and liabilities. Meanwhile, UCC is, and was in 2001 (when the merger took place), a proclaimed absconder, ie, a company that did not pay damages proportionate to the harm caused by the gas leak, and a company that divested its interests in India without fulfilling its respon-sibility to make the Bhopal plant safe. UNETHICAL DOW In 2008, the Ministry of Law of India clarified that “if there was any liability for Bhopal, it would have to be borne by Dow”, and this was “irrespective of the manner in which UCC has merged or had been acquired by Dow Chemicals.” But Dow has been able to effectively side-step its responsibilities. When the CJM of Bhopal issued the first summons in 2005, the legal counsel for Dow’s subsidiary in India was able to sway the court to grant a stay order that lasted close to eight years before it was removed on the grounds that Dow and UCC were separate legal enti-ties. Ironically, while Dow was able to sway the court on the one hand, on the other, it directed court action against numerous sur-vivors and activists. Dow Chemicals International Private Limited (DCIPL)—Dow’s India office—has recently applied for leave to sue numerous Bhopal survivors and activists for `25 million with respect to an April 2013 protest. Since 2001, it has brought four legal actions against them, seeking restraining orders that prohibit them from protesting within 100-200 meters of the company premises. Dow has also tried to interfere with the judicial process to avoid being involved in court proceedings. In a 2005 communication, revealed an RTI request, Dow lobbied the MONUMENT TO FOLLY Containers in the Union Carbide plant, from which the gas leaked 26 October 31, 2014
  23. 23. Indian government to “implement a consis-tent, government-wide position that does not promote continued government of India liti-gation efforts against non-Indian companies over the Bhopal tragedy”. Consequently, the haunting legacy of Bhopal has been the fail-ure of a company, as also the failures of the Indian government and the judicial machin-ery, to grant justice. STANDARDS FOR REMEDY Principally, a victim’s access to remedy and justice are firmly founded in the Indian con-stitution and in international human rights law (see box International provisions). While UN rules are more formally estab-lished for countries, there is significant inter-national consensus that companies must also respect all human rights. The UN special rep-resentative of the secretary-general on busi-ness and human rights further emphasized the importance of both states and companies acting in a manner that is supportive of judi-cial integrity and independence, and of courts being able to act independently of any politi-cal or economic pressures. Indian courts have, on occasion, held com-panies to account for harm to health and environment. Courts have ordered polluting businesses to pay exemplary fines to serve as a deterrent to other enterprises. In 1987, in the MC Mehta v Union of India case involving the leak of oleum gas from a chemical plant, the Supreme Court held: “…[any] enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and residing in the surrounding areas, owes an absolute and non-derogable duty to the community to ensure that no harm results to anyone on account of [its activities].” INDIA’S FAILURE In 1968, UCIL, a company majority-owned by the US-based UCC, built a plant in Bhopal, Madhya Pradesh (MP), to manufacture pesti-cides such as Sevin, using poisonous MIC and other chemicals. UCC had 50.9 percent stake and the Indian government controlled 22 percent. The rest was owned by thousands of Indian investors. International provisions The UN International Covenant on Civil and Political Rights (ICCPR) provides for general rights of individuals for an effective remedy. Article 2(3) states that each state party to the present covenant has to: INDIA LEGAL October 31, 2014 27 Ensure that any person whose rights or freedoms are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity Ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the state, and to develop the possibilities of judicial remedy Ensure that the competent authorities shall enforce such remedies when granted WHEN TIME FROZE A statue epitomizing the grief of Bhopal gas victims
