India Legal Stories That Count

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
May 20, 2019
A tribute to Prof NR Madhava Menon known worldwide as the doyen of modern legal education.
He was not only a great teacher but also a creator of jurisprudence. Prof Upendra Baxi’s
homage to him along with excerpts from articles he penned specially for this magazine
ThePassingofaGiant
Supreme Court:
Credibility crisis
Banks and Ethics:
No legal oversight
1935-2019

VEN as the 2019 general election hurtles
towards a conclusion and public attention
is rivetted to the nation’s political arena,
controversies surrounding the judiciary
continue to compete for the headlines as
they have been for the past several weeks.
As India Legal has previously reported, the focus
is once again on the Supreme Court with Chief Jus-
tice of India (CJI) Ranjan Gogoi weathering a storm
created by allegations of sexual harassment followed
by official intimidation made in a sworn affidavit by
a woman once employed in the CJI’s office.
The news is ubiquitous and hardly needs repeti-
tion in this space. But in an election year when
the TV screens have little else to show except for
wall-to-wall political rallies across the country, one
assembly that stood out and received special notice
last week was a mass demonstration outside the
Supreme Court demanding fair play for Justice
Gogoi’s accuser.
The question asked was whether she had
received her share of due process by the highest
court of the land which must be above reproach or,
as that other axiom goes, “cleaner than a hound’s
tooth”. It is a legitimate standard to be applied to all
those who have the responsibility of separating fact
from fiction for the Indian public.
India Legal has taken the consistent view that
notwithstanding the individual foibles, idiosyn-
crasies, conflicts of interest, human frailties of the
judges who sit on its benches, the Supreme Court is
one of the few institutions created by the Founding
Fathers which has withstood the vagaries of time,
the vicissitudes of politics and any number of
attempts to convert it into a handmaiden of the
political establishment.
It has survived as a solid pillar of support for the
doctrine of the separation of powers as well as a
check and balance against those who would try and
hijack the system of constitutional governance to
meet perfidious political or economic ends. Tamper
with it, therefore, at your peril.
The most recent brouhaha is over whether the
system followed by the Court in giving a clean chit
to the CJI by a panel of three Supreme Court
judges—two of them women—before which the
accuser refused to appear to tell her story because
she, for various reasons, believed the system was
loaded against her, was the proper way to conduct
the inquiry. Or, whether Gogoi was following the
precepts of natural justice in summoning an emer-
gency suo motu hearing in the presence of the attor-
ney general in which he proclaimed his innocence
and condemned the complaint as a conspiracy.
Does the system, it is widely being asked, sup-
port a culture of impunity for Supreme Court
judges? Are they immune from the Rule of Law and
its overarching majesty? How can they be held
accountable? And herein lies the rub. The system
has deliberately skewed the burden of proof in
favour of judges because they cannot be made sit-
ting ducks for any party with a vested interest to
take potshots at.
One argument being made in this particular case
is that an independent panel could have been estab-
lished to examine the charges against Justice Gogoi.
But what then? Who would appoint it? Would such
a panel be empowered to remove a sitting Supreme
Court judge? Only Parliament with a requisite
majority can do that. Another suggestion is that the
complainant should have filed an FIR and sought
redress starting with the lower courts. In the real
world, though, how likely is it that a local police sta-
tion would dare to accept such an FIR or even a
magistrate take cognisance?
Also, from the debates still raging on this sub-
ject, it is unclear whether the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 (“POSH Act”) applies to judges
and if so, to what extent. When a sitting Madhya
Pradesh High Court judge was accused of sexual
harassment in 2014, the Supreme Court ruled that
“in-house procedures” (akin to the Vishakha system)
could be used in the inquiry process (Addl. District
& Sessions Judge ‘X’ v. High Court of M.P (2015) 4
SCC 91).
In pursuance of this, the CJI can form a three-
member panel of Supreme Court judges to exam-
DISCIPLINING JUDGES
Inderjit Badhwar
Letter from the Editor
E
Doesthesystem
supportacultureof
impunityfor
SupremeCourt
judges?Arethey
immunefromthe
RuleofLawand
itsoverarching
majesty?Howcan
theybeheld
accountable?And
hereinliestherub.
Thesystemhas
deliberatelyskewed
theburdenofproof
infavourofjudges
becausetheycan’t
bemadesitting
ducksforanyparty
withavested
interesttotake
potshotsat.
| INDIA LEGAL | May 20, 2019 3

ine allegations of misconduct received against a sitting
judge. The CJI then oversees and enforces the final
outcome. But what if the complaint is against the CJI?
The law is not clear on this. And nor has there ever been
any such complaint until the current one against
Justice Gogoi.
The question most observers are struggling to answer is
that if an in-house inquiry in which a CJI can choose the
judges to judge a complaint against him is an incestuous
exercise, then would not a system in which outsiders are
automatically appointed by some other branch of govern-
ment for the same purpose encourage the filing of spurious
complaints motivated by political opponents of a particu-
lar judge or his judgments? This would be a fatal blow to
the independence of the Supreme Court and the judiciary
as an institution. It is no solution.
L
et’s travel to America which not only has one of the
most mature and tested legal systems in the world,
but is also a country whose lawyer-founding fathers
influenced the creation of the Indian Constitution. The
Americans have come a long way in trying to deal with
judicial misconduct in federal and circuit courts. But the
US Supreme Court, however, is not subject to this discip-
linary mechanism. Short of impeachment by the legisla-
ture with requisite majorities in both houses, there is little
that can be done to remove or discipline a Supreme
Court judge.
There is, however, a much stricter administrative stan-
dard for the federal courts (akin to Indian high courts) and
circuit courts (an appeals court system layered between
the Supreme and high courts). The country is divided into
12 regional circuits. In each is a court of appeals, one or
more district courts, associated bankruptcy courts and a
circuit judicial council.
Judicial councils comprise an equal number of district
judges and court of appeals judges (“circuit judges”) and
the chief judge of the court of
appeals as chair. The councils are
generally responsible for, in the
words of the statute that created
them, “the effective and expeditious
administration of justice within
its circuit”, although as a practical
matter, councils generally tread
lightly in overseeing the courts in
their circuits.
Under a 1980 law, the Judicial
Conduct and Disability Act, any
aggrieved person can file “a written
complaint” alleging judicial misconduct or performance-
degrading disability. The Act defines misconduct as “con-
duct prejudicial to the effective and expeditious adminis-
tration of the business of the courts”. This includes
sexual harassment.
The complaint goes to the clerk of the court of appeals
in the regional federal judicial circuit that includes the
court of the judge who is the object of the complaint. The
Act tells the clerk, upon receipt of a complaint, to transmit
it to the circuit chief judge. If the chief judge, for one rea-
son or another, has recused himself or herself from a par-
ticular complaint or from all complaints, the complaint
goes to the next most senior judge in active service.
Under the Act, a chief circuit judge, whether on a nor-
mal complaint or a transferred complaint, has several
options, including conducting a “limited inquiry” to assess
whether the complaint alleges facts reasonably in dispute.
If so, the chief judge must appoint what the Act calls a
“special committee” comprising the chief judge and other
district and circuit judges to investigate them. That hap-
pens very rarely, according to Russell Wheeler, author of a
Brookings Institution commentary on the subject. “Much
more often, chief judges dismiss complaints on a variety of
grounds, including that the complaint challenges the cor-
rectness of a judge’s ruling or is frivolous or lacks any fac-
tual foundation.”
If there is substance to the complaint, disciplinary
action may vary from reprimanding the judge, either by
private communication or by public announcement;
ordering that no new cases be assigned to the judge for a
limited, fixed period; in the case of a magistrate judge,
ordering the chief judge of the district court to take action
specified by the judicial council, including the initiation of
removal proceedings; in the case of a bankruptcy judge,
removing the judge from office; in the case of a circuit or
district judge, requesting the judge to retire voluntarily
with the provision (if necessary) that ordinary length-of-
service requirements be waived; in the case of a circuit or
district judge who is eligible to retire but does not do so,
certifying the disability of the judge so that an additional
Letter from the Editor
4 May 20, 2019
UNANIMOUS DECISION
(L-R) The SC In-house inquiry panel of Justices SA Bobde, Indu Malhotra
and Indira Banerjee has given a clean chit to CJI Ranjan Gogoi

judge may be appointed; in the case of a circuit chief judge
or district chief judge, finding the judge temporarily un-
able to perform chief-judge duties, with the result that
those duties devolve to the next eligible judge; and recom-
mending corrective action.
D
isciplining judges has become a matter of public
debate and controversy in America ever since the
Senate confirmation of Brett Kavanaugh to the US
Supreme Court following explosive hearings last Septem-
ber on his fitness for the post following charges of sexual
assault levelled against him by Dr Christine Ford.
After he was confirmed (and now is a sitting Justice),
some 15 serious conduct-related allegations against him
stemming from his behaviour while he was a circuit
judge prior to his confirmation to the Supreme Court
were dropped by the investigating judges before
whom they were pending on the grounds that “action on
the complaint is no longer necessary because of interven-
ing events”.
The intervening event in Judge Kavanaugh’s case is his
appointment as a Supreme Court justice. That is because
the Act covers complaints only about circuit judges, dis-
trict judges, bankruptcy judges, magistrate judges, and
judges of some special courts.
The theory behind excluding Supreme Court justices is
that “it would be at least unseemly for lower court judges
to discipline Supreme Court justices”, says Wheeler.
Judges leaving the bench to avoid discipline is a sore
point. Chief Justice John Roberts appointed a “Federal
Judiciary Workplace Conduct Working Group” in the wake
of sexual harassment allegations against several judges.
The Group reported “concern about seeming lack of pun-
ishment for a judge who, under allegations of serious mis-
conduct, retires or resigns and thereby terminates the dis-
ciplinary proceeding”.
In the case of a US Supreme Court justice, the only
available disciplinary remedy is impeachment by the
House and conviction and removal by the Senate. But even
if the majority of the House agrees on impeachment, it will
likely fail unless two-thirds of the Senate votes to convict
the accused Justice.
In the cases of all other judges covered under the 1980
Judicial Conduct and Disability Act, the special committee
appointed to investigate a complaint may conduct inter-
views and hold hearings, but it is not required to do so.
According to official accounts and FAQs posted by US
authorities, if there is relevant evidence that has not been
presented to the special committee, the complainant can
briefly explain in writing the nature of that evidence. If the
special committee determines that additional evidence
would assist the committee, a committee representative
will interview the complainant, or an attorney may submit
a written argument to the special committee. The special
committee may permit the complainant or his attorney to
argue before it, but it is not required to do so.
Upon concluding its investigation, the special commit-
tee will submit a report of its findings and recommenda-
tions to the judicial council. The complainant will receive
notice that the special committee has filed its report with
the judicial council. The judicial council may, in its discre-
tion, provide the complainant a copy of the report.
After the judicial council considers a special commit-
tee’s report, it will generally issue an order on the com-
plaint and provide the complainant with a copy of it. The
order may dismiss the complaint, or conclude it because
appropriate corrective action has been taken or interven-
ing events have made the proceeding unnecessary.
If the order does not dismiss or conclude the com-
plaint, it may pass sanctions already mentioned against
the judge. This American model is at least a worthy tem-
plate that sets the stage for greater judicial accountability.
The Justice Gogoi matter, even after its dismissal, has
flared into a national controversy which will not die down
until another, parallel quasi-judicial inquiry into allega-
tions of a conspiracy against the CJI is concluded.
Nonetheless, it is a time for reflection. Upholding the
independence, integrity and honour of the Supreme Court
as an institution is a priority. The judiciary, civil society,
legal scholars, retired judges, think tanks and the political
class must come together on a common platform to devise
a systematic approach in which ad-hocism, favouritism
and impunity are kept at arm’s length, through the lawful
creation of an arrangement and structure which is fair,
impartial, just, constitutional, and safeguards the separa-
tion of powers.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
QUESTIONABLE APPOINTMENT
Disciplining judges is a public debate in the US after Brett Kavanaugh’s
(left) controversial ascension to the SC; Chief Justice John Roberts

