Professional Documents
Culture Documents
India Legal: Issue 15 September 2014
India Legal: Issue 15 September 2014
L
STORIES THAT COUNT
Medical Crimes:
Can victims ever get justice?
September 15, 2014 `100
www.indialegalonline.com
I
The putrefying Ganges is Indias national disgrace. Can Modi deliver on his
campaign promise to revive the worlds holiest river?
Baby-killer Sisters:
In cold blood
R
N
I
N
o
.
U
P
E
N
G
/
2
0
0
7
/
2
5
7
6
3
P
o
s
t
a
l
R
e
g
d
.
N
o
.
U
P
/
G
B
D
-
1
9
7
/
2
0
1
3
4
-
1
6
CRY ME A RIVER
lWho will be hit worst by Courts
Coalgate crackdown?
lDoshipura: Shia-Sunni imbroglio
l
At Last: weeding out antiquated bills
l
Bribes-for-bank-loans scam surfaces
Vanishing Birds:
Can laws save them?
ALSO
14
40
44
32
74
AND
Should parents encourage kids to play with tablet APPS?
26 36 60
NLY a writer of childrens books like
Chambers can so appealingly conjure up the
mystery, the majesty, the living force of a river
and bring home with such dynamic brutality
the reality of how each one of us dies a thousand
deaths when we take part in the killing of a river. We
do not even know it, but every Indian alive today, and
those who lived a generation before us, is guilty of
strangling and torturing the river Ganges to death.
She is writhing in agony before our very eyes. We are
spending money on keeping her lungs gurgling on life
support systems, like ICU doctors who put a patient
on whom theyve given up, on a respirator and then
wash their hands clean with a detergent.
But like Lady Macbeth we will have the smell of
blood on our hands and all the perfumes of Arabia
would not make our hands smell better. It is not my
purpose here to go into the wondrous mythology of
the Ganges, the endless verses composed by our rishis,
the ecological havoc which hangs over our heads as
Maa Ganga dies and dies, choked and poisoned by the
effluents of mans greed and the instinct to plunder. If
you are unaware of this, go study it. Ponder it. If you
dont care, maybe you need to read this cover story. Or
maybe you dont.
Awareness of the poisoning of the artery that flows
through Indias heart and provides succor to the
inhabitants of the Indo-Gangetic plain, as she
LETTER FROM THE EDITOR
MAA GANGA WILL
TEST MODIS
LEADERSHIP
INDERJIT BADHWAR
o
I thought how lovely and how strange a river is. A river is a river, always there,
and yet the water flowing through it is never the same water and is never still. Its
always changing and is always on the move. And over time the river itself changes
too. It widens and deepens as it rubs and scours, gnaws and kneads, eats and bores
its way through the land. Even the greatest riversthe Nile and the Ganges, the
Yangtze and the Mississippi, the Amazon and the great grey-green greasy Limpopo
all set about with fever treesmust have been no more than trickles and flickering
streams before they grew into mighty rivers.
Do I change like a river, widening and deepening, eddying back on myself
sometimes, bursting my banks sometimes when theres too much water, too much
life in me, and sometimes dried up from lack of rain? Will the I that is me grow and
widen and deepen? Or will I stagnate and become an arid riverbed? Will I allow
people to dam me up and confine me to the wall so that I flow only where they
want? Will I allow them to turn me into a canal to use for their own purposes?
Or will I make sure I flow freely, coursing my way through the land and ploughing
a valley of my own?
Aidan Chambers, This is All: The Pillow Book of Cordelia Kenn
3
INDIA LEGAL September 15, 2014
LETTER FROM THE EDITOR
journeys tortuously to the Bay of Bengal to merge into
the Indian Ocean, is nothing new. She shares her
bounty with 40 percent of Indias populationabout
500 million souls living in 11 states. Her decline was
first noticed in 1854 when the British first built the
Haridwar Dam and hastened as we poisoned,
despoiled and raped her with the kind of banality that
is the ultimate root of all evil.
The issue of the environmental desecration of the
Ganga, hastened by climate change in which the
Gangotri Glacier has been receding for the last 30
years, cannot be repeated often enough for the sad
and simple reason that the civilization which she nur-
turedand civilizations are known to be born and
disappear as rivers vanish or change coursedoes not
see this as an issue. Notwithstanding all the Ganga
Bachao movementsGanga Seva Abhiyanam, Pune-
based National Womens Organization (NWO) and
Ganga Calling-Save Ganga, supported by Indian
Council for Enviro-Legal Action (ICELA)saving the
Ganges is not a national issue.
I repeat, I cannot repeat this often enough. As a
newsperson, I hold my own profession guilty for not
raising the issue ad nauseam, ad infinitum. Ignoring it
and, instead, ostrich-like burying our heads into
repeat stories on Bebos Bollywood love affairs, is not
going to make the problem disappear. The subject is
on par with drilling climate change problems into our
mindsstarting with our toddlers, just as we brain-
wash them on subjects like caste and superstitious
bafflegabor the necessity of combating Aids or the
campaign to eliminate smallpox, malaria or TB. We
Gomukh
Gangotri
Tehri
Devprayag
Rishikesh
Haridwar
Garhmukteshwar
Bithoor
Kanpur
Allahabad
Varanasi
Patna
4
September 15, 2014
visage of Vajpayees Golden Quadrilateral highway
scheme, and the no-nonsense, goal-oriented Sree-
dharan was the face of Delhis proudest achievement
since construction of the Red Fortthe Metrofor
which he should have been given the Bharat Ratna?
Even if Modi does nothing else in his first term but
simply cleans up the Ganges or even a part of it, India
will reward him not just with a Bharat Ratna, but the
world will see him not only as a great but also grand
leader. And he will be able to put the shadow of the
2002 riots behind him. In America, in the 1930s dur-
ing the Great Depression, President Franklin Roose-
velt created brigades of workers nationwide, who were
given regular wages to create parks, restore monu-
ments and perform public works. Through these proj-
ects, the alienated American youth became stakehold-
ers in the American dream and were able to make a
living in a shattered economy.