  24. 24. The central and state government were FOCUS/bhopal gas leak case aware that the Bhopal plant involved haz-ardous substances and processes. There is also undeniable evidence that UCC was able to influence administrators to violate indus-trial and environmental laws and standards during its operations in India. Under India’s Industrial Development and Regulation Act, 1951, the production of pesticides was reser-ved for small Indian companies, a provision that UCC was able to get a waiver for. In 1975, when MP ordered the relocation of the UCIL plant, the order was reportedly opposed by Union Carbide and a section of the state administration. Later that year, UCIL obtai-ned permission from India’s central govern-ment to produce and store MIC in the area. The flouting of laws is evident from this 1985 excerpt from a report of the Council for Scientific and Industrial Research. It said: “The Sevin unit could process MIC to the order of three to four tonnes per day. The inventory of MIC in the storage tank was of the order of 90 tonnes, equivalent to nearly 30 days production… It was entirely unnece-ssary to provide facilities for storage of such large amounts of MIC in tanks. The quanti-ties stored were quite disproportionate to the capacity of further conversion of MIC down-stream unit. This permitted the MIC to be stored for months together without apprecia-tion of potential hazards.” Ironically, UCIL did not meet internal company standards that it had set up for itself in countries such as the US. In May 1982, when an operational safety survey of the Bhopal plant was carried out by a team of UCC technicians from the US, numerous lapses in safety regulations were found. Others too raised concerns about the safety of the plant. Despite these warnings, a series of cost-cutting measures was implemented at POWER WITHOUT RESPONSIBILITY (Below) Industrialist Keshub Mahindra, who was chairman of UCIL; (facing page) Warren Anderson, chairman of UCC at the time of the tragedy Ever since Dow Chemicals bought UCC, its stand has remained firm—I did not own UCC at the time, and I will not bear any responsibility for those affected by it. 28 October 31, 2014
  25. 25. the plant from the beginning of 1983 and in the months leading to the disaster. During the factory design stage, UCIL had preferred to store MIC in small individual containers for reasons of both economy and safety. However, UCC disagreed, and bulk storage tanks for MIC were installed at the Bhopal plant, similar to those at the UCC plant in West Virginia, US. The crucial differ-ence was that the West Virginia plant worked round the clock, processing large quantities of MIC for production of pesticides or for sale as a chemical. In Bhopal, the processing capacity was so low that it resulted in large quantities of MIC being stored for weeks. UCC also failed to set up any comprehensive emergency plan or system in Bhopal to warn local com-munities about leaks, even though it had such a plan in place in the US. HELLISH NIGHT On the night of December 2, 1984, silently and insidiously, MIC fumes from a leaking tank at UCIL swept through the densely pop-ulated slums that surrounded the plant. Hundreds died in their sleep, and many more as they ran choking from their meager homes. Survivors said it felt like breathing fumes when chilies are burnt. People began cough-ing violently, and some vomited. The next morning, bodies were littered on the streets of Bhopal. By the time the sun set there on December 3, graves were fast filling and funeral pyres were burning bright. The Illustrated Weekly of India said: “Each symptom was dealt with separately, eye-drops for the eyes, antibiotics to prevent infections, antacids for the stomach. There was no attempt to purge the blood of the toxin, which continued to ravage the organ-ism from within.” Till date, more than a lakh people continue to suffer from health prob-lems. Efforts to provide rehabilitation have fallen far short of what is needed. In the immediate aftermath of the inci-dent, company officials from UCC and UCIL downplayed the toxic nature of MIC, assuring reporters that the gas leak was only an irritant and not fatal. Yet, UCC’s internal company documents mention the extremely toxic, volatile and reactive nature of MIC. Less than 24 hours after the gas leak, state authorities launched criminal proceedings. Nine individuals and three corporations were accused of several criminal offences under the IPC, including “culpable homicide not amounting to murder”. The individuals accused included: Warren Anderson, a US national and chairman of UCC since 1982; Keshub Mahindra, an Indian national and chairman of UCIL; and VP Gokhale, an Ind-ian national and managing director of UCIL. The corporations accused were UCC, UCIL and UCE. Anderson, Mahindra