ContentsVOLUME XII ISSUE27
MAY20,2019
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6 May 20, 2019
14Wisdom Personified
India Legal was fortunate to have Professor NR Madhava Menon as one of its regular columnists.
We reproduce some excerpts from the various insightful pieces that he wrote for the magazine
LEAD
20House of Horrors
With the Supreme Court setting a deadline for the CBI to complete its probe in the Muzaffarpur
shelter home case, it is now expected that the agency will be forced to conduct a fair probe
SUPREMECOURT
18Clean Chit
Following a complaint against the CJI in a sexual harassment case, an in-house inquiry panel of
Supreme Court judges has come to the conclusion that there was no substance in the allegations
The Passing
of a Great
Teacher
The demise of Professor NR Madhava
Menon on May 8 has deeply saddened all
who knew him personally or through his
work as a writer, mentor and legal scholar.
His friend and colleague Prof Upendra Baxi
fondly recalls his popularity, prowess and
organisational skills
23Nothing More Sinister
In a sternly worded verdict, the apex court has upheld the constitutionality of the Pre-Conception
and Pre-Natal Diagnostic Techniques Act, 1994, despite the plea raising implementation issues
22Poll Politics
The Supreme Court has dismissed a plea by 21 Opposition parties to review its earlier order
rejecting 50 percent random verification of VVPAT slips with EVMs in the ongoing general election
12

GLOBALTRENDS
Talking Tough
The peace talks between the Taliban and
the US have so far excluded the elected
government of President Ashraf Ghani in
Afghanistan. In a desperate move to remain
relevant, the President called a loya jirga
REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Cover Photo: ANIL SHAKYA
Ringside............................8
Courts ...............................9
Is That Legal...................10
Media Watch ..................33
Satire ..............................50
COURTS
42
No Country for Ethics
The alarming number of corruption cases in the banking sector shows
that many Indians don’t look at wrongdoing as a moral issue but as
something acceptable as long as they don’t get caught
28
ECONOMY
Distress Call
The Delhi High Court has issued notices to the Delhi
government and the centre on a plea challenging the
privatisation of the Nirbhaya helpline
24
Controversy’s Child
A Madras High Court judgment which said that consensual
relationships between teenagers should not come under the
purview of the POCSO Act has come in for criticism
26
Emotive Issue
The anomaly-ridden OROP scheme is symptomatic of dysfunctional
civil-military relations despite the Modi government’s deification of the
armed forces, writes Major General Ashok Mehta
36
MYSPACE
Unusual Crime
Though adultery is not an offence under
the IPC, it remains so under Jammu and
Kashmir’s Ranbir Penal Code. This has
led to a piquant situation where a
colonel is being court martialled
because of this anomaly even though
he approached the apex court
48
A Simple, Stark Claim
The Delhi High Court has
issued notices to the Delhi
government and the
Department of Labour to
give domestic workers the
right to form trade unions,
thereby affirming their
constitutional hopes, writes
Prof Upendra Baxi
34
COLUMN
HEALTH
Payback Time 38
Johnson and Johnson has been directed to pay `25 lakh compensation to patients
affected by its faulty hip implants. Is this enough and how are compensations calculated?
FOCUS
Watch Out! 40
With TRAI coming down hard on DTH and cable operators over non-compliance with its
new tariff rules, customers can look forward to some relief
ENVIRONMENT
Landing in Trouble 44
The NGT has unearthed a big fraud by the Gorakhpur Development Authority relating to
150 acres of forest land with 9,500 trees which were auctioned off to two big colonisers
STATES
Facing Heat 46
The veil ban imposed by the Muslim Educational Society in Kerala has invited sharp
rebuke from orthodox sections who say it infringes upon the freedom of expression

8 May 20, 2019
“
RINGSIDE
“If you prove what
you have claimed,
then I will withdraw
all my candidates....
If you have lied, then
you will have to do
100 squats holding
your ears.”
—West Bengal CM
Mamata Banerjee on
PM Modi's allegations
that TMC leaders are
making money from
coal mining
“Enough is enou-
gh...Differences ap-
art, I know Atishi to
be a model of integri-
ty...fortunate to have
people like her in
public life. Guilty
must be punished by
EC, Delhi voters.”
—Swaraj India’s Yog-
endra Yadav on a de-
rogatory pamphlet
about Atishi, AAP
candidate, East Delhi
“I would like to
state unequivocally
that this [allega-
tion that Mr. Gan-
dhi was on holiday
with his family]
was not the case.”
—Former Navy
chief Admiral (retd)
L Ramdas on PM
Modi’s allegation
that former PM
Rajiv Gandhi used
INS Viraat for the
purpose in 1987
“Her coming here
will only result in a
few votes of the
AAP going to the
Congress. I would
like to appeal to her
to hold rallies in
Rajasthan, Madhya
Pradesh and Chha-
ttisgarh....”
—Delhi CM Arvind
Kejriwal on Pri-
yanka Gandhi hold-
ing Congress rallies
in the capital
“The alliance for-
med is to remove
the BJP’s anti-peo-
ple government....
It will be better if
PM Modi and the
BJP do not worry
about the next gov-
ernment at the cen-
tre....”
—BSP chief Maya-
wati on PM Modi's
claim that the SP
and Congress were
cheating her
“The driver is driving
the bus looking into
the rear view mirror.
And that is why
you get rubbish like
demonetisation and
the Gabbar Singh
Tax....”
—Congress president
Rahul Gandhi, refer-
ing to PM Modi in an
interview to HT
“The Reliance Group
takes this opportuni-
ty to request Rahul
Gandhi to clarify
whether his govern-
ment, for 10 long
years, was supporting
an alleged crony cap-
italist and dishonest
businessman, to use
Gandhi’s own words.”
—The Reliance Group
in a statement after
Rahul Gandhi called
Anil Ambani a
“crony capitalist”
“For me, it is happening in just three-four years
after having written that (NJAC) judgment. I
should be saying that I have started regretting, in
so many words, that it is so absolute. The other way
would have been better. The way independence has
been affected in the matter of seniority, delay.”
—Former Supreme Court judge Justice Kurian
Joseph at a book launch in Delhi
Anthony Lawrence

The Supreme Court dis-
missed a petition filed
by Congress MP Sushmita
Dev seeking action against
Prime Minister Narendra
Modi and BJP President
Amit Shah for their com-
ments made during the
ongoing election campaign.
In the petition, Dev, who is
an MP from Assam and the
president of the Congress
Women’s Cell, also object-
ed to the EC giving a clean
chit to the BJP leaders even
though their comments
allegedly violated the Model
Code of Conduct. She also
pleaded that the Supreme
Court should order the EC
to revise its decision.
Refusing to intervene, the
bench comprising CJI
Ranjan Gogoi and Justice
Deepak Gupta said that if
the petitioner wants to chal-
lenge the decision of the
EC, then a separate inde-
pendent petition will have
to be filed.
Courts
—Compiled by India Legal Team
Collegium proposes
new judges for SC
The Supreme Court Collegium has
recommended the names of
Justice Bhushan Ramkrishna Gavai,
judge of the Bombay High Court, and
Justice Surya Kant, Chief Justice of
the Himachal Pradesh High Court, to
the centre for elevation as Supreme
Court judges. In another decision,
the Collegium reiterated its recom-
mendation to elevate Justice
Aniruddha Bose, Chief Justice of the
Jharkhand High Court, and Justice
AS Bopanna, Chief Justice of the
Gauhati High Court, to the top court.
The centre had earlier returned the
two names. If the four recommenda-
tions are accepted, the top court will
have its full strength of 31 judges.
Nirav Modi denied
bail for third time
The Westminster
Court in London
rejected the bail
application of fugi-
tive diamantaire
Nirav Modi for the
third time. Modi is
wanted in India in
connection with the multi-crore
Punjab National Bank fraud and
money laundering case. Modi’s
lawyers doubled the bail security to
2 million pounds and offered that he
would be on 24-hour curfew at his
London flat. However, the judge was
not convinced. Modi was denied bail
at his first hearing on March 20 soon
after his arrest by Scotland Yard on
March 19. He was denied bail a
second time on March 29.
File report by Aug 15: SC on Ayodhya
SC refuses to
intervene in
EC’s clean
chits to PM
The Supreme Court res-
erved its order on the
pleas seeking review of its
December 14, 2018, verdict
against a probe into the
Rafale jet deal. The petition-
ers inter alia argued that the
centre had provided incor-
rect and incomplete facts to
the Court and thus played a
fraud. Attorney General KK
Venugopal, representing the
centre, invoked the national
security argument and said
that “no other court in the
world would examine a def-
ence deal on these kind of
arguments”. The Court dir-
ected both parties to file
their written submissions
within two weeks and
reserved its order. The CJI-
led bench also reserved
order in the related con-
tempt case against Cong-
ress President Rahul Gandhi
for attributing the “chowki-
dar chor hai” jibe to the top
court. Gandhi had earlier
submitted an unconditional
apology to the Court.
SC reserves order on
Rafale review pleas
The Supreme Court has given the
Ayodhya mediation panel time till August
15 to find a solution. The mediation panel
was constituted by the apex court on
March 8 to explore the possibility of an
amicable settlement to the decades-old dis-
pute. The panel comprises Justice FM
Khalifulah, a retired Supreme Court
judge, who is the chairman of the
panel, Art of Living founder Sri Sri
Ravi Shankar, and senior advocate
Sriram Panchu. A five-judge constitu-
tion bench comprising Chief Justice
of India Ranjan Gogoi and Justices
SA Bobde, DY Chandrachud, Ashok
Bhushan and S Abdul Nazeer took up
the panel’s report which was submit-
ted to the Court in a sealed cover.
During the brief proceedings, the Muslim
parties told the Court that they are open to
all possibilities of mediation, but the
Nirmohi Akhara complained that there isn’t
any mutual discussion among the parties.
The Court, however, said it is satisfied with
the way the mediation is proceeding.