Modis thinking on the Ganga is correct. But he
must think out-of-the-box. Why cant he take a page
out of Roosevelts book and create paid brigades of
youth workers, including unemployed Muslim youths
(Governor Jagmohan did this successfully in Kash-
mirs Srinagar when he cleaned up the dying Dal
Lake) and create Clean Ganga Brigades under a spe-
cial dispensation headed by a honest figure?
As a measure of demonstrating the new regimes
commitment to accountability, Modi should also set
up a special inquiry commission with a time-bound
period to investigate why the `20,000 crore already
spent by previous regimes on the Ganga Action Plan
produced no result, who siphoned off the money, and
track down the fraud and mismanagement and rec-
ommend prosecution of the guilty.
Thats what leadership is all about, and the people
expect nothing less than that from Modi and they will
back him as he brings the Ganges back into national
focus. Cleaning up the Ganges symbolizes everything
to be destroyed: Poverty, filth, human degradation,
sloth, corruption, communal passions. And there is a
lot to be preserved: poetry, philosophy, universities,
artists, singers, loud raucous laughter, rock-hewn
temples, countless masjids, from where muezzins call
out above the ring of rickshaw bells, and the morning
and evening aartiscling-cling-ding-ding-clap-clap.
(The lead story that appears on page 20 is writer
Rashme Sehgals live follow-up report on whether
current schemes to clean the Ganges under the new
budgetary allocation will work)
editor@indialegalonline.com
should repeat the Clean Ganga Mantra, as we do the
Gayatri Mantra, or Bismillah ir-Rahman ir-Rahim till
our heads swim.
As penitence, as would probably be decreed by a
vengeful god, we should be punished by having our
heads dunked into the filthy waters of the Ganges
until we choke and gurgle for mercy and be given a
breather only under the condition that we will repeat-
edly be similarly submerged or water boarded (in the
lingo of American torturers) unless we join in the
awareness campaign to liberate our life-giving river.
I admit I indulge in passionate hyperbole. But this
is because the only formula for change is revolution,
when all reason has fled or been sacrificed at the altar
of corruption, waste, fraud and neglect. All these have
played a major role in the plunder of the Ganges by
the combined forces of the government and industry.
The formula for change is simple: Either youre
part of the Ganga problem or youre part of the solu-
tion. Theres no miracle involved here. It requires a
tectonic attitudinal mind change; the kind that
occurred when Rachel Carsons book Silent Spring
awakened the world to environmental issues, or the
political will backed by people power that ultimately
led America to clean up the mighty Hudson river, and
England, the Thames. Both waters, which had turned
into sewers, now bubble with marine life.
That is why candidate Narendra Modi was such an
attractive choice as PM for many Indians. He elevated
reviving and cleaning the Ganges to a national politi-
cal platform. It was also the demand of his voters in
Banaras, the city of the gods, now gone stale with the
stench of the river as evening falls on a hot summer
afternoon. The disgusting odor drives out the redo-
lence of incense and deafens us to the gently resonant
tinkling of the evening aarti.
So, Mr Modi allocates another `2,000 crore in his
first budget for the Ganga cleanup. Fine! But wheres
the passion? Wheres the grand design? Wheres the
potent face of the Ganga cleanup as Khanduri was the
Murshidabad
Mayapur
Kolkata
5
INDIA LEGAL September 15, 2014
SEPTEMBER 15, 2014
LEAD
The Ganga disgrace
For centuries, the Ganges purified us of our sins, while we discharged our filth into
it. Now, with Narendra Modi making the river cleaning his governments top
priority, RASHME SEHGAL probes if its a case of too little, too late
20
Legal fraternity joins the issue
VIKAS SINGH, Former Additional Solicitor General, and
SHAILENDRA SINGH, senior advocate, Supreme Court, provide their
perspectives on the scrapping of the collegium system
12
Power sources plugged off
With the Supreme Court declaring all coal block allocations since 1993
illegal, the Indian economy is sure to take a hit, writes VISHWAS KUMAR
Patients agony, doctors apathy
Despite numerous cases of negligence, why do medical professionals
enjoy a certain degree of legal immunity? AKSHAT AGARWAL points out
the changes that are required in the legal framework. Also, a case study on
the landmark case of Dr Kunal Saha, who won `6-crore compensation
14
26
OPINIONS
SUPREME COURT
RIGHTS
VOLUME. VII ISSUE. 25
Editor-in-Chief
Inderjit Badhwar
Managing Editor
Ramesh Menon
Deputy Managing Editor
Shobha John
Senior Editor
Vishwas Kumar
Contributing Editors
Alam Srinivas, Girish Nikam
Associate Editor
Meha Mathur
Deputy Editor
Prabir Biswas
Assistant Editor
Somi Das
Sub-editor
R Parvathy
Art Director
Anthony Lawrence
Senior Visualizer
Amitava Sen
Graphic Designer
Lalit Khitoliya
Photographer
Anil Shakya
News Coordinator
Kh Manglembi Devi
Production
Pawan Kumar Verma
Director (Marketing)
Raju Sarin
GM (Sales & Marketing)
Naveen Tandon-09717121002
DGM (Sales & Marketing)
Feroz Akhtar-09650052100
Marketing Associate
Ggarima Rai
OWNED BY E. N. COMMUNICATIONS PVT. LTD.
NOIDA HEAD OFFICE:
A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309
Phone: +9 1-0120-2471400-432 ; Fax: + 91- 0120-2471411
e-mail: editor@indialegalonline.com
website: www.indialegalonline.com
MUMBAI OFFICE: Arshie Complex, B-3 & B4, Yari Road, Versova,
Andheri, Mumbai-400058
RANCHI OFFICE: House No. 130/C, Vidyalaya Marg, Ashoknagar,
Ranchi-834002.