and Gokhale were arrested four days after the gas leak on December 7, 1984, but Anderson was released on bail the same day, following intervention by the US embassy in India, and left the coun-try two days later. In November 1988, the CJM issued a war-rant for the arrest of Anderson. However, negotiations between the government of India and the companies resulted in an out-of- court settlement. In February 1989, the Supreme Court (SC) ratified it. Even the extradition of Anderson was delayed and it was not until 2003 that India formally Blighted lives “… All of a sudden my husband started coughing and in the meantime, he heard screams coming from outside. As soon as he opened the door, all we could see was smoke entering our house. Then, everyone in my family started coughing and my kids started complaining of their eyes burning. Then we heard someone saying that we should all run because some gas pipe has exploded in the Union Carbide factory. We all started running and eventually, I got separated from my family. I just remember not being able to locate my family and after that, I lost consciousness.” —Puna Bhai, a survivor who lived across the Bhopal factory when the accident happened “The gas ruined our lives so badly that neither my husband or I could do any work….My first son developed TB at the age of 8 or 10, and the first daughter he had was born with a disability….The people who struggle are mainly the poor and women.” —Hazra Bee, a survivor “In the court, we were treated with no respect. Judges, officers and others treated us badly, even dacoits are treated with more respect in courts than us gas victims.” — Hameeda Bi, a survivor INDIA LEGAL October 31, 2014 29
  26. 26. IL FOCUS/bhopal gas leak case asked the US to extradite him. The US reject-ed this request in June 2004. According to news reports, on July 31, 2009, the CJM reis-sued an arrest warrant for Anderson and ordered India to press on with extradition. In August 2009, the CBI said that the matter was with the Ministry of External Affairs. TRANSFER OF SHARES In February 1994, the SC allowed the sale of shares held by UCC in UCIL. Advocates working on behalf of survivors filed applica-tions to halt the transfer, but these were adjourned on five occasions. By the time the applications were heard, on October 20, 1994, the shares had already been sold. This transfer would later give grounds for UCC’s legal counsel to argue that Indian courts had no jurisdiction over UCC because the compa-ny had disposed off all its inter-ests in India. On September 13, 1996, the SC downgraded the charges from “culpable homi-cide (not amounting to mur-der)” to “causing death by negli-gence” (the charges on the for-eign accused remained un-changed). Twenty-six years after the Bhopal disaster, the CJM finally convicted UCIL and seven accused individuals for causing death by negligence under Section 304A of the IPC. UCIL was ordered to pay a fine of `5,00,000, while all the indi-viduals were sentenced to a maximum prison sentence of two years and a fine of around `1,00,000. This light punish-ment sparked outrage in India and elsewhere. In August 2010, the CBI filed a curative petition (crimi-nal) seeking to recall the SC’s 1996 order downgrading the charges. On May 11, 2011, the SC dismissed the petition, saying the CBI approached the court after a long period of 14 years and that there were not suf-ficient grounds to recall their 1996 order. Bhopal is a human rights’ travesty today. The tragedy led to some positive legal reforms, though the Bhopal victims have been unable to benefit from them, as many are still waiting for adequate compensation. Efforts by survivors’ organizations to see justice done and gain adequate redress have so far been unsuccessful. For the new Indian government, taking effective steps to hold Dow accountable is a momentous opportunity to restore faith among the people of India. Tending to the wounds of Bhopal would mean sending a clear message to the world that in India, industry and business are stable because they respect international standards and guide-lines for environment, transparency and human rights. Shashikumar Velath is deputy CEO, Amnesty International India, while Nikhil Eapen is a researcher there A CELLULOID SOLUTION The Yes Men Fix The World was a biting satire on Dow’s stand in the Bhopal gas tragedy UCIL did not meet safety standards that it had set up for itself in countries such as the US. A series of cost-cutting measures was 30 October 31, 2014 implemented at the plant.