ISTHAT
What is money laundering?
What legal action can be
taken against a person for
an offence under the Pre-
vention of Money Laun-
dering Act (PMLA), 2002?
Money laundering is the
process of covering up the
origin of money generated
through criminal activities
and make it appear legiti-
mate. Financial Intelligence
Units have been formed by
several countries to receive,
process and disseminate in-
formation on money-related
crimes and FIU-IND is the
India-specific agency that
disseminates information to
concerned national and in-
ternational authorities relat-
ed to money laundering.
While probing money laun-
dering charges, officers
under the Directorate of
Enforcement can arrest a
person and produce him
before a special court, judi-
cial magistrate or metropoli-
tan magistrate within 24
hours of arrest. If convicted
under the PMLA, a person
will serve a rigorous jail
term of between three to
seven years and pay a fine.
—Compiled by Ishita Purkaystha
Tracking Money Laundering
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
Is sexual harassment only about physical
contact? What are the legal options available
for victims working in the Supreme Court?
Sexual harassment also includes a demand
for sexual favours, any sexually coloured
remark, showing pornography and any ver-
bal or non-verbal conduct of sexual nature,
including stalking and voyeurism. In matters
of employment, a promise of preferential
treatment or threat of detrimental action, or
any other humiliation affecting a woman’s
health and safety, is construed as sexual
harassment. The women employees of the
Supreme Court can file a written complaint
to the Gender Sensitisation Internal Com-
plaints Committee (GSICC) of the Court. A
fact-finding sub-committee is formed and
the inquiry must be completed within 90
days. A complete record of proceedings is
then submitted to the GSICC and a copy is
made available to the concerned parties
within the next 10 days.
Sexual Harassment
And Legal Action
?
What is statutory bail?
Can it be denied to an
accused on any ground?
If the police fails to file a
charge sheet within a
specified time after the
accused has been
arrested, he/she will be
entitled to statutory/de-
fault bail under Section
167(2) of the Code of
Criminal Procedure,
1973. An accused can
stake claim on the expiry
of 90 days for any
offence punishable with
death, life imprisonment,
or imprisonment of not
less than 10 years, and
on the expiry of 60 days
for any other offence. An
accused is entitled to
statutory bail even if the
charge sheet is returned
by the magistrate due to
technical reasons. The
right is lost once the
charge sheet is filed.
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Lead/ Obit/ Prof Madhava Menon
12 May 20, 2019
ITTLE did I know that
Madhava Menon having
very recently initiated a
dialogue with me on consti-
tutional morality in India
Legal (January 21, 2019)
would no longer be able to respond to
me (“Constitutional Morality: ‘No
Entry’ in Adjudication?”, India Legal,
April 5, 2019).
Madhava thought adjudicative sup-
remacy was entailed in the newly fan-
gled-conception of constitutional moral-
ity and that it was a dangerous supple-
ment to the doctrine of basic structure
which already expanded judicial review
prowess. In contradiction, I insisted that
it was a concept, coeval with the Const-
popular he was. Already, tributes are
pouring in—identifying his devotion to
professional and clinical legal education,
his work in establishing so many nation-
al law schools and recalling his impas-
sioned care and concern about legal aid
and services. Fali Nariman and Faizan
Mustafa have applauded richly (The
Indian Express, May 9) Madhava
Menon’s many-sided contributions.
Some have hailed him as “the father
of modern legal education”, and while I
know he would have been pleased to be
so described, he would have himself
caveated this description. He would have
recalled the first generation pioneers of
modern legal education and research
(like Professors RU Singh, GS Sharma,
L
itution, and did not endanger legislative
powers, save rarely when basic funda-
mental rights were in dire conflict.
I was hoping to discuss the matter
further with him on April 13-14 at a
national seminar on legal education and
research reforms (convened by Professor
Jeet S Mann of National Law University,
Delhi). We heard that he was not well
and conveyed our best wishes to him,
but no one imagined the end of such an
illustrious career so soon thereafter.
Legal education in India has suf-
fered a big blow in the sad demise of
Prof Madhava Menon. We all have a
finite and contingent life in this world,
but the fact that many of us find the
news so abysmally shocking shows how
ThedemiseofProfessorNRMadhavaMenononMay8hasdeeplysaddenedallwhoknewhim
personallyorthroughhisworkasawriter,mentorandlegalscholar.Hisfriendandcolleague
ProfUpendraBaxifondlyrecallshispopularity,prowessandorganisationalskills
The Passing of a Great Teacher

Anandjee, AT Markose, MP Jain,
Ajjappa, PK Tripathi, Shiv Dayal, Paras
Diwan), and second generation figures
(like Professors SK Agarwala, SP Sathe,
Phiroze Irani, DN Saraf, RK Misra, IC
Saxena, TS Rama Rao, BS Murthy, SN
Jain, Mohammad Ghouse and others).
Menon would have liked to be re-
called, though, as a founder of a new
wave in legal education—namely, the
National Law Schools, starting with the
prototype at Bangalore. He made his
mission to establish National Law
Schools elsewhere and now the result is
that every state has one, while Maha-
rashtra has pioneered three. His views,
like most founders, may be summated in
the words of Louis XV: après moi le del-
uge (after me the deluge!) But Madhava
had also the good grace to appreciate
how some of his successors did struggle
to achieve excellence in legal education
under difficult circumstances.
Madhava knew the art of the possible
and was a tall voice for legal education
on the national scene. Successive gov-
ernments at the Union and states relied
on him for expert advice and he rarely
disappointed them. He was a champion
for reforms in the administration of jus-
tice, and did a mighty lot in terms of
judicial education as the first academic
director of the National Judicial Aca-
demy at Bhopal.
I had the privilege of knowing him as
a colleague in Delhi Law Faculty and we
each had a room on the second floor. He
was an enormously popular teacher and
a Head, for some time, of the Campus
Law Centre. Apart from being a talented
scholar of criminal law, he accomplished
many organisational tasks with aplomb.
And it was only when I pressed him, as
a friend, to more rigorously pursue
research interests, I gradually realised
that his many talents belonged else-
where—to wider and much neglected
tasks of institution-building.
I
was glad to facilitate his induction
into the Bar Council of India
Journal (called later the Indian Bar
Review). He arranged several refresher
programmes for senior Bar members
with the auspices of the Bar Council of
India Trust. I still recall the star-stud-
ded first programme attended by Fali
Nariman, Soli Sorabjee, Parmeshwar
Rao, Raja Reddy, Justice AP Chaudhry,
Rani Jethmalani and others at
Bhubaneshwar. The event was run with
the firmness of schedule and there we
all realised and relished the disciplinari-
an Madhava. Some of us later wondered
how he got along so well with a rather
anarchic and chaotic Justice Krishna
Iyer; their easy friendship remains still a
mystery for many of us. They worked
together on many causes, legal aid and
Lok Adalats.
Madhava had no difficulty in illustri-
ously leading the National Law School
University, Bangalore. This was after my
being for a decade the Honorary Direc-
tor-Designate of the School, which had
to be given up when the Bar Council
failed to pursue my recommendation
that at least half the State Bar Councils
raise 12 endowment chairs for bearing
names of eminent lawyers and jurists.
But Ram Jethmalani (the Chair of
BCI), GR Yethirajulu Naidu (the
Advocate General of Karnataka), Raja
Reddy (the managing trustee of the Bar
Council Trust), MN Mathur (later a jus-
tice of the Rajasthan High Court, and
Vice-Chancellor of Jodhpur National
Law University) worked together with
Professors GS Sharma (who first floated
the idea of a National Law School in
Jaipur Law Review), SK Agarwala, RK
Misra and me and organised the
University Ordinance and later the Act,
admissions test, curriculum, land and
other infrastructure. That was an excit-
ing period and Madhava was present at
the foundation stone laying ceremony by
Vice President M Hidayatullah and
Chief Justice Yashwant Chandrachud
and he addressed a session releasing the
Silver Jubilee issue of the Journal of Bar
Council of India.
The history of Indian National Law
Schools will be written later but when-
ever that is done, the name of Professor
Madhava Menon will be inscribed in
golden letters.
Adieu, and Ayyappa Saranam, my
good friend!
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
ILLUSTRIOUS FEAT
National Law School
University, Bangalore was
founded by Prof Menon

Lead/ Prof Madhava Menon’s Excerpts
14 May 20, 2019
ProfNRMadhavaMenonwasadistinguishededucatorinthefieldoflegaleducation.Hesetthe
pathforaholisticfive-yearlawcoursethatrevolutionisedthewaythissubjectistaughtinIndia.
ProfMenonheadedandtaughtatnumerousuniversitiesandearnedthesobriquetof“Fatherof
ModernLegalEducationinIndia”.Forhissterlingcontribution,hewasconferredthePadmaShri
in2003.IndiaLegalwasfortunatetohavehimasoneofitsregularcolumnists.Hewroteexten-
sivelyforthemagazine,sharinghisinsightsonawiderangeoflegalissueshavingseminal
importance.Herearesomeexcerpts:
A Man of
Immense Wisdom
Anil Shakya