LUCKNOW OFFICE: First floor, 21/32, A, West View, Tilak Marg,
Hazratganj, Lucknow-226001.
PATNA OFFICE: Sukh Vihar Apartment, West Boring Canal Road, New
Punaichak, Opposite Lalita Hotel, Patna-800023.
ALLAHABAD OFFICE: Leader Press, 9-A, Edmonston Road,
Civil Lines, Allahabad-211 001.
For advertising & subscription queries
sales@indialegalonline.com
Published by Raju Sarin on behalf of E N Communications Pvt Ltd and printed at
CIRRUS GRAPHICS Pvt Ltd., B-61, Sector-67, Noida. (UP)- 201 301 (India)
All rights reserved. Reproduction or translation in any language in whole or in part without permis-
sion is prohibited. Requests for permission should be directed to E N Communications Pvt Ltd .
Opinions of writers in the magazine are not necessarily endorsed by E N Communications Pvt Ltd .
The Publisher assumes no responsibility for the return of unsolicited material or for material lost or
damaged in transit. All correspondence should be addressed to E N Communications Pvt Ltd .
CFO
Anand Raj Singh
VP (HR & General Administration)
Lokesh C Sharma
6
September 15, 2014
44
The big clean-up
operation
A staggering 300 antiquated laws are set to be
weeded out, some of them as old as 150
years. ANITA KATYAL reports
GOVERNANCE
60
Birds on
the brink
RAMESH MENON
decries the negligence,
which has endangered
the existence of our
winged friends
PHOTO ESSAY
54
Grounding
pilots flight
DGCAs new rule of six-month notice period
severely hampers pilots career. SHOBHA JOHN
writes that a similarly strict approach is required to
rein in airlines who dont pay their staff for months
FOCUS
Grave matters
The conflict between Shias and Sunnis is being
played out in Varanasi too, over a few plots of
land. AJAY AGARWAL describes the political
implications of the strife
CONTROVERSY
A L S O
Cover Design: ANTHONY LAWRENCE
40
New
meaning
to freedom
MANYATA DUTT, wife of Sanjay Dutt, writes
that her husbands incarceration has, for the
first time, opened another dimension to life
MY SPACE
58
R
E
G
U
L
A
R
S
Letter from the Editor ............ .........................................................3
Letters..............................................................................................8
Quote-Unquote...............................................................................9
Ringside........................................................................................10
Supreme Court ..................................................................................16
Courts................................................................................................18
Briefs .................................................................................................77
Consumer Corner..............................................................................78
Is That Legal?....................................................................................80
Wordly-wise .......................................................................................81
People ...............................................................................................82
Cover Photograph: ANIL SHAKYA
32
Banks and
bribedom
The arrest of Syndicate Bank CMD and
Bhushan Steel owner exposes the nexus
between big corporate houses and public
sector banks in procuring large loans, which,
in many cases, are never paid back. A report
by VISHWAS KUMAR
CRIME
36
Animal
instincts
Two Kolhapur sisters, sentenced to death
for killing several toddlers, could become
the first women in independent India to be
hanged. RITU GOYAL HARISH writes that a
psychological study should be done of such
criminals to assist in crime prevention
Justice BS Chauhans
land-acquiring spree......48
A transport scam that
never was.......................51
A small-town boys rise as
a brain scientist...............66
Sania Mirzas current great
form...............................68
The US questionable
human rights record......70
Rape cases on American
campuses......................72
Toddlers addiction to
tablet apps....................74
7
INDIA LEGAL September 15, 2014
Please email your letters to:
editor@indialegalonline.com
Or write to us at:
India Legal, ENC Network,
A-9, Sector 68, Gautam Buddh
Nagar, Noida (UP) - 201309
A sham effort
The battle between the executive and the
judiciary (War over Judges, August 31, 2014) is
nothing new. It has been going on ever since
Indira Gandhi was the prime minister. She rode
roughshod over all fair procedures and planted
her own favorites. The collegium period was only
a hiatus when the judges practised the same.
Now, it is the center which is trying to get back
its hold over appointments and transfer of
judges. I am doubtful whether we will get to see
meritorious and scrupulous judges
Mohini Mathur, Delhi
A lax executive
The entire slugfest between the
judiciary and the executive over
death sentences is due to the
inordinate delay by the
president of India in deciding on
mercy petitions (Lord, Have
Mercy, August 2014). This
excessive delay has given a
handle to death convicts to
approach the Supreme Court
and seek commutation to life
sentence. The case of Renuka
Shinde and Seema Gavit is
another example.
Ranjana Thakur, Meerut
A handy tool
I enjoyed reading the story,
Cybermentary! My Dear Watson
in the August 31, 2014, issue.
Sleuths and lawyers need to be
techno-savvy to cull out
unsavory email exchanges. I
would myself take help of the
software tool, Systools
MailXaminer, for unearthing
email information in case of
data leak in my office. Thanks
for keeping me updated.
Ramesh Khanna, Mumbai
LETTERS
www.facebook.com/indialegalmagazine
www.twitter.com/indialegalmag
Interpreting the law
Merely bringing in the new juvenile bill (What is
the Age of Innocence, August 31, 2014) will not
solve the problem. Lowering the age for
juveniles to be treated as adults for heinous
crimes will put enormous pressure on the
judiciary dealing with cases, where children
between 16 and 18 years are involved. It cant
simply go by the law book, but will have to tread
with caution while convicting them. Reasons for
the crime, social background and mental state of
the accused, etc, will need to be
considered as well before the judgment. The new
law will have to stand the test of time.
Saswati Sengputa, Kolkata
Warning signals
Those who swear by Narendra Modis charisma
(Silent PM, August 31, 2014) should take a leaf or
two from the recent outcome of assembly bypolls
in Bihar, Karnataka, Madhya Pradesh and Punjab.