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  28. 28. FOCUS/bhopal gas tragedy / experience LOOK, how decrepit I look. Look at my son Shoab. He is mentally deranged, a veritable skeleton with swollen veins on his legs looking like curled snakes desperately clinging to two dried-up logs. Doctors have diagnosed this disease, but I don’t remember the name. Both of us are the only surviving members in the family and are maimed forever. I couldn’t educate my son and he has become wayward. Last week, I had to cough up `5,000 as bribe to drunken policemen, who barged into my home in the dead of night with my son. They said he was a crimi-nal. How would I know? My sickness barely permits me to go to my college, where I am a clerk. I am bed-ridden most of the time. My chronic breathing prob-lem aggravates so often that it is safe to be at home. At least half-a-dozen times every year, when breathing becomes acutely difficult, I “I am living on have to be admitted to gas relief hospitals. Doctors say my damaged lungs are bey-ond repair. I am living on borrowed time. Life is miserable and the future, bleak. Shoab is 33 and of marriageable age, but no offer has come for him. One offer came, but with a condition: transfer your home to your son’s name. How can I do that? What is the guar-antee that his future wife will not grab the house and chase me away? Remembering the past saddens me, as my happiness lasted barely three years into my marriage. I was a 23-year-old happy-go-lucky graduate in Kanpur when my parents married me off in 1979 to Ashraf Mohammad Khan alias Ashraf Lala, a fitter in the Union Carbide factory in Bhopal. For a young girl, who had never worn a burqa, my in-laws’ conservatism came as a shock. Although they were largely hostile to me, my husband was caring. That was a great solace to me. Soon, we had two children—Arshad and Shoab. Those were happy days. My husband, who was a union leader in the Union Carbide factory, would often tell me about the lethal gases his factory pro-duced. I had not imagined that within five years of marriage, these gases would kill my husband and elder son. In 1981, three years before the gas disas-ter, Ashraf was working in the factory when a valve malfunctioned and he was splashed with liquid phosgene. He was dead within 72 hours. The Union Carbide management concealed his postmortem report. My in-laws proved unwitting co-conspirators with the management. They would not let me come near my ailing husband’s bed in the hospital. However, I was paid `50,000 compensation. Soon after the death, my in-laws deserted me. I was devastated. Succor came from SH Khan, a co-worker of my husband. I subsist-ed with my two children, aged 18 months and seven months, by doing tuition and sewing. Those were difficult days, but life somehow moved on. Little did I know that more misery was in store for us, three years ahead. On December 2, 1984, I boarded the Gorakhpur-Bombay train with my children from Kanpur, where my parents lived. Ironically, I had delayed the journey due to the advice of my Hindu neigh-bours to start off on an auspicious day. When the train approached Bhopal station at 1.30 this is the story of SAJIDA BANO, a 58-year-old Bhopal gas victim. she lost her elder son to the leak and has suffered physically as well as financially. she recounts the horror of that night to Rakesh Dixit 32 October 31, 2014
  29. 29. pm, a ghostly silence pervaded the place. At the platform, I saw coolies running around desperately, fear writ large on their faces. Suddenly, we started coughing and chok-ing as some pungent gas assailed our nostrils. Not realizing what had happened, I dragged my sons to the waiting room. The scene there jahan-nam was chaotic and dreadful. It was like (hell). Women were wailing over dead bodies and I heard somebody shrieking that poisonous gas had leaked from the Union Carbide factory. Everybody was coughing violently, their eyes bloodshot with irritation and tears. Arshad and Shoab collapsed on the ground, coughing and vomiting. Confused and terrified, I ran to Khan’s place. Mercifully, they had not fled. When Khan asked about the children, I told them that they were in the waiting room. Khan despaired, saying I had left them to die. I panicked and ran back to the station. The road was littered with the dead—humans as borrowed time” well as cattle. When I reached the waiting room, I found Arshad, my four-and-a-half-year- old son, dead. Shoab had survived, I was told, because he had soiled his pants and, as a result, the gas he had inhaled had passed off. That was not the end of my miseries. The ordeal had only begun. With my three-year-old ailing son in my lap, I had nowhere to go. My in-laws had already disowned me. The disaster made them even more cruel. My husband’s elder brother got himself pho-tographed with Shoab, posing as his father, to claim the `10,000 ex-gratia offered by the state government. Somehow, I learnt about it and reclaimed