On the January 12, 2018 press confer-
ence called by four seniormost judges of
the Supreme Court and the subsequent
impeachment motion against then Chief
Justice of India Dipak Misra, Prof
Menon wrote (May 7, 2018 issue):
“I would characterise the January 12
press conference by some judges of the
Supreme Court and the consequent
assault on the judiciary from several
quarters as “a self-inflicted wound”. The
ill-conceived impeachment motion by
Opposition parties, knowing full well its
futility, can be termed “an unnecessary
political gambit”. The Republic and We,
the People of India, are the losers in the
game which some judges and a section
of politicians played to settle personal
scores, advance partisan agendas or
whatever else….Asking for judicial re-
form needs to be welcomed, but con-
demning the system as a threat to dem-
ocracy and imputing mala fide inten-
tions to the head of the judiciary in a
press conference cannot be acceptable.
Though the justices said later that imp-
eachment is not a solution to the prob-
lem, they unwittingly invited the Opp-
osition parties to initiate action against
their senior colleague, the chief justice
of India….Whatever course this matter
takes in future, the damage is done and
it will take a long time and great effort
on the part of judges, particularly of
constitutional courts, to redeem public
trust and confidence in the impartiality
and independence of judges…”
When a senior member of the Bar and
BJP spokesperson reportedly requested
the prime minister to take immediate
steps to raise the retirement age of
judges at all levels to 70 years, Prof
Menon said (July 23, 2018 issue):
“…What is the logic for seeking an
increase in the retirement age? The rea-
sons are many and varied, of which pen-
dency is just one and not necessarily the
predominant one. Non-availability of
professionally competent hands in ade-
quate numbers even to fill the existing
vacancies is one of the principal reasons
for the demand. When High Courts con-
duct examinations for selection of
judges to the subordinate judiciary, incl-
uding for posts of district judges, hun-
dreds appear, but very few qualify. Year
after year, the experience of several High
Courts had been dismal in the sense
that not even half of the vacancies could
be filled up because of lack of suitable
candidates. The status of reserved seats
in the judiciary is even worse. Given the
income level of successful practitioners
(advocates), many of them would not
care to take up offers for positions in the
judiciary. Compromising merit to fill up
vacancies is inviting trouble in later
stages, bringing a bad name to the judi-
ciary and dissatisfaction to the litigant
public. Hence, there is a need to retain
competent and experienced judges to
serve the system as long as they are fit
and willing. This is the reason for sever-
al countries to adopt the system of
appointment for life....
“Revision of age, however, is not a
simple and innocuous exercise if the
main intention is to increase efficiency
in the system. Admittedly, there is a lot
of dead wood in the judiciary and it will
be an unjustified burden on litigants
and the public exchequer if incompe-
tence and inefficiency are allowed to be
carried on for longer periods. In other
words, extension of the retirement age
of judges should be conditional upon
efficiency in handling judicial work at
the appropriate levels…”
As a way to improve the judicial per-
formance standards, Prof Menon pro-
posed the introduction of an All-India
Judicial Service and wrote (January 21,
2019 issue):
“…A judicial system consists of three
elements—laws, institutions and the
personnel involved. Laws and institu-
tions are not self-executing and it is the
personnel who make the system deliver.
The inadequacies of laws and institu-
tions, to a large extent, can be overcome
if the personnel who man the institu-
tions are competent and motivated pro-
fessionals. If judicial reforms are looked
at from the above perspective, there can
be no doubt that the single-most
IntheMay7,2018 issue,ProfMenonwrote:“IwouldcharacterisetheJanuary12
pressconferencebysomejudgesoftheSupremeCourt(inpicture)andtheconse-
quentassaultonthejudiciaryfromseveralquartersas‘aself-inflictedwound’.”
UNI

important step to put the system on the
right track is to induct meritorious peo-
ple in adequate numbers to preside over
courts and tribunals. The National
Judicial Appointment Commission for
the higher judiciary and the All-India
Judicial Service (AIJS) for the subordi-
nate judiciary are, therefore, the twin
strategies to get the system to deliver
both on quality and quantity….
“AIJS has become essential because
the existing system under which High
Courts or State Public Service Com-
missions are recruiting judges to the
district judiciary is so full of loopholes,
delays and inefficiency that it is unable
to produce enough qualified candidates
to fill the vacancies. In some cases, even
those limited selections are challenged
in unending litigation, denying judici-
ary the services of meritorious candi-
dates. It is sad that while other public
services get relatively better candidates,
the judicial services even at the district
level are left to manage with less meri-
torious candidates or with none after
prolonged selection procedures and
substantial expenses. This is not be-
cause the judiciary is not an attractive
service to the talented, but because of
frustrating procedures and inefficient
management practices. AIJS selection
by a central agency under judicial
supervision will make the difference
that the system is waiting for….”
After reading Professor Upendra Baxi’s
comment on Attorney General KK
Venugopal’s concern over Constitutional
Morality being used by the Supreme
Court as yet another weapon to strike
down laws (December 24, 2018 issue),
Prof Menon responded by raising eight
fundamental questions (January 21,
2019 issue). They are:
1. “As an overarching principle of consti-
tutional governance, is not the concept
of Constitutional Morality and whatever
it means applicable to all three wings of
the State and the citizenry? If so, when
the legislature, which represents “WE,
THE PEOPLE”, makes a law, is it not
fair to say that such a law can be pre-
sumed to incorporate Constitutional
Morality? Should the Court in such cir-
cumstances be obliged to seek strict
scrutiny and positive evidence to strike
it down through judicial review?
2. Is there any justifiable fear in the
public mind that too much power is get-
ting concentrated in the judicial wing
without proper checks to prevent judi-
cial excesses and that works to the detri-
ment of not only Constitutional Morality
and Rule of Law, but to the basic struc-
ture of democracy itself?
3. Given the fact that there is no single
Supreme Court to decide on constitu-
tional questions and there are multiple
courts, depending on the constitution of
benches, and also given the fact that
often important constitutional questions
are decided by benches with a one- or
two-vote majority and further, given the
general impression that the rule of colle-
giality is very often missing among
judges, how does the power dynamics of
the bench impact on constitutional gov-
ernance and rule of law?
4. Is the Court free to invoke Consti-
tutional Morality to decide against the
text of the Constitution as in the case
16 May 20, 2019
ProfMenonraisedeightfundamental
questions(January21,2019 issue)on
thecontinuingdebateovertheuseof
ConstitutionalMoralitybytheSC,first
initiatedbyA-GKKVenugopal (above).
Lead/ Prof Madhava Menon’s Excerpts
DownMemoryLane
“…The convict at the time of kidnapping
and murdering a minor child was an
adolescent. He spent 18 years in jail
awaiting the gallows and all these
years, conducted himself as a person
who repented his crime. He endeav-
oured to be a civilised individual, contin-
ued his studies from jail and completed
his graduation. He thus demonstrated
to the Court that he was not a profes-
sional killer, was unlikely to repeat the
crime if given a chance to integrate him-
self in society and was in no way a con-
tinuing threat to society. To add to these
facts, his poem written in jail, though
not with the hope of commutation of the
death sentence, also strengthened the
judicial inference of reformative poten-
tial. It is on the basis of this evidence
that the court concluded that it was not
a fit case for the death penalty under
the “rarest of rare” principle…”
When the SC commuted a convict’s death sentence to life imprisonment
after considering various factors including the poems he wrote in jail, Prof
Menon, in one of his most widely appreciated pieces, wrote (March 18,
2019 issue):
Anil Shakya

relating to appointment of judges to the
higher judiciary?
5. When Constitutional Morality is in-
voked by judges of the same bench to
come to opposite conclusions as during
the Sabarimala judgment, what is the
message it gives for constitutional gov-
ernance and rule of law?
6. Is the Court the custodian of people’s
faith and belief as well? Can it possibly
interdict on customs and practices tra-
ditionally followed by religious denomi-
nations on grounds other than what are
provided for in Article 26? Are there
judicially manageable standards to eval-
uate every religious practice in every
religion? Is not complementarity of con-
stitutional institutions also part of
Constitutional Morality?
7. What happens when two Fundamen-
tal Rights, one guaranteed to individuals
and the other to groups of people, con-
tradict each other? If right to privacy is
interpreted to mean the prevention of
the State taking necessary steps to en-
sure security, what will happen to right
to life and right to freedom of individu-
als? Who is best to judge the right bal-
ance between liberty and security in the
era of terrorism and digital transaction?
8. Could Dr BR Ambedkar be wrong
when he said that Constitutional Mor-
ality is a “sentiment” which has to be
cultivated among the people as it is not
natural to them? Can the attorney gen-
eral be faulted when he said that as far
as Dr Ambedkar’s invocation of the doc-
trine is concerned, it was more a man-
date to the people and their representa-
tives, rather an additional source of
power for the Court?”
When Justice AK Sikri said, upon his
retirement as a judge of the Supreme
Court, that fair decision-making requires
“an element of femininity” in judges,
Prof Menon wrote (April 1, 2019 issue):
“…The question that arises is that if
“a feminine approach to justice” is
essential for fair decision-making, what
is being done to prepare judges for the
job. Justice Sikri said that judges with
the passage of time acquire that sense of
justice. Is it enough to leave it for judges
to acquire it through experience over a
period of time? Are there techniques to
assess the extent of “feminine approach-
es” in judges at the time of their
appointments? How far can judicial
education and training at the induction
stage or thereafter instil such feminine
qualities in those who do not possess
them? Can legal education provide the
foundation for cultivating feminine
approaches in analysing and appreciat-
ing legal provisions and judgments so
that lawyers are at least conscious of the
“feminine approaches deficit” in their
pleadings, arguments and conduct of
court proceedings?...”
ProfMenonaskedwhatisbeingdoneto
preparejudgesforthejob(April1,2019
issue)afterJusticeAKSikri(below)
saidthatfairdecision-makingrequires
“anelementoffemininity”injudges.
FEMININE JUSTICE
(Above) Students of St. Soldier Law College, Jalandhar, on their convocation day; Prof Menon
also said there is a dominance of males in the legal profession (April 1, 2019 issue)
Anil Shakya
UNI