The results have been less than impressive for
the BJP, whose political fortunes are being
steered by Modi. Yes, local factors do play a role
in assembly elections, but one thing is clear: the
Indian electorate is looking for other options if
they look credible. The UP by-elections in 11
assembly constituencies should clear the air.
Raj Shekhar, Gurgaon
8
September 15, 2014
I played a big part in it. I have
corrupted the youth, audience,
and Bollywood!
Emraan Hashmi, on making kissing a
usual affair in Bollywood. Delhi Times
I would be delighted if he could show me what
industrial development projects I missed while
driving through Rajarhat.
Ratan Tata, on West Bengal finance minister Amit Mitras
comment that he was not being properly briefed about
development in the state. Business Standard
"I blame the BCCI for
creating the IPL monster and
pushing their cricketers
towards money rather than
getting them to think about
their technique. I can't see
any Gavaskars, Vengsarkars,
Azharuddins or Tendulkars
being produced by India."
Arjuna Ranatunga, former
captain of Sri Lanka, on India's
series defeat in England.
NDTV Sports
Neither will I take bribe nor
will I allow anyone else to
take bribe.
Prime Minister Narendra Modi,
on corruption during his Jammu
and Kashmir tour. Jagran Post
By killing transparency and
competition, crony capitalism
is harmful to free enterprise,
opportunity and economic
growth.
RBI Governor Raghuram Rajan,
on crony capitalism, reported by
The Economic Times
The RJs should ensure
their language and
content is not
objectionable. Those of
us who are sitting inside
the house should
be respected
Samajwadi Party
MP Jaya Bachchan,
on radio jockeys
making fun of
MPs, India Today
It is not easier to do mass
entertainers. In fact, at some level,
playing to the gallery is more difficult
because there is less conviction in
the character.
Ajay Devgn, reacting to the impression that
he has increasingly moved into commercial
cinema in the last five years. Sunday Express
No other person has won so
many medals at the World
Championships or at other
international events. Womens
boxing in India got popular
because of me.
Boxer Mary Kom, miffed at not being
informed about the last minute
postponement of Asian Games trials in
Patiala. International Business Times
9
INDIA LEGAL September 15, 2014
QUOTE-UNQUOTE
The man who passes the sentence should swing the sword. If you would
take a mans life, you owe it to him to look into his eyes and hear his final
words. And if you cannot bear to do that, then perhaps the man does not
deserve to die.
George RR Martin, A Game of Thrones
VERDICT
10
September 15, 2014
COLUMN/
judicial appointments/shailendra singh
Whatever the brouhaha over the
collegium system, the new judicial
appointments commission will have
to prove its efficacy
O
UT of chaos comes order. The recent passing of
the Judicial Appointments Bill 2014 in parlia-
ment was one such upheaval. But why did it
evoke such strong passions? What did it
replace? Here is a lowdown on the issue.
The bill replaced the collegium system for appointment of
judges to the higher judiciary. The collegium system had a five-
member committee, which included the chief justice of India
(CJI) and four seniormost judges of the Supreme Court (SC).
However, it had no constitutional validity.
The system has been full of controversy and criticized by
the executive as it vests too much power with the judiciary.
Senior judges are appointed by the collegium and the executive
can only ask it to reconsider a recommendation. It also
received a lot of flak for its vagueness and unaccountability
and charged with nepotism as critics felt it ignored meritori-
ous candidates. Some of its critics included the Law
Commission of India chairman, Justice AP Shah, and senior
Supreme Court lawyer Harish Salve.
However, CJI RM Lodha said he was the first batch of
judges from the system while Justice Nariman was the last. If
the collegium has failed, then its products (the judges) too are
failures and the judiciary as a whole has failed the country,
Heres the
LOWDOWN
Lodha retorted. As an institution, the collegium had its limi-
tations in selecting persons. After all, judges too come from
the same society. But to carry on a campaign just because of
allegations against one or two judges is unfair, he stated.
What does the constitution say about it? Article 124 says
that the president has the right to appoint Supreme Court
judges after consulting with the CJI and other SC judges.
Similarly, Article 217 says the president has the right to
appoint high court judges after consultation with the CJI and
the governor of the state.
But various governments wanted to do away with the col-
legium system. Finally, the Judicial Appointments Bill was
passed in parliament. According to the bill, a six-member
Judicial Appointments Commission will recommend the
president on the appointment and transfer of judges. These
include the CJI, the law and justice minister, two seniormost
judges of SC and two eminent persons. Critics, however, say
there is greater scope for politicians to interfere in judicial
appointments now. This will compromise the entire judicial
delivery system. One hopes fair play and justice will prevail.
The author is an advocate in
Supreme Court and Delhi High Court
IL
UNI RAJEEV TYAGI
12
September 15, 2014
IL
while the judges-appointing-judges
system has belied expectations,
scrapping it is not the answer
COLUMN/
judicial appointments/vikas singh
T
HIS is a crucial juncture for the Indian judiciary,
when the present executive is keen to do away
with the collegium system by bringing in the
National Judicial Appointments Commission Bill
2014. The basis for bringing in the bill is the wide-
ly-held perception that the collegium system has failed.
While I also feel the collegium system has not lived up to the
expectations of the people of this country, replacing it with the
National Judicial Appointments Commission Bill is not an
answer.
As the head of the Indian judicial family, the chief justice of
India can take certain important pre-emptive steps, which will
completely thwart the initiative of the government to abolish
the collegium system.
The need of the hour is to understand whether the collegium
system is the right one or not and then separately consider the
reason why it has failed in India.
In my view, the system is perfect for the independence of the
Indian judiciary but the way it is being operated at the moment
leaves a lot to be desired. Urgent steps are required to be taken
to ensure the proper working of the existing system.
In my view, the shortcomings of the present system are: (1)
lack of credibility in the shortlisting of candidates; (2) lack of
objectivity in making a comparative analysis; (3) bias or nepo-
tism in the actual selection; and (4) delay in filling up the
vacancies.