the compensation. Khan once again stood by me. With his help, I managed to get accom-modation in a hostel, where I lived for 10 years. In 1987, I got a job in a woman poly-technic college on compassionate grounds. My economic condition has improved, but my health continues to deteriorate. After a while, I moved into a rented house in a predominantly Muslim locality in the walled city. All attempts to get my ailing son educated, failed. I tried to find solace in the fact that thousands of women were suffering the same trauma as me. Compensation arrived almost a decade after the disaster, when we were given a flat amount of `35,000 each. But medicines con-sumed the bulk of that money. Thanks to proactive help from bhai (Abdul Jabbar, the convener of the Bhopal Gas Peedit Mahila Udyog Sangthan), I have managed to get periodic treatments in hospi-tals. Otherwise, I would have died long ago like lakhs of other gas victims. The compensation of `8 lakh I got in lieu of my elder son’s death helped me build this small house. Let us see, how long I manage to live in it. A HELL ON EARTH Sajida Bano lost her husband and elder son to the gas leak and now has chronic breathing problems IL INDIA LEGAL October 31, 2014 33
  30. 30. HUMAN INTEREST/ drug abuse A SNIFF OF TROUBLE a recent study has shockingly found that 34 percent of children use cheap inhalants to get a high. little do they know the perils of such behavior By Shadab Ahmad Moizee 34 October 31, 2014 Anil Shakya
  31. 31. privileged children, scrap dealers provide them cheap inhalants, forcing them into the habit. Chetna did a survey in Delhi and found that the sale of whitener there was up to `67 lakh a day,” says Gupta. Stationary shop owners admit that sales of whiteners have indeed gone up. Madan, a shopkeeper in Malviya Nagar, says that sales had never peaked like they have in recent days. Now, many school children, including girls from good families, are using whiteners on a daily basis. “Let’s for a moment assume that they are using it to erase errors. But on a daily basis? Something is definitely wrong,” he emphasizes. IL REHABILITATE THEM Shaiju Varghese, a program coor-dinator with Childline India Foundation, an NGO that oper-ates a helpline called Childline, says drug abuse among children is rising day-by-day and there is no proper rehabilitation of them. Dr K Zaman, consultant psy-chiatrist at Delhi-based Alshifa Hospital, says that most children use intoxicants due to anti-social tendencies, peer pressure or fami-ly fights. Cheap intoxicants, he says, are a tool to escape reality. They provide temporary comfort, but can cause serious illnesses, such as heart disease and liver failure. He further adds: “It’s like a trend among school children and adoles-cents. Parents need to be watchful. If they smell chemical odors in their children’s breath or clothes or see stains on their faces and hands, they must question them. After using drugs, a child becomes irritable, lethargic, inattentive and a loner who needs to be coaxed to talk. Counseling and meditation can help, but it’s important to keep the child away from intoxi-cants and wrongdoers.” But on asking children why they used whiteners on such a scale, the answer this reporter got was far from the truth. “Masterji kaam hi aisa dete hain ki galti ho jati hai, isliye whitener se hum wo galti thik kar lete hain (Teachers give us such work that we end up making mistakes. We correct these by using a whitener).” It’s obvious they need urgent guidance. RAJAN (name changed) has bloodshot eyes. Still in his adolescence, Rajan craves for whiten-er or correction fluid. He has no errors to conceal except a habit he wishes nobody knows about. Rajan sniffs whitener fluid and says it helps him get rid of examina-tion pressure in school. Somehow, he manages to get `30 and buys the whitener. He drops some of it on a piece of cloth and sniffs it so strongly that it knocks him down. This high is his life. Rajan is among a growing number of chil-dren who use cheap and easily available intoxi-cants. A study conducted by National Drug Dependence Treatment Centre and the All India Institute of Medical Sciences for the National Commission for Protection of Child Rights reveals that 34.7 percent of children have used inhalants, be they whiteners, diluters, glue, petrol, nail polish or nail polish remover. Acrid diluter, for example, not only wipes out mistakes on paper, but weakens the memory of those inhaling it. TRIPURA LEADS The survey was conducted all over India among nearly 4,000 children in 135 sites across 27 states and two union territories. It found that Tripura had the highest proportion of inhalant users—a worrisome 68.3 percent. Many of these children have started early. Take Rajan. He started sniffing whitener and diluter at 13. He says: “My father was a rich businessman and used to drink alcohol. I also wanted to be rich like him so I started drinking alcohol. Since it was expensive and I