Supreme Court/ Ranjan Gogoi Case
18 May 20, 2019
OT only must justice be
done, it must also be seen
to be done.” This maxim
has been repeated ad
nauseam at several fora
ever since a three-mem-
ber in-house committee of the Supreme
Court gave a clean chit to Chief Justice
of India (CJI) Ranjan Gogoi in a sexual
harassment case.
The committee said it found “no sub-
stance in the allegations” made by a for-
mer woman staffer of the apex court
that the CJI had sexually harassed her
and after she rebuffed his advances, she
and her family were targeted and vic-
timised. The in-house panel comprised
Justice SA Bobde, the second most-
senior judge in the SC, Justice Indu
Malhotra and Justice Indira Banerjee.
“The In-House Committee has sub-
mitted its report dated 5.5.2019 in acco-
rdance with the in-house procedure to
the next senior judge competent to
receive the report and also sent the copy
to the judge concerned, namely, the chi-
ef justice of India,” a press release signed
by the Supreme Court’s secretary gener-
al stated. Referring to the Court’s judg-
ment in the 2003 Indira Jaising case,
the panel added that its report consti-
tuted a part of the in-house procedure
and therefore it was not liable to be
made public.
Protests followed the announcement,
not just from women’s groups and
activists, but several senior advocates.
The police imposed Section 144 around
the precincts of the apex court and sev-
eral lawyers and activists were detained.
In a statement released to the press,
the complainant said that she was not
just “highly disappointed and dejected”
to learn that the in-house committee
FollowingacomplaintagainsttheCJIinasexualharassmentcase,anin-housepanel
whichprobedithascometotheconclusionthattherewasnosubstanceinit
By India Legal Bureau
SUPREME NO MORE
The recent turn of events has cast a shadow
over the apex court; (inset) CJI Ranjan Gogoi
N
“
Question of Credibility
Anil Shakya

appointed by the Supreme Court found
“no substance” in her sexual harassment
complaint, but also felt that “gross injus-
tice” had been done. “The committee
has announced that I will not even be
provided a copy of the report, and so I
have no way of comprehending the rea-
sons and basis for the summary dis-
missal of my complaint of sexual harass-
ment and victimisation. Today, I am on
the verge of losing faith in the idea of
justice,” she said.
Later in the day, several senior advo-
cates appearing on TV shows said the
report could be challenged not just by
the aggrieved person but by anybody.
The general refrain was that the charges
were not against any ordinary person
but against the chief justice.
Far from bringing about a resolution
of the issue, the in-house committee
seems to have planted more doubts in
the public mind. Delivering the Nani
Palkhivala lecture on May 8, former
Union minister Arun Shourie alleged
that the inquiry panel acted “like mem-
bers of a club” and in the process, had
done “injustice to the complainant, the
chief justice and the Supreme Court as
an institution”.
From the moment the complainant’s
charges were made public, a series of
missteps led the public to wonder if the
apex court, while dealing with a matter
regarding one of its own, would live up
to the lofty standards it sets for others.
An unscheduled meeting of judges dur-
ing the Easter weekend when the con-
troversy broke out was followed by the
setting up of a probe committee. How-
ever, when the complainant pointed out
that one of the judges on the committee,
Justice NV Ramana, was a personal
friend of the CJI, he recused himself.
This was coupled with the setting up of
the Justice AS Patnaik committee to
probe whether the complaint was part
of a larger conspiracy by former “dis-
gruntled employees” and others to bring
down the CJI.
T
his was followed by the complai-
nant talking about being intimi-
dated by the atmosphere during
her two sittings before the SC panel,
which, incidentally, did not concede her
demands. These were that she be allo-
wed to be accompanied by a lawyer and
that the probe committee proceedings
be video-recorded. She later told an
online magazine that she asked for a
lawyer’s assistance only because her
right ear was fully hearing impaired
while she could only partially hear from
her left. “During the proceedings, they
would ask me, ‘Do you understand?’ I
would say, ‘Lordship, can you please
repeat?’ You know, it scared me. How
many times can I ask them to repeat?
That was one of the reasons I was ask-
ing for a support person. But they did
not allow that.”
She refused to appear before the
panel’s subsequent meetings. Later,
reports appeared in the press of Justices
DY Chandrachud and RF Nariman
meeting the three-member panel to con-
vey their reservations about the probe
continuing despite the decision of the
complainant to refuse to participate in
the proceedings. But the apex court sec-
retary general rubbished the reports. “It
is most unfortunate that a leading news-
paper has chosen to state that Justice
RF Nariman and Justice DY Chandr-
achud together met Justice SA Bobde on
Friday evening i.e on 3rd May 2019.
This is wholly incorrect. The in-House
committee which is deliberating on the
issue concerning Hon’ble Chief Justice
of India deliberates on its own without
any input from any other Hon’ble judge
of this Court,” read his statement.
Within two weeks after it was set up,
the committee submitted its report, but
it will be kept under wraps. A statement
by the apex court said that “as part of
the in-house procedure, the report wo-
uld not be placed in the public domain.
Copies of the report were given to Chief
Justice Gogoi and the next senior judge
competent to receive the report”. Justice
Ramana, the third most senior judge,
was not handed the report as he had re-
cused himself from the committee. Also
left out was the complainant herself who
will probably never find out the grounds
on which the panel had come to the con-
clusion that there was “no substance” in
the 93-para sworn affidavit in which she
had extensively detailed her ordeal.
Whenthecomplainantpointedout
thatoneofthejudgesonthecommittee,
JusticeNVRamana(above),wasa
personalfriendofthechiefjusticeof
India,herecusedhimself.
“Theinquirypanelactedlikemembersof
aclubandintheprocess,didinjusticeto
thecomplainant,thechiefjusticeandthe
SupremeCourtasaninstitution.”
—FormerUnionministerArunShourie

Supreme Court/ Muzaffarpur Shelter Home Case
20 May 20, 2019
HERE was something ma-
niacal about the man laugh-
ing heartily in police custody
after being arrested for hav-
ing raped and killed girls
aged between 7 and 17 at, of
all places, a shelter home run by him.
The picture of the prime accused,
Brajesh Thakur, splashed across most
newspapers last year with an ear-to-ear
grin was perhaps the tipping point for
the Supreme Court. The brazenness
after the brutality unleashed on the chil-
dren prompted the apex court to moni-
tor the case and transfer it from Bihar to
the POCSO Court in Delhi.
Recently, the CBI, which had taken
over the investigations from the Bihar
Police late last year, filed a status report
in the SC. Its revelations, to say the
least, were shocking. Among the find-
ings include one that says 11 girls had
been killed in the shelter home run by
Thakur and his associate, Shaista Par-
veen alias Madhu. But equally shocking
is the allegation made by the petitioner,
Nivedita Jha, that the CBI is going slow
and shielding some powerful politicians
and officials. Attorney General KK
Venugopal, appearing for the CBI, told
the SC that the investigations will take
time and the CBI is still to decide
whether it wants to file separate charge
sheets in each case or a collective one.
The Supreme Court bench headed by
CJI Ranjan Gogoi gave the CBI time till
June 3 to complete investigations and
file a charge sheet in the POCSO Court.
The CBI revealed that interrogation
of Guddu Patel, an employee of Thakur’s
NGO, had led to the recovery of bones
of young girls from a burial ground. At
various stages of the investigation, it has
been found that employees of the shelter
home run by Thakur in Muzaffarpur,
Bihar, had been accomplices in the mur-
der and disposal of bodies of the girls in
various places, including a nearby river
and burial ground. The shelter home
has also been razed in search of bodies
inside its premises though there has
been no success for the CBI there.
A total of 11 people, including
Thakur, a district social welfare board
official, and chairman of the district
child welfare committee, Dilip Verma,
have been made accused in the case.
The absconding Verma surrendered on
December 18 while Thakur is lodged in
House Of Horrors
WiththeSupremeCourtsettingadeadlinefortheCBItocom-
pleteitsprobeintheMuzaffarpurshelterhomecase,itisnow
expectedthattheagencywillbeforcedtoconductafairprobe
By Neeraj Mishra
T
FLOUTING RULES
(Right) The shelter home
being demolished after it was
found that the building had
violated the approved plan;
(above) the prime accused,
Brajesh Thakur
twitter.com/ANI

MORAL RESPONSIBILITY: A protest demanding the resignation of CM Nitish Kumar
But what petitioner Jha has been
alleging in the Supreme Court without
taking any names is something similar.
She maintains that the CBI, after first
ascertaining the facts in the case at
great speed and arresting the 11 accused,
has since been deliberately going slow
as it is now trying to protect the
identity of powerful people in the Nitish
government.
Despite what Venugopal told the
apex court about paucity of time and
enormity of the investigation, the Court
looks determined to get to the bottom of
the case and the message seems to have
gone down the line that no accused
should be protected. It now depends on
the CBI to conduct a fair probe, file sup-
plementary charge sheets in the POCSO
Court and produce an honest status
report in the apex court, sparing none.
Patiala Jail.
The shelter home case is an example
of the decaying political eco-system,
particularly in Bihar. Thakur is the
archetypal small town social worker-
cum-journalist-cum-neta masquerading
as a do-gooder and milking government
schemes. He had all the handles needed
to exploit a system or ingratiate himself
with any influential group. He ran a
newspaper called Pratah Kamal which
gave him access to politicians, bureau-
crats and even the state assembly. More
importantly, it gave him access to funds
released by the social welfare depart-
ment for running shelter homes—an
area where government agencies are not
known to put in too much effort.
Thakur started a short-stay shelter
home for homeless girls and women. He
designed the homes as hostels for young
girls lost in life for the time being. It was
meant to provide them with stability of
tenure, shelter and food till such time as
they were able to stand on their feet
and get ahead in their lives.
The scheme, run through NGOs, was
funded by the central government’s
social welfare ministry and monitored
through a network of officials at the
state and district levels. The quantum of
aid was decided based on the work
being done by each shelter home and its
success in placing women in various
walks of life. The audit was done by offi-
cials with the detailed reports going
right up to the minister in charge in the
state capital.
The sordid affair in Muzzaffarpur
came to light when a social audit was
done by the Tata Institute of Social
Sciences (TISS) in April 2018. It report-
ed that at least 34 of the 42 inmates of
the NGO Seva Sankalp Evam Vikas
Samiti’s shelter homes run by Thakur
had been raped and several of them had
to undergo abortion. The Nitish Kumar
government instituted a police case on
May 31 and also ordered the social audit
of 16 other shelter homes across the
state. But the Opposition led by Lalu
Prasad Yadav’s RJD and Congress raised
the issue to a different pitch, forcing
Nitish to hand over the case to the CBI
which has been investigating the case
for the past eight months.
B
ut the twist in the case came
when the wife of an accused in
the case revealed that the hus-
band of a minister in the Nitish govern-
ment was a regular visitor at the shelter
home and should be investigated. Shiba
Kumari, the wife of district child protec-
tion officer Ravi Roshan, who had been
arrested on August 18, said that Chan-
deshwar Verma, the husband of state
minister for social welfare Manju
Verma, should also be investigated.
Manju, on her part, has accepted that
her husband accompanied her on an
inspection of the shelter home but was
not a regular visitor.
After an uproar in the Bihar assem-
bly, the minister went further and said
that Tejashwi Yadav might be behind
the allegations against her husband and
it was all politically motivated.
UNI
AttorneyGeneralKK
Venugopal,appearingfor
theCBI,toldtheSCthat
theprobewilltaketimeand
theagencywilldecideifit
wantstofileseparate
chargesheetsineachcase
oracollectiveone.Anil Shakya