According to me, immediate steps need to be taken in the
appointment of judges to the higher judiciary, and these, inter
alia, should ensure the system meets the aspirations of the peo-
ple of India and is able to thwart criticism from any quarter.
The collegium at the high court should invite names from the
bar associations as well as from the state government.
The collegium should provide for certain basic eligibility cri-
teria like the minimum age, minimum return of income, etc. for
any person to be considered for appointment as a judge of the
high court.
Not all is bad with
COLLEGIUM
All the names before the collegium should be referred to a
select panel of two eminent lawyers of the said high court who
shall rate the names on the question of integrity as well as pro-
fessional competence and any other criteria which may be
required by the said panel to rate the names.
If the direct junior or a relative of any of the member of the
collegium is on the list being considered for appointment, the
said member of the collegium should be asked to recuse him-
self and the next junior judge should be opted by the collegium.
The collegium should consider each and every name before it
and then decide the most suitable for appointment as a judge
of the high court.
The system should provide that for any vacancy that is to
come up in the next three months, the collegium should rec-
ommend the names at least two months in advance so that the
notification for such appointment is ready on the date of the
retirement of the judge and there is no vacancy of any judge in
any high court for even a single day.
In so far as the promotion from the lower judiciary is con-
cerned, there should be no quota fixed for them and the col-
legium should appoint only such persons who meet the basic
benchmark as fixed by the collegium for appointment as a
judge of the high court. Seniority amongst the additional
judges should be a criterion for elevation to the high court but
it should have very little weightage in the appointment.
A
s far as appointment to the Supreme Court is con-
cerned, the five-judge collegium of the apex court
should also take assistance of an eminent lawyers
panel constituted by it to consider the names of the judges of
the high court as well as the name of any member of the Bar by
rating the candidates on such criteria as the collegium system
would want the panel to so rate them.
In the appointment to the Supreme Court, regional repre-
sentation should only be a guiding factor for appointment and
merit and unimpeachable integrity should be the main criteria
for appointment to the highest court of the land.
According to me, immediate steps should be taken by the
Supreme Court to reinvent the collegium system. This will help
restore the faith of the people of this country in the system. The
initiative will also ensure there is no attempt by the govern-
ment to interfere in the matter of appointment of judges.
I strongly feel that adding the law minister in the collegium
system is only going to worsen things.
I have a lot of expectations from the present Chief Justice of
India RM Lodha. In his short tenure, he has been able to send
the message across about maintaining the independence of the
judiciary, much more strongly.
The author is a senior advocate of Supreme Court and
former additional solicitor general of India
13
INDIA LEGAL September 15, 2014
will the scs decision declaring all
allocations between 1993 and
2010 illegal deal a body blow to
the economy?
By Vishwas Kumar
SUPREME COURT/
coal allocations
P
RIME Minister Narendra Modi faced his
first major economic challenge on Aug-
ust 25. Thats when the Supreme Court
(SC) declared all coal block allocations
made by the government of India (GOI)
between 1993 and 2010 illegal. This will have major
ramifications on coal supply, vital for the production
of power and steel, needed for a resurgent economy.
A bench, comprising Chief Justice RM Lodha,
Justices Madan Lokur and Kurian Joseph, said it
would appoint a high-level committee of retired
judges to identify those companies who would be
affected by its order. On its next hearing on Sep-
tember 1, 2014, the bench will create a committee to
identify those whose allocations will be cancelled. It
will also address the route through which these allo-
cations may be made in future.
The SC said: All (coal) allocations were done in an
illegal manner and suffer from the vice of arbitrari-
ness. It added that no objective criteria were followed
Digging
the dirt
14
September 15, 2014
and guidelines were breached in these alloca-
tions. The coal block allocation done by a
screening committee was not fair and trans-
parent, it added.
All allocations, done in all 35 meetings of
the committee, were ad hoc, casual and
hence, unfair, it said. While 194 allocations
were made through the screening committee,
36 went through the government dispensa-
tion route. These coal blocks were allotted to
private companies, mainly in Jharkhand,
Chhattisgarh, Maharashtra, West Bengal,
Odisha and Madhya Pradesh.
HUMUNGOUS LOSS
Incidentally, the scam came to light when the
Comptroller and Auditor General (CAG)
tabled a report in parliament in 2012, which
said the governments decision to not auction
194 coal blocks resulted in a huge loss to the
THERE will be many nervous
people on September 15. Thats
when former CAG Vinod Rais new
book Not Just an Accountant is
scheduled for release. It is touted to
be the mother of all tell-tale books
and would acutely embarrass
former PM, Dr Manmohan Singh.
CAGs audit reports on the 2G
spectrum scam (`1.76 lakh crore)
and the coal scam (`1.86 lakh
crore), were dubbed by opposition
political parties, including the BJP,
as the mother of all scams. Both
scams occurred during the 10 year
rule of the Congress-led UPA
government.
Rais book has alleged that UPA
functionaries deputed politicians to
get him to leave out names from
the auditors reports on Coalgate
and Commonwealth Games scams.
Rai did not reveal the names of the delegates. But according
to BJP leader Subramanian Swamy, the four persons whose
names were not included in the CAG report are: Congress
Chief Sonia Gandhis political aide Ahmed Patel, Congress
treasurer Motilal Vora, Singhs principal secretary Pulok
Chatterjee and advisor TKA Nair.
Rai told a news channel: The book
will have details of how the ex-PM
succumbed to what he himself once
described as compulsions of coalition
politics. Everything cannot be sacrificed
only to remain in power. Governance
cannot be sacrificed at the altar of
compulsion of coalition politics.
For Singh, this couldnt have come at
a worse time. Already, two books have
been critical of Singhs leadershipone
by his media advisor, Sanjaya Baru, and
the other by ex-coal secretary,
PC Parakh. Both books are already
bestsellers.