had a hard time purchasing beer from a liquor shop, one of my friends told me about diluter and whitener. It was cheap and easily available at stationary shops near my house.” Before he knew it, he was hooked. Sanjay Gupta, executive director of Chetna, an NGO working for the empowerment of street and working children, says: “While the government has rules and a policy for the sale of liquor and tobacco products, it has none for substances like whiteners. One can buy these from any stationary or general store.” Often, it is peer influence that encourages school chil-dren to use inhalants. “But in the case of under- A survey among nearly 4,000 children across in 135 cities, 27 states and two union territories found that 34.7 percent of children used various types of inhalants. INDIA LEGAL October 31, 2014 35
  32. 32. A rowing success some 4.5 lakh impoverished people in the state are reaping the benefits of the compulsory rural stint for doctors By Rashme Sehgal SPOTLIHT/boat clinics /assam Arural posting is often shunned by India’s six lakh doctors. But Assam has decreed that MBBS doctors need to put in one year of rural service before they can apply for an MD degree. The official order has come as a godsend to rural communities there, ravaged by disease and hunger. And two young doctors in Assam have shown how their posting has energized these communities and improved their health. Dr Bhumidhar Barman and Dr Nabakanta Das work with impoverished farming commu-nities living in islands off the Brahmaputra, the world’s second largest river stretching from China to Bangladesh. During the mon-soon season, the river, along with its tributar-ies, becomes so swollen that entire villages are known to have been washed away in a day. ON THE MOVE In order to help those marooned in these islands, the Centre for North East Studies and Policy Research (C-NES) has helped set up 15 boat clinics, operating in 13 districts. These carry teams of doctors, pharmacists, lab tech-nicians and auxiliary nurses, along with vac-cines and medicines to the island villages. Both Barman and Das have, over the last six months, ridden over these turbulent waters daily in their attempt to alleviate the suffering of people. India Legal recently joined the team to gauge the selfless work done by them. “The first time I had to travel on one of these boat clinics, I was very uncomfortable. I could have never imagined a doctor’s job meant going by boat to treat patients living far away. Travelling to all these distant, inaccessi-ble villages is an arduous task,” Barman told this correspondent. One morning, the boat clinic travelled from Mukulmura Ghat, 60 kilometers from 36 October 31, 2014
  33. 33. To help the marooned in the islands off the Brahmaputra, the Centre for North East Studies and Policy Research has helped set up 15 boat clinics operating in 13 districts. IL Guwahati, to Balachar village in a remote island, 50 kilometers downstream. The village is mainly inhabited by an illiterate farming community, which grows rice and jute. Girls continue to be married off by the age of 13-14 and are plagued by malnutrition and anaemia. Fever and skin infections are the other com-mon health problems. Reaching this remote village was an adven-ture in itself. After a boat ride of 90 minutes, the clinic personnel walked in the hot sun through jute fields to reach a rivulet. Then, in a wobbly, leaky boat, they disembarked at Balachar. Another long walk led the team to the village center, where they set up a makeshift clinic under the shade of two tower-ing jamuna trees. And, then, began the actual job of healing the sick. EFFECTIVE TREATMENT There was already a serpentine queue of 200 people waiting patiently for the clinic to begin. Women in assorted cotton saris, most hag-gard, waited with a motley group of bedrag-gled children. As an auxiliary nurse and a medic immunized the younger children, the doctors checked the adults. “We deal with 180 to 250 patients every day, providing them with drugs for basic ail-ments. We also have a simple kit to test HIV, plasmodium falciparum (for malaria), blood groups, urine and hemoglobin levels,” infor-med Barman. Begum Tahira, a mother of five, is deli-ghted to see the doctor. “I have been suffering from an eye ailment for the last eight days. My husband works as a daily wager and recently got a job in distant Dibrugarh,” she said. Most of the patients clamored for “liquid” medicines rather than capsules. The reason is that the village quacks had been giving them syrups in colored bottles and they believe that medicines come out of these bottles. The doctors battle against all odds. Besides the difficulty of reaching remote locations, they also have to ensure that the vaccines are kept at the right temperature, given that there is no electricity in these villages. They have managed to recently solve this problem at Balachar by installing a refrigerator run on solar power. Their work has paid