Supreme Court/ EVMs
22 May 20, 2019
Supreme Court bench of
Chief Justice Ranjan Gogoi
and Justices Deepak Gupta
and Sanjiv Khanna dis-
missed a petition filed by 21
political parties seeking review of the
Court’s order rejecting 50 percent ran-
dom physical verification of Electronic
Voting Machines (EVMs) using Voter-
Verifiable Paper Audit Trail (VVPAT).
The Court said it found no reason to
modify its April 8 order which directed
the Election Commission of India (EC)
to raise the random matching from one
polling booth per assembly segment to
five. “We are not inclined to modify our
order,” the bench told senior advocates
AM Singhvi and Kapil Sibal, who app-
eared for the petitioners led by Andhra
Pradesh Chief Minister N Chandrababu
Naidu. The parties had referred to the
case of Dr Subramanian Swamy vs ECI
in which it was observed that VVPAT is
an “indispensable requirement of free
and fair elections”.
Hence, the petitioners contended
that “a 50% randomised verification in
each assembly constituency/assembly
segment is a reasonable sample size to
both (a) allay the fears of the general
public with regard to EVM tampering;
and (b) be a statistically significant sam-
ple size to ensure that EVMs are work-
ing properly”.
Singhvi pleaded that random match-
ing of VVPAT slips with EVMs be
increased to at least 25 percent against
the current 2 percent, which he said was
unreasonable. “The Supreme Court had
increased it from one to five (polling
booths per assembly segment). We have
asked for 50 percent but we will be
happy with 33 or even 25 percent. It is
for increasing satisfaction and as a con-
fidence-building measure,” Singhvi said.
The parties sought a review of the
order as it only raised the random verifi-
cation from 0.44 to a “mere 2 percent”.
They claimed this “will not make any
substantial difference to the situation
that existed prior to the passing of the
impugned order”. The plea was dis-
missed in less than two minutes. Soon
after this, a delegation of Opposition
parties met the EC to demand verifica-
tion of all VVPATs in an assembly seg-
ment if any discrepancy is found during
random checks.
The representatives of the 21 politi-
cal parties were Naidu (TDP), Sharad
Pawar (NCP), KC Venugopal (INC),
Derek O’Brien (TMC), Sharad Yadav
(LJD), Akhilesh Yadav (SP), Satish
Chandra Mishra (BSP), MK Stalin
(DMK), TK Rangarajan (CPI-M), S
Sudhakar Reddu (CPI), Manoj Kumar
Jha (RJD), Arvind Kejriwal (AAP),
Farooq Abdullah (NC), K Danish Ali
(RJD), Ajith Singh (RLD), M
Badruddin Ajmal (AIUDF), Jitin Ram
Manji (Hindustani Awam Morcha),
Ashok Kumar Singh (JVM), Khorrum
Anis Omar (IUML), Prof Kodanadram
(Telangana Jana Samithi) and KG
Kenye (NPF).
The Opposition parties had moved
the Court after reports of defective
EVMs emerged after the first phase of
the Lok Sabha polls. In some cases, vot-
ers reportedly cast their votes for a party
but the EVM would record it for ano-
ther party. The EC had contended that
the results would be delayed by six days
if the parties’ demand was met.
—Shaheen Parween
No Review of Order
TheCourthasdismissedapleaby21politicalpartiesto
reviewitsApril8orderrejecting50percentrandom
verificationofVVPATslips
A
UNI
Thepartiessoughtareviewoftheorder
asitonlyraisedtherandomverification
from0.44toa“mere2percent”.They
claimedthis“willnotmakeanysubstan-
tialdifferencetothesituation....”

Supreme Court/ Sex Determination Tests
OTHING can be a more
sinister, immoral and anti-
social act than allowing
female foeticide.” With
those words, a Supreme
Court bench comprising Justices Arun
Mishra and Vineet Saran brought the
curtains down on a two-year-old case
that challenged the constitutionality of
Sections 23(1) and 23(2) of the Pre-
Conception and Pre-Natal Diagnostic
Techniques (Prohibition of Sex Selection
Act), 1994. The petitioner, Federation of
Obstetrics and Gynaecological Societies
of India (FOGSI), had contended that
the Act was not being implemented
practically.
They submitted that they were being
charged with female foeticide on the
basis of certain clerical mistakes in
Form F. The ambiguous wording of the
Act is such that the petitioners are liable
to be charged with the heinous crime of
female foeticide and sex determination
and that the members have undergone
criminal prosecution, they claimed.
Section 23(2) empowers the state
medical council to suspend the registra-
tion of any doctor indefinitely who is
reported by the appropriate authority
for necessary action. The petitioners
contended that this provision is ultra
vires the Constitution as it assumes the
guilt of the doctor even before any trial
by a competent court. It further con-
tended that the Act fails to distinguish
between the absence of intention and
minor clerical errors. The Form F does
not fulfil the objective of what it was
enacted for and any minor clerical mis-
take in Form F may result in conviction
of the doctor.
The Union of India, on the other
hand, contended that the petitioner was
trying to mislead the Court in the garb
of a social cause and that a criminal
activity cannot be declared to be ultra
vires the Constitution. The Union sub-
mitted that the intention while enacting
this Act was to uphold the rights of
women and children and to abolish the
practice of pre-natal tests for gender
determination of the foetus, which
subsequently leads to female foeticide
in a majority of the cases. It was con-
tended by the government that the
male-female ratio of the country is not
equal and thus the centre is duty-bound
to protect the welfare of children. Pinky
Anand, additional solicitor general, also
contended that there is an alarming
decline in the child sex ratio in the
country. In several districts of the coun-
try, the ratio is less than 800 girls for
1,000 boys.
The medical fraternity counters this,
saying that in India, where a single per-
son does several ultrasounds a day, cleri-
cal errors in Form F are a reality. “It is
difficult to understand why these mat-
ters go to the apex court for solution
when in the current parliament itself
there are over 30 doctors. Why can’t
they sit with medical professionals and
come out with laws which are both doc-
tor- and patient-friendly. Interference by
the courts only means a discordance
between the parliament and the profes-
sion,” said a doctor who did not want to
be named. As for the need to arrest the
declining sex ratio, the feeling in the
community was that it has to be a move-
ment by the medical profession and not
the regulators.
—The writer is President-elect,
Confederation of Medical Associations of
Asia and Oceania, and President, Heart
Care Foundation of India
Foeticide Next
To Genocide
TheSupremeCourtupholdstheconstitutionalityoftheProhi-
bitionofSexSelectionAct,1994,throwingoutthepetitioner-
doctors’plea thatitwasnotbeingimplementedpractically
By Dr KK Aggarwal
N
NO GENDER TESTS
Ultrasound tests to determine the sex of the
foetus are banned in India
UNI
“

Courts/ Nirbhaya Helpline
24 May 20, 2019
HE Delhi High Court re-
cently issued notice to the
Delhi government in a mat-
ter pertaining to the privati-
sation of a women-in-dist-
ress helpline (181), popular as the “Nir-
bhaya” helpline. The petition was filed
by former workers of the helpline, who
contended that issues of women’s safety
were at stake due to privatisation, and
opposed the move. The operations of the
helpline have been handed over to a pri-
vate party, Caretel Infotech, in Naraina
by the Delhi government.
The High Court took due considera-
tion of the contention raised and held
that the response of the state govern-
ment was needed on the issue, and
accordingly issued notice. The notice
was issued by the bench consisting of
Chief Justice Rajendra Menon and
Justice AJ Bhambhani.
The helpline was started after the
Nirbhaya incident in 2012 that shocked
the nation’s conscience. Set up in Delhi
and across the country to support wo-
men in distress, the helpline was meant
as a one-stop solution and grievance
redressal helpline for women.
Incidentally, the women petitioners
in this case are the same who had actu-
ally started the helpline. They argued in
their plea that by privatising the 181
helpline, the Delhi government had
transferred a State function, which was
in the interest of public safety and
meant to ensure safety and protection of
women and children, to a private party.
The counsel for the petitioners, advo-
cates Mohan Katarki and Anandita
Pujari, stressed that the matter was of
prime importance as it related to the
safety of women. They contended that a
breach of trust had been committed by
roping in a third party and it affected
the aggrieved women who had earlier
reached out to a State-sponsored help-
line and shared critical information on
their vulnerability.
They further contended that the con-
trol over the operations of the helpline
would also be lost once the privatisation
was complete. In the event of any kind
of breach of privacy or safety at the
hands of this private organisation, the
responsibility would have to be squarely
borne by the State, they cautioned.
The petitioners also reminded the
High Court that the very purpose of the
helpline would be defeated if the gov-
ernment allowed the privatisation
process to be carried through. It would
also open up the helpline to threats of
breach of privacy, not to speak of the
safety of women in distress.
Another important contention raised
by the petitioners was that as the help-
line keeps a record of all calls received
relating to incidents of violence against
women, child sexual abuse and dowry
harassment, etc, it would not be prudent
to pass on such sensitive information to
a private entity as there were ample
chances of it being misused.
The petitioners also submitted in
their plea that ever since the helpline
was started, they had been working
from the premises at the Delhi Secre-
tariat. However, they were taken aback
after receiving a WhatsApp message a
couple of months ago. The message
asked them to report to the offices of
Caretel Infotech in Naraina.
—Furkan Ahmed
Distress
Call
TheDelhiHighCourthas
issuednoticetotheDelhi
governmentonaplea
challengingitsprivatisation
T PROMPT SERVICE
The 181 helpline has been widely used not
only in Delhi but in many other states as well,
including Uttar Pradesh
Theoperationsofthehelplinehavebeen
handedovertoaprivateparty,Caretel
Infotech,inNaraina,andthepetitioners
whostarted“181”haveopposedthe
movecitingsafetyandprivacyconcerns.
UNI