Congressmen are playing down
Rais allegations. Former I&B minister
Manish Tewari termed his remarks as
the latest bout of his sensationalism
and told a channel that sensationalism
has been a staple of the former CAG.
He also questioned why Rai did not
bring these allegations to public notice while he was in office
and dared him to an open debate on the Coalgate and
Commonwealth scams.
The BJP, on the other hand, wants Rai to disclose the
name of UPA politicians who asked him to tamper with
the Coalgate reports.
public exchequer. At first, the loss was
pegged at `10 lakh crore, but was brought
down to `1.86 lakh crore.
While competitive bidding for coal blocks
was recommended in 2004, the government
never used this route and instead allocated
the blocks through recommendations made
by state governments and politicians to a
screening committee. Many companies got
undue benefits due to coal blocks allocated to
them for captive use.
Of the 194 blocks allotted, in 15, private
players did not even start production till
2011. The CAG report mentions various com-
panies which benefited from allocations
without bidding during 2004-2006: Tatas,
Jindals, Essar, Abhijeet, Laxmi Mittals
Arcelor and Vedanta.
The number of people who had their
hands in the till is truly shocking.
Hot Potato
15
INDIA LEGAL September 15, 2014
IL
SUPREME COURT
E
ven as the Modi
g o v e r n me n t
mulls over brin-
ging in more stringent
legal provisions to curb
tobacco consumption, a
PIL in the Supreme
Court pointed out that
an amount of `30,000
crore was spent annually on curing illnesses from tobacco
use. Arguing that the money squandered was around 25
percent of the countrys public health spending, the peti-
tion sought a total ban on cigarettes and beedis and wanted
harsher punishment for smokers. It also cited a spike in
deaths related to tobacco.
When the three-judge bench said the onus lay on the
legislature to frame laws against tobacco consumption, the
counsel for the petitioner reminded that it was only after
an apex court order in 2001 that parliament had passed the
Cigarettes and Other Tobacco Products Act in 2003, put-
ting restrictions on tobacco products. But the act wasnt
implemented properly, the PIL said. The bench asked the
center and the states to respond to the PIL.
I
t has been 67 years since India attained freedom
from the British yoke, but English remains the
official language for all proceedings in the higher
judiciary. In fact, Article 348 of the constitution man-
dates so.
A PIL sought that the Supreme Court ask the center
to make changes in Article 348 so that Hindithe
rashtra bhashabecomes the official language for all
the proceedings in the apex court and high courts. It
said that the British legacy should be done away with.
The apex court, while taking up the petition, asked the
center to respond on the issue.
Batting for Hindi
New law for
cheque-bouncing
D
ragging a person to court for the offense of cheque
bouncing will now be an onerous task, as the Supreme
Court has altered the basic rule under Section 138 of the
Negotiable Instruments Act. Henceforth, a case for cheque boun-
cing due to inadequate funds must be initiated only at the place of
the drawee bank branch.
It may not be too difficult for a person to start prosecution at the
bank branch of the place where he stays, but the process will entail
considerable time and money for someone who receives a cheque
from a distant place, and it gets bounced. Already lakhs of cheque
bouncing cases have piled up in courts, and the new law will lead
to mass inter-state transfer of such cases.
Aware that the judgment will create problems, a three-judge
bench of the apex court said that the new law will not apply to
cases where summons have already been issued to the accused
and recording of evidence has begun.
Call for
tobacco ban
Illustrations: Aruna
16
September 15, 2014
THIS is an issue that has tormented would-be mothers in
India for years, thanks to an archaic law. But now there is
hope, as the Supreme Court has decided to look into the
issue. A PIL filed in the apex court condemned the Medical
Termination of Pregnancy (MTP) Act, 1971, for imposing a
20-week cap on abortion and said that it infringed upon
the rights to equality, health and life of women. The PIL
wanted the legal limit for abortion increased to 28 weeks.
It clarified that with rapid advances in medical science, the
foetus could be removed at any stage without threat to a
pregnant mothers health. The court referred the matter to
the center, enquiring if any fundamental law was being
breached by carrying out MTP, and listed the final hearing
for November.
EVEN as the Congress is trying to get its house in order
after the Lok Sabha defeat, the foreign funding issue in the
elections haunts it. The partys plea against the Delhi High
Court judgment holding the Congress and BJP prima facie
guilty of flouting laws under Foreign Contribution
(Regulation) Act (FCRA) was rejected by the apex court.
The Supreme Court instead issued notice to the center
and the election commission to respond to the matter with-
in eight weeks after observing that FCRA needed to be
interpreted properly. The only respite for the Congress: It
could approach the apex court in case any coercive action
was taken following the high court order. The Congress and
BJP were pronounced guilty by the Delhi High Court on
March 28 for receiving donations from the subsidiaries of
the UK-based Vedanta Resources Plc.
T
he apex court takes up an ava-
lanche of petitions from different
parties every day, but what if it has
to look into a PIL requesting that the SC
look into its own rule book?
The Supreme Court Bar Association
(SCBA) appealed to the apex court that
the New Supreme Court Rules, 2013,
should not be implemented with effect
from August 19 as it was not consulted
while framing them. It wanted the court to
enter into an effective and meaningful
discussion with the SCBA. It also pointed
out that some changes in the Supreme
Court Rules, 1966, had taken away the
fundamental rights of the SCBA. The rules
should not be enforced till the outcome of
the petition, SCBA said.
A two-judge bench deferred the hearing
for September 5.
Right to abort
EXPRESSING total confidence in the Gujarat governments
ability to provide justice, the Supreme Court dismissed a PIL
filed by suspended IAS officer Pradeep Sharma, seeking
transfer of cases against him from the Gujarat police to the
CBI. The counsel for Sharma alleged that the state govern-
ment was victimizing his client as his elder brother, a senior
Gujarat cadre IPS officer, did not kowtow to the state govern-
ments line in several cases.