off. The boat clinics have already reached out to 4.5 lakh people, said Parvez Ahmed, head of C-NES in Nalbari district under which Balachar falls. Some 98 percent of children between 0-5 years in Nalbari have been immunized. The district with a population of eight lakh also has a high birth rate of 1,200 live births every year. However, Assam has among the highest maternal mortality figures, with 480 deaths per 1,00,000 live births. One of the main rea-sons is that around three million people live in socially and geographically isolated villages along the Brahmaputra. As for Barman and Das, working with these farming communities has been a trans-forming experience. “For one, we have under-stood how a small intervention like ours can make a difference of life and death in these vil-lage communities,” said Das. It is time for the return journey to Mukulmura Ghat. Another adventure awaited us. This time, weeds got caught in the pro-peller, bringing the boat to a halt twice. Removing them was simple. Nonetheless, there was a sigh of relief when everyone finally disembarked. COMMUNITY SERVICE (Facing page) A boat clinic on its way to one of the islands off the Brahmaputra (Above) Boat clinics have brought succor to rural communities in Assam hit by disease and hunger INDIA LEGAL October 31, 2014 37
  34. 34. NATIONAL SECURITY/indo-us-pak ties SPYMASTER THE as a new isi chief takes in over in pakistan, a 2008 paper written by him tells us that india’s growing ties with the united states has deepened insecurity in his country By Vishwas Kumar PRIME Minister Narendra Modi’s 38 October 31, 2014 highly publicized US visit must have unnerved the Pakistan military establishment, especially since it led to a joint agreement with US Presi-dent Barack Obama on terrorism. Both the leaders committed “themselves to joint and concerted efforts to disrupt all financial and tactical support to Al-Qaeda, Lashkar-e-Taiba (LeT), Jaish-e-Mohammad, the Haqqani network and the D-company”. This would have had a disquieting effect on the ISI (Inter Service Intelligence), which has, suppos-edly, been nurturing and financing these organiza-tions to fight proxy wars with India and Afgha-nistan. But with a new ISI chief, Lieutenant General Rizwan Akhtar, at the helm now, how will matters play out between India and Pakistan? Akhtar, a professional soldier, has been credited with leading the battle against terrorists on the Afghan-Pakistan border. He is known as a no-non-sense, hard taskmaster, who has cracked down on criminal and terror networks in Karachi. PREOCCUPIED WITH INDIA However, it is his views on Pakistan’s relationship with the US and India that need careful under-
  35. 35. 1960s, the Afghan jehad (in the 1980s) and the war on terrorism (post-2001). KASHMIR CONUNDRUM And like all Pakistani leaders, Kashmir is a major preoccupation with Akhtar. He echoed Pakistan military’s rhetoric by stating that the armed forces were unable to fully commit to counter-terrorism activities due to the pre-occupation with India over the “dis-puted” Kashmir issue. He further said that if the US was to “intervene” in the bilateral dis-pute to resolve the Kashmir issue, the Pak-istan army could start a full-fledged war on “home-grown” terror groups, which now not only attack India and Afghanistan, but also the US and Western nations.” “The resolution of the Kashmir issue and LIFE ON THE EDGE (Facing page) India will have to closely monitor ISI chief Lt Gen Rizwan Akhtar’s moves, given his radical views on Pakistan’s relationships with India and the US (Above) Pakistan’s recent shelling has not even spared civilians in the Jammu sector. Kashmir, as expected, is a major preoccupation with Akhtar securing a lasting peace with India is vital to the stability of Pakistan and the region. This could free up significant Pakistani military forces for potential employment in other troubled areas for operations against the “The resolution of the Kashmir issue…is vital to the stability of Pakistan and the region. This could free up significant Pakistani military forces for…operations against the Taliban and Al-Qaeda.” —Lieutenant General Rizwan Akhtar, the new ISI chief INDIA LEGAL October 31, 2014 39 standing. This can be gleaned from a 2008 paper Akhtar wrote when he was a brigadier attending a one-year course at the US Army War College. The 6,313-word paper, titled “US-Pakistan trust deficit and the war on ter-ror”, says that the growing US ties with India are the main cause of increasing trust deficit between Pakistan and the US. “A key factor in the current and future US-Pakistan relations is US interactions with India and how they are couched within regional and Indian-Pak-istani contexts,” he wrote. In the context of the Indo-US nuclear deal, which was signed in 2008-09, he wrote: “Pakistan, however, is concerned about the recent US-Indian nuclear agreement, and also aspires for one itself, and is willing to accept all the associated safeguards