Courts/ Age of Consent
26 May 20, 2019
N a recent judgment, the Madras
High Court said that consensual
relationships between teenagers
aged between 16 and 18 years who
are infatuated or innocent should
not come within the purview of the
Protection of Children from Sexual Off-
ences (POCSO) Act, 2012, which awards
not less than seven to 10 years of rigor-
ous imprisonment for such acts. It fur-
ther said that a child should be rede-
fined as someone below 16 years of age
instead of the current 18.
Justice V Parthiban made this rec-
ommendation while setting aside a con-
viction order and 10 years’ imprison-
ment awarded by a Mahila Court in
Nammakkal district of Tamil Nadu in
2018 to a schoolboy. He had allegedly
abducted a 17-year-old girl and had a
sexual relationship with her in the guise
of performing “marriage” in a temple.
Interestingly, during the course of
the trial, the girl completely denied all
charges levelled against him and clai-
med that he was only an acquaintance.
There was no substantial evidence
against him. “Yet, the Mahila Court
erroneously convicted the accused boy
merely on the basis of hearsay evidence
of the concerned girl’s relatives and
neighbours,” the judge ruled.
He called for a report from the Tamil
Nadu Commission for Protection of
Child Rights and learnt that a majority
of cases filed under the POCSO Act
were related to elopement. The judge
further said that suggestions made by
him regarding insulation of teenagers
may be discussed and debated by all the
stakeholders.
The judge further said that such
teenagers could be dealt with under
Who is a Child?
AMadrasHighCourtjudgmentwhichsaidthatconsensualrelationshipsbetween
teenagersshouldnotcomeunderthePOCSOActhascomeinforcriticism
By R Ramasubramanian in Chennai
RIGHT TO BOND
The High Court observed that teenagers in
consensual relationships should be dealt with
under liberal provisions of law
I
Representative Picture: UNI

more liberal provisions of law by intro-
ducing the latter in the POCSO Act
itself. He expressed his concern over the
ever-increasing number of sexual off-
ences despite stringent laws and various
steps taken by the State to create aware-
ness about them. He recommended that
the government consider appointing a
high-level committee comprising social
auditors, psychologists, social scientists
and other eminent people to study the
problem and come up with solutions to
arrest the rise in such crimes.
I
n his 55-page judgment, the judge
said: “Before bringing the curtain
down, certain loud thinking on the
issue needs to be expatiated. Of late,
society has been witnessing alarming
rise of incidence of sexual assault on
women and children as well. More than
treating such growing incidence as a
legal issue, dealing with the offenders of
sexual assault by resorting to most
deterrent provisions of penal laws, the
cause of such perverse and wicked
behaviour among some men, who were
otherwise normal in their disposition,
need to be examined and studied, like
what are the factors which are likely to
constitute and provoke such predatory
sexual instincts to some members of the
society to commit such horrific crimes,
shaking the very moral foundation of
the society we live in. Literally, no day is
spared without a report of sexual assault
on children and women, despite strin-
gent laws dealing with such crimes.”
He added: “Society must collectively
introspect what is it that drives some
men to unleash their libidinous rage on
hapless children and women of all ages.
The cause for such abominable deviant
conduct on the part of the perpetrators’
sexual crimes on children and women is
perhaps because of access to uncensored
pornographic and erotic materials that
are available on the internet 24x7. Acc-
ess to such provocative and lewd sites
lead to criminal sensuality that drives
the perpetrators to commit such app-
alling crimes on children and women in
complete depravity. When minds are
filled with lust, smouldering all the time
by watching pornographic site of all
kinds on the handset or otherwise, such
crimes are the natural result of the
depraved minds.”
His anguish was evident when he
said: “Further, the society which domi-
nantly comes under the influence of
mainstream cinema, must collectively
express its concern over certain contents
of some films, though certified by the
censor board, which are created and
intended to appeal to the baser instincts
of the viewers. In some films, women
are objectified and stereotyped and por-
trayed as mere symbol of carnal attrac-
tion and amorous appeal. The society
which has been rooted in one of the old-
est civilisations of the world is facing its
gravest challenge of steep cultural fall
and degradation of an inconceivable
kind, where children and women come
under constant sexual attacks, day in
and day out, pushing the society to the
brink of its civilised existence. In a soci-
ety where sexual crimes against children
and women are the order of the day,
something has gone horrendously wrong
with evolution. The answer must be
found beyond the criminal laws and
its implementation.”
Interestingly, many child rights acti-
vists and NGOs oppose these recom-
mendations of the High Court. “This is a
dangerous development. India is a sig-
natory to international conventions
which prescribe that the age of children
is 18. The Juvenile Justice Act, the
POCSO Act, the National Commission
for Protection of Child Rights and other
related Acts all say that up to 18 years, a
boy or girl is considered a child. You can
vote, you can open a bank account, you
cse and you can own a property only if
you attain the age of 18. Then how can
you decrease the age of a child to 16 for
consensual sex?” asked A Devanayan,
an activist.
“The High Court says that those who
are indulging in consensual sex after the
age of 16 (for girls) and 21 (for boys) can
face trial under other provisions of crim-
inal law and not under POCSO. This is
inviting disaster. Over 75 to 80 percent
of rape cases (where the affected chil-
dren were below 18) which were con-
ducted under other provisions of crimi-
nal laws ended up in the acquittal of the
accused persons. But in cases which
were conducted under the POCSO Act,
the success is far better. So the govern-
ment and lawmakers should reconsider
this recommendation of the Madras
High Court.”
Another child rights activist, Ponni-
valavan, said such recommendations are
a recipe for disaster. “Already, the Modi
government had started tinkering with
the Juvenile Justice Act by bringing
down the age of children from 18 to 14
for labour. This amendment says that
children who have attained the age of 14
can be used in family professions after
their schooling hours.
“When the concept of ‘family’ itself
has not been defined, how can we
ensure that children are not forced to
work in family professions? This will
put the clock back. At a time when
crimes against children are on the rise,
this is a sad development.”
JusticeVParthibanoftheMadrasHigh
Courtsaid,ratherthanresortingtodeter-
rentprovisionsofpenallawsinsexual
assaultcases,thecauseofsuchbehav-
iourneedstobeexaminedandstudied.

Economy/Banks/ Ethical Conduct
28 May 20, 2019
IMITED liability laws are not
designed to protect compa-
nies from their ethical respon-
sibilities. Businesses world-
wide are increasingly becom-
ing aware of the need for ethi-
cal considerations in their operations. It
is now getting harder for businesses to
survive for long by cheating and swin-
dling—good reputations are imperative
for long-term success. The age-old
adage about the difference between a
hustler and a businessman is truer today
than it has ever been. A hustler makes a
quick buck by cheating, but this gain is
short-lived; a businessman, on the other
hand, makes a reasonable profit through
honest practices and survives a lifetime.
Among all sectors, the banking
industry is unique in its adoption of eth-
ical practices because the business is
based entirely on trust. When people
deposit their life savings in a bank, they
do it with the faith that the money will
be there when needed. This requires
banks to lend responsibly, especially in
the modern era of fractional lending
where banks lend far more than they
hold in deposits.
Recent cases of unethical behaviour
by senior executives in Indian banks
have cast a pall on the entire banking
Asincreasingcasesofcorruptionhitthebankingsector,itisobviousthatmanyIndiansdon’tlookat
wrongdoingasamoralissuebutassomethingacceptableaslongastheydon’tgetcaught
By Sanjiv Bhatia
L
A Country for
UNETHICAL BEHAVIOUR
(Top, L-R) Chanda Kochhar,
former CEO of ICICI Bank;
former CEO and MD of
Allahabad Bank, Usha
Ananthasubramanian; Rana
Kapoor, the co-founder of Yes
Bank; former Punjab National
Bank executive director Sanjiv
Sharan; (Facing page) Bank
employees at work
in Guwahati

system. While these indiscretions are
not new to a sector that is heavily con-
trolled by the government, they come at
a time when banks are under a lot of
pressure from bad loans. Taxpayers are
beginning to question the ethical
responsibilities of bank executives, and
the RBI is proposing new rules to incen-
tivise good behaviour and punish errant
and unethical practices.
Chanda Kochhar, the powerful CEO
of ICICI Bank, was once the poster for
women empowerment. But she was
recently fired when allegations of crony-
ism and improper loan practices were
levelled against her. Rana Kapoor, the
Bluffmasters
UNI
Amongallsectors,thebankingindustryis
uniqueinitsadoptionofethicalpractices
asthebusinessisbasedontrust.Banks
needtolendresponsibly,especiallyinthe
moderneraoffractionallending.