The Gujarat government had charged Sharma for financial
bungling and started a probe. He was also slapped criminal
charges in 2008 for his complicity in a land scam.
The apex court found no basis in Sharmas contention and
refused to intervene. It also rejected his appeal for a probe
against the Gujarat government for keeping him and a lady
under surveillance in the Snoopgate controversy.
In favour of Gujarat
Congress gets reprieve on funding
Questioning
unto itself
17
INDIA LEGAL September 15, 2014
COURTS
I
n a crucial move to empow-
er women, a full bench of
the Bombay High Court
(HC) held that daughters were
entitled to equal rights in ances-
tral property. Previously, the
Hindu Succession Act of 1956
did not give equal rights in
ancestral property to daughters.
This changed, when Section 6 of
the act was amended in Sept-
ember 2005. According to the
amendment, only daughters
born after September 9 , 2005,
were entitled to the rights.
However, the HC dismissed the
dispute of daughters being born
before or after the aforesaid
date and said, their being alive
to claim the right was more
important.
Justice served
after 38 years
Illustrations: Aruna
T
he Delhi High Court
convicted two Anand
Margis and upheld
their 10-year jail term for a
1975 assassination attempt on
the then Chief Justice of India
(CJI) AN Ray.
Santosh Anand Avdhoot
and Sudevanand Avdhoot were
convicted 38 years after the
criminal appeals were filed in
the court. However, Rajan
Dwivedi, the third convict, who
was charged with conspiring
with the two to kill the CJI, was
set free. Appeal against the
trial courts judgment was filed
in the high court in 1976 but
the hearing commenced only
in 2006, after a lapse of three
decades.
Court advocates
womens right
T
alk about being ungrateful. In
a poignant case, the Allahabad
High Court pulled up a woman
for not looking after her sister and
mother after her fathers death, des-
pite the government helping her out in
her time of need.
It all started on November 24,
2005, when the father of the girls died
in harness while working for a power
corporation. On compassionate grou-
nds, one of the sisters was given a job
there in 2006. She later married and
started living separately and conve-
niently forgot her widowed mother
and her unmarried, unemployed sis-
ter. This, despite Uttar Pradesh
recruitment rules of 1974 saying: It is
incumbent upon the person being
appointed under the dying in harness
rules to maintain the other family
members, failing which such person
can be preceded under the UP
Government Servant (Discipline and
Appeal) Rules 1999. The rules clearly
state that such a persons services can
be terminated.
This sister then filed a counter affi-
davit, stating that she was prepared to
maintain the petitioners (mother and
sister), but as she had two minor chil-
dren, it would not be possible to pay
50 percent of her wages, as she was a
Class-IV employee.
But in a verdict proclaimed by
Justice Suneet Kumar on August 8,
2014, she was told in clear terms that
the job was given to enable the family
of the deceased employee to tide over
the sudden crisis resulting from the
death of the bread-earner. Such
appointments are made purely on
humanitarian consideration... it is not
a source of recruitment, the court
said. The court ruled that a monthly
sum of `5,000 would be paid to the
mother from this sisters salary.
Where is your duty?
18
September 15, 2014
A morbid river
runs through it
the modi government has shown intent in cleaning up and
conserving the river a with high budgetary allocation. but is it
too little too late?
By Rashme Sehgal in Varanasi
LEAD/
polluted ganga
20
September 15, 2014
TALL ORDER
The task of cleaning up
the Ganga is daunting
and the government will
face myriad and
complex issues once it
gets on to the job
G
anga, Indias holiest
river, is the recipient of
financial munificence
from the NDA govern-
ment. When the BJP
prime ministerial can-
didate Narendra Modi
said in May: Ma Ganga aur Benaras se mera
rishta purana hai, little did the inhabitants of
Varanasi realize how much the governments
purse strings would be opened to save the
river. But `20,000 crore has already been
spent on various clean-up projects of the river,
with little to show for it.
Further, in this budget, finance minister
Arun Jaitley set aside over `2,000 crore to
help set up the Integrated Ganga Conser-
vation Mission, called Namai Gange.
Another `100 crore has been allocated for
developing ghats and beautifying the river-
front in a slew of cities, including Kedarnath,
Haridwar, Kanpur, Varanasi, Allahabad and
Patna. And under the Clean Ganga Mission,
six new sewage treatment plants will come up
in Allahabad (Uttar Pradesh), Beur, Karmali-
chak and Saidpur (Bihar) and Budge Budge
and Barrackpore (West Bengal) at a whop-
ping cost of `1,058 crore.
DEADLY COCKTAIL
But would this amount be enough to clean the
highly polluted and noxious river? Experts say
it is just a drop in the ocean. According to a
2013 Central Pollution Control Board (CPCB)
report, the amount of sewage deposited in the
river is 2,723 million liters per day (mld).
Some experts claim it is actually 5,000 mld.
Combine this with over 800 polluting indus-
triestanneries, sugar, pulp, paper and
chemicalswhich spew toxic effluents into
the river and what you get is a deadly cocktail
of poison, stretching all the way from
Gaumukh to the Bay of Bengal.
So, how will the Ganga be cleaned? Manoj
Misra of the Yamuna Jiye Abhiyaan along
with other environmentalists put together
five key points to help restore the river to its
original glory. Misra says: The river and
21
INDIA LEGAL September 15, 2014
trickle? In Varanasi alone, a large numbers of
houses and parks are being developed along
the river bankfrom Rajghat to Ramnager
and up to Assi Ghatreducing the width to
half its size. Moreover, dams have reduced the
water flow, he laments.
WATER FIT FOR DEATH
The water quality of the Ganga is extremely
bad. Varanasi-based Dr Hemant Gupta, a
gastroenterologist and endoscopist, revealed
that patients are spending up to `15,000 a
day on medicines but are still to be cured. A
number of diseases have been triggered off by
drinking impure water. If this is not the
equivalent of a super bug, then what is? But
when I went public with this disclosure, med-
ical authorities denied it, he claims.