and inspections that follow. How this will play out within the region and between the two nuclear-armed antagonists is still uncertain. What is certain is that US-Indian activity has a profound effect on the Pakistani populace and Pakistan’s perceived security, which can disrupt or derail an otherwise positive US-Pakistani relationship.” It is a common knowledge that Pakistan stoutly opposed the deal and later, demanded that it too should get one like it. The US gov-ernment, however, rejected this and pointed out that India had an excellent track-record when it came to nuclear safety standards and proliferation, whereas Pakistan’s chief atomic head, Abdul Qadeer Khan, had already con-fessed to selling nuclear secrets to several countries and even to terror organizations like the LeT. Akhtar further advocated that US policy “towards Pakistan has to be integrated with broader regional policies, as the relationship between regional actors and the global role of South Asia undergoes rapid changes.” He feels the US is obliged to take care of Pakistan’s interests because it has been an old ally and several of the challenges like “radi-calization” and “terrorism” faced by it are due to this tie-up. He wrote that Pakistan-US ties were sha-ped during three distinct phases, starting with the Cold War era of the 1950s and UNI
  36. 36. Taliban and Al-Qaeda,” he wrote. Akhtar also said that a stable and secure Pakistan was more likely to focus on its economic well-being and eventually, serve as an example of a successful and democratic Islamic country. Akhtar also advocated peace during the Kargil conflict. “The on-going dispute bet-ween India and Pakistan has continued to be a source of both regional instability and international concern. On a positive note, the US strongly encourages an ongoing Pakistan- India peace initiative. Additionally, several recent confidence-building measures have eased tensions to a level that makes another war unlikely. The US’s proactive mediation has helped diffuse the Kargil incident.” ACCUSATIONS GALORE Akhtar was also critical of the Afghan gov-ernment and NATO allies of the US, who accused the Pakistan army of allegedly help-ing terrorist groups in the Afghan-Pakistan border. This is significant, as he will now be dealing with such issues and the new Afghan government there. According to him, such an accusation is not healthy for US-Pakistan ties and causes trust deficit. “The constant bar-rage of accusations hurled against Pakistan by mainly Afghan leaders and certain coali-tion force participants that criticize Pakistani efforts to eliminate militant safe-havens and cross-border operations do little to improve relationships….Both the US and Pakistan need to better communicate and coordinate their respective strategies and avoid passing judgment on the efficacy of each. There also needs to be an increased recognition (and assigned culpability) for the many external influences undermining Pakistan operations within the Waziristan Agency, including those emanating from Afghanistan,” he opined. “From the Pakistani perspective, building credibility and legitimacy within the closed and insulated tribal regions requires patience and time.” Incidentally, Akhtar belongs to the Frontier Force Regiment and was commis-sioned in September 1982. He was general officer commanding in South Waziristan from 2010 to 2012. His postings in Karachi and South Waziristan provide him a good background in counter-terrorism. Therefore, his differences with the US on conducting operations against terror groups among fiercely-independent tribal populations are significant. He says the US believes in “quick solutions” to the problem, while the Pakistan military thinks in terms of long-term strategy without disturbing the local social fabric. “The Pakistani government understands the importance of building close ties with tribal chiefs for the long-term strategic suc-cess against the Al-Qaeda and Taliban radi-cals. Conversely, US interests focus more on short-term kinetic operations against the immediate threat….While some of these operations achieve immediate successes, they often times alienate the tribals and result in increased tribal support for the Taliban and Al-Qaeda,” he claimed, without explaining in the first place why these terror organizations were provided shelter. He further said that US’s attempt to achieve a quick victory and withdraw rem-ains a contentious issue that can disrupt long-term US-Pakistan relationship. With Indo-US ties growing, Akhtar faces difficult challenges, even as US-Pakistan ties slip fur-ther. And with increasing border skirmishes with India, it is a moot question whether Pakistan is acting out on the insecurities voiced by the current ISI chief. NATIONAL SECURITY/ indo-us-pak ties IL CHALLENGE AT HAND It remains to be seen how Akhtar deals with issues on the Afghan-Pak border UNI 40 October 31, 2014
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