co-founder of Yes Bank, was forced out
by the RBI because he failed to ade-
quately disclose the true extent of the
bank’s bad loan problem. The CEO
and MD of Allahabad Bank, Usha
Ananthasubramanian, was fired on the
last day of her term and a CBI inquiry
launched against her and Punjab
National Bank executive director Sanjiv
Sharan for their role in the `14,000 loan
scandal involving Nirav Modi.
The ethics of a nation’s businesses
often reflect those of its society.
Anthropologist Ruth Benedict popu-
larised the distinction between a guilt-
based society and a shame-based cul-
ture. In guilt-based societies, people
know their behaviour is good or bad by
what their conscience feels. They refrain
from specific actions because they inher-
ently recognise them to be wrong. The
US and much of Europe would be
examples of societies that have a guilt-
based culture.
In a shame-based society, a person’s
behaviour is often based not on moral
perceptions of right and wrong but on
the risk of being caught while doing
wrong. Personal honour and how others
in the community perceive an act is
more important than individual values
of right and wrong. “A thief is the one
who gets caught,” as the saying goes. In
such cultures, the first rule when you do
wrong is, don’t be found out, and if you
are, then bluff your way through. Admit
to wrongdoing only when every other
alternative has failed because it will
bring shame and disgrace.
N
either of these cultures is per-
fect and there is value to be
found in each. Also, while every
society has individuals that would fall
into either category, one is forced to look
at average tendencies when studying
social behaviour. Both types of cultures
teach personal conduct but have very
different approaches to wrongdoing.
As a result, they have very different
implications for social discipline. The
positive aspects of a guilt-based culture
are its concern for truth and justice,
the preservation of individual rights,
and the sense of personal responsibility
that comes from knowing that you alone
are responsible for doing right even
when no one is watching. In the shame-
based culture, the desire to avoid shame
to the exclusion of all else is the overrid-
ing factor.
A good illustration and test of these
conflicting moral behaviours is the 1 am
traffic light test. In a guilt-based society,
it is more likely that a person will not
jump a red light even at 1 o’clock at
night because he knows it is wrong.
But in a shame-based society, he proba-
bly will, knowing that he is unlikely to
get caught.
Like most Asian societies, India has a
shame-based culture. What prevents
people from doing wrong is not guilt but
the fear of getting caught. Most people
in India would fail the 1 am test and
jump the traffic light. In such a culture,
INDIA’S SHAME-BASED CULTURE
(Above, L-R) A march in support of the
accused in the rape and murder of a girl
in Kathua; a khap panchayat meeting;
Actor Salman Khan in Jodhpur court in
the blackbuck poaching case
Therecentcasesofunethicalbehaviour
byseniorexecutivesinbankshavecasta
pallontheentirebankingsystem.The
indiscretionscomeatatimewhenbanks
areunderpressurefrombadloans.
30 May 20, 2019
UNI

people with power act like they have a
license to engage in secret wrongdoing.
When a popular Bollywood actor was
killing animals that are on the brink of
extinction, his conscience did not alert
him to the fact that he was doing wrong.
In his shame-based view of things, it
mattered only that he would not get
caught at night and even if he did, his
status as a popular movie star would
allow him to bluff his way out.
The 2018 rape and brutal murder of
an 8-year old girl in Kathua, Jammu,
is another unfortunate example of
India’s shame-based culture. The alleged
killers were members of a religious
organisation and raped the child in a
temple in front of the very gods they
feared. They had no moral conscience or
guilt of the terrible deed they were
doing. They thought they were doing
their religious community a favour and
would be protected. And as is typical of
shame-based violence, this act was
carried out by a group of people who
each sought embrace from their reli-
gious brotherhood.
S
hame has a place in any moral sys-
tem—it does prevent many from
doing wrong. But when it domi-
nates guilt and personal responsibility,
then people are less reluctant to be
honest, especially if they know they can
get away with it. Such shame-based
beliefs permeate almost every aspect of
Indian life. From politicians to financial
institutions, corporations, and even
doctors—almost all exhibit the behav-
iours of a culture that doesn’t look at
wrongdoing as a moral issue but as
something acceptable as long as they
don’t get caught.
India is a complex country with a
billion conflicting interests. It is a
mostly recalcitrant society which lacks
clear rules of personal and public
behaviour, poor understanding of the
GROUNDED IN MORALITY
A course in business ethics is mandatory in
all business schools in India. This will help
students to ensure ethical decision-making
when they become managers in future
UNI
indianacademy.edu.in

rights of others and woefully little sense
of personal responsibility and account-
ability. It is also a country steeped in
centuries of traditions that are tough to
change. For example, the “khap” tradi-
tion in Haryana, with its focus on com-
munity acceptance of right and wrong,
is a shame-based society that domi-
nates the lives of its people. Similar tra-
ditions can be found everywhere else in
the country.
T
he recent wave of scandals invol-
ving moral turpitude among exe-
cutives in the banking industry is
a cause for grave concern and must be
resolved swiftly and sternly. Banks and
financial markets are essential to the
development of a modern economy and
these scandals can cause severe econom-
ic damage and may threaten the stability
and reputation of banks and the finan-
cial sector as a whole. Shaming the per-
petrators is essential if a message is to
be sent to the banking industry.
In the US, when well-known people
are arrested, police officers take them on
a “perp walk” where they are made to go
through a public area so they can be
seen and photographed by the media.
Such arrests send a strong message of
deterrence and could be used effectively
in shame-based cultures like India.
It is imperative, also, that a course in
ethics, both business and social, be in-
troduced across schools in the country.
Just bringing in conversations on the
importance of ethics and exposing
young minds to the values of right and
wrong will, in a short time, create a gen-
eration that is more responsive to ethi-
cal dilemmas. The goal should be to cre-
ate a culture of ethics from an early age
by making it an integral part of the edu-
cation curriculum.
A course in business ethics should
also be made mandatory in all business
schools to help students understand that
they can shape the future as leaders and
managers by nurturing an environment
that enables ethical decision-making.
Japan is an excellent example of a coun-
try that moved from a shame-based cul-
ture to a guilt-based within one genera-
tion by emphasising ethics as an integral
part of its education curriculum. India
can emulate that, and if politicians and
policymakers are serious about address-
ing the issue of corruption, they have to
do more than just become personal
examples—they have to change the
minds of the younger generation by cre-
ating an educational environment that
encourages open discussion of ethical
dilemmas and how to solve them.
In sensitive areas like the banking
sector, norms have to be changed.
Several studies have shown that bank
employees that take a professional oath
analogous to the Hippocratic Oath for
physicians have significantly higher lev-
els of ethics compared to those that
don’t. When supported by regular ethics
training, international banks have found
that employees shift their focus from
their short-term benefits to more altru-
istic measures like the impact of their
behaviour on society.
Corruption in the banking industry is
a manifestation of a more significant
problem in India. An ineffective and
slow-moving judicial system, an educa-
tional system that forces short-term rote
learning over more enduring lessons on
values and morals, an overreaching gov-
ernment which controls large swathes of
the economy and a shame-based culture
where survival trumps rights, are creat-
ing rampant corruption and sucking the
life out of the nation.
A “Swachh Bharat” campaign to
sanitise attitudes towards ethics and
personal responsibility is the call of the
day. But that can only be done by lead-
ers and not politicians.
—The writer is a Financial Economist
and Founder, contractwithindia.com
32 May 20, 2019
wikipedia
PLEADING GUILTY
(Left) A repentant Kobe Steel president and
CEO Hiroya Kawasaki bows in front of the
media in Japan. He had to quit following a
data fraud scandal; Ruth Benedict
UNI

Media Watch
T
elevision’s pugna-
cious bad boy Ar-
nab Goswami is
making more news these
days than actually repor-
ting it. In the middle of a
bitter spat with India TV
head Rajat Sharma, he
has just announced that
he is buying back shares
from investor companies
like the Rajeev Chandra-
sekhar-owned Asianet
Media. The idea, accord-
ing to insiders, is that
Goswami wants the
newly named Republic
Media Network to be-
come an editor-run chan-
nel (Chandrashekar is a
BJP MP). However, he
still has a big fight on his
hands with Rajat Shar-
ma, the powerful presi-
dent of the National
Broadcasting Union
(NBA). Apparently, a
number of complaints
have been filed with the
NBA against Republic
Bharat (Goswami’s
recently launched Hindi
channel) and its alleged
manipulations to spike
its viewership, a charge
also levelled at Republic
TV when it was launched
two years ago. India TV,
NBA and other broad-
casters have accused
Republic Bharat of artifi-
cially boosting its viewer-
ship numbers. In the lat-
est BARC ratings, Rep-
ublic Bharat has em-
erged as the third most-
watched Hindi news
channel and the compe-
tition is alleging foul play.
Republic’s Day
I
T was quite amusing to see NDTV
boss Prannoy Roy, who has been
perambulating the country interview-
ing the major players in the on-going
general election, do a one-on-one with
Samajwadi Party President and former
chief minister of UP, Akhilesh Yadav. It
turned out to be a one-on-two instead,
largely because Roy is not very com-
fortable conducting interviews in
chaste Hindi. He had a local corre-
spondent who questioned Akhilesh but
whenever Roy wanted to interject or
ask a question he would turn to Dim-
ple, Akhilesh’s articulate and politically
savvy wife who would answer in Hindi
or occasionally in English.
Judging by the jugalbandi, Dimple
came across as confident and very
much a savvy political thinker as
opposed to a mere politician’s wife a la
Rabri Devi.
English Vinglish
T
his election may be all about vote
banks but the ones laughing all
the way to the bank are the
Indian advertising market, media hous-
es and digital platforms. The pink pa-
pers have billed this the most expen-
sive election in the world. According to
estimates, ad spend by political parties
is expected to be 73 percent higher
than the 2014 Lok Sabha
polls. Consequently, ad
rates for TV channels have
registered a huge spike,
with many channels tying
up with sponsors for long-
term deals. Some have
tied up with different spon-
sors for specific election
coverage. English, Hindi
and regional channels
have made the most of the
bonanza, thanks to the seven-stage
polling decreed by the EC, which
means their sponsored coverage lasts
way past the counting day on May 23
when viewership is at its peak and ad
rates go astronomical. Much of this is
to do with the fact that this is seen as a
game-changing election with huge
implications for India and its people,
which explains the huge spike in view-
ership and ad rates.
F
rom digital and the online space,
the new frontier for media houses
seems to be radio. The prolifera-
tion of radio stations and the combina-
tion of Bollywood music and talk shows
have spawned a huge audience, and
correspondingly, advertising. According
to AZ Research’s Radio Listener’s Res-
earch Report, more than 64 percent of
people listen to FM radio every day. The
leading players reveal the popularity—
Radio Mirchi has a listener base of 46.5
million, Red FM radio station garners
400 million listeners, as does Big FM
which covers 45 cities, 1,200 towns and
50,000-plus villages and has a weekly
reach of 4.2 crore Indians. Then there
are the regional stations. With radio ads
picking up, media companies are look-
ing to expand their radio footprint. HT
Media Limited (HTML) has acquired a
majority stake in Next Mediaworks
Limited (NMW), which operates seven
FM radio stations across major metros,
including some in the international
genre. This brings NMW’s FM stations
across Delhi, Mumbai, Bengaluru,
Kolkata, Chennai, Pune into the HTML
fold. The move has positioned HTML as
the strongest radio player in India.
HTML is the printer and publisher of
three leading dailies and operates Fever
FM and Radio Nasha. The move signals
potential profits from radio, as media
owners follow the advice of rock band
Queen’s hit song, “Radio Ga Ga”.
Radio Ga Ga
Cashing In

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