Gupta, along with Panchganga Found-
ation, a group of Varanasi citizens working to
revive the Ganga and its tributaries, tested the
water recently at 18 ghats. The study threw up
shocking impurity levels: the bacterial count
sewer must never meet. Modi needs to ensure
that water withdrawn from the river should
never go back into it. Gangas tributaries need
to be given equal importance.
Environmental lawyer Ritwick Datta has
called for the creation of a river regulation
zone, along the lines of a coastal regulation
zone, to help end encroachments along the
river bank. Professor Vikram Soni of Jamia
Millia Islamia says Modi needs to come up
with a strong legislation to ensure that indus-
trial units do not discharge effluents into the
river. Effluents must be brought to second
recycling levels before flowing into the river,
he maintains.
Dr BD Tripathi, environmental scientist at
the Benaras Hindu University (BHU) and a
member of the National Ganga River Basin
Authority, believes that efforts will bear fruit
only if the rivers ecological flow is main-
tained. But how can this be done when a
huge quantum of water is being diverted for
irrigation, thereby reducing the Ganga to a
Are Gangas problems intractable?
We have to understand the river in a
holistic manner. It emanates from the
Himalayas, which comprise largely of
sedimentary rocks. These are inherently
weak and only suitable for constructing
micro-dams. Construction of large dams
has seen a direct increase in landslides
and I have been warning successive
governments about this. Also, the larger
the landslides, the more impure the water
quality becomes.
Does that mean water in Tehri Dam,
which provides drinking water to
large parts of Uttarakhand and NCR,
is not pure?
In Tehri Dam, the storage of dead water is
400 meters, while live storage is 200
meters. Water in the lower portion of the
reservoir, which does not get circulated, is
known as dead storage. Both organic and
inorganic matter gets deposited here. The
ions of these elements increase water
density, resulting in contamination of the
reservoir. This also causes a tremendous
increase in pressure. This impure water
creates major drinking water problems for
villagers living downstream.
What is the relationship between
large dams and landslides?
When the reservoir in large dams is full,
voids in the rock are saturated with water.
When water is released by the dam, water
inside the pores comes out with increasing
pressure. In the Uttarakhand floods of
2013, heavy landslides enhanced the drag
forces, which in turn increased water
velocity. Micro-dams are the right solution.
They help generate 3,000 MW of electricity,
apart from ensuring regular flow in the river.
So the situation in the river has been
steadily deteriorating?
It is a dying river and we are to blame for it.
BOD (Biochemical Oxygen Demand) levels
have gone up from 5-8 million liters in
1985 to the present 12-15 million liters and
the oxygen content has come down from
7 million liters to 4 million liters.
Not a single person from the river
engineering side has been consulted
regarding work being done on the
Himalayan rivers. `20,000 crore has been
How should the Ganga be cleaned? That is the question
vexing eight IITs, which have prepared a comprehensive
Ganga River Basin Management Plan, and river engineers
led by Professor UK Choudhary, the head of the MM
Institute of Technology for Ganga Management. Opposed to
the centers decision to hand over the management of
Ganga to IITs, Choudhary says his institute is better
equipped. Excerpts from an interview with Rashme Sehgal:
Quacks, not doctors, spoiled
Ganga project
22
September 15, 2014
LEAD/
polluted ganga
at Shivala Ghat was 6.75 lakh/100 million
liters, at Chowki Ghat it was 8.7 lakh/100 mil-
lion liters, at Trilochan Ghat it was 8.5 lakh/
100 million liters, while at Dasaswamedh
Ghat it was 6.71 lakh/100 million liters. The
scenario was worst at Kanpur, with bacterial
levels in its ghats ranging from 12-14
lakh/100 million liters.
The pathogenic micro-organisms found
in the river included strains of aeromonas,
salmonella and shigella sonnei. Other bacte-
ria included E-coli, citrobacter, klebsiella,
proteus, providential and enterobacter. These
were even showing multi-drug resistance, a
dangerous sign, warns Gupta. These bacteria
can cause various diseases, such as sep-
ticemia, meningitis, fever, kidney complica-
tions, to name a few.
Even the tributaries of the Ganga are pol-
luted. Studies conducted by Pantnagar
University highlight the rapid deterioration of
ground and surface water in Ramganga and
other tributaries after SEZs were set up in
CORE ISSUE
Dams along the Ganga in
the hilly regions have led
to landslides and
polluted the river
spent on the Ganga project by people who
are little more than quacks. IIT engineers
only know how to deal with static water
bodies as opposed to dynamic water
bodies. River engineers understand the
origins of a river, its function in the
mountains, why its quality is
deteriorating.... They understand the kind
of action and reaction that takes place
between water, rocks and air; how
atmosphere, temperature and pressure
along with rainfall are getting affected by
dams. The environmental conditions in
these areas have been altered and yet,
none of the reports brought out by IITs
highlight these factors.
We are presently withdrawing 10,400
cumex (cubic feet per second) of water
from the river. While 6,200 cumex is being
withdrawn from the western Ganga, 420
cumex of drinking water is being supplied
to Delhi. When I was a member of the Tehri
Dam committee, I had expressed my
reservations about water being carried
such long distances to the capital. If water
levels keep decreasing, the Ganga will
never be cleaned or rejuvenated. The river
needs a minimum level of velocity, but if
this keeps declining, pollution levels will
keep increasing. Less velocity means more
meandering and more sedimentation
and erosion.
What about sewage
treatment plants
(STPs) and industrial
effluents?
The STPs in Varanasi are
not properly located. They
should have been on the
sand bed side, which is
the convex side. But
theyre on the concave
side, which is where
villages and towns are
located. The convex side is the north,
south and east of Varanasi and total
pollution levels could have been
transferred using the law of gravity. I had
proposed the theory of three gradients way
back in 1995. But it was rejected by the
Central Pollution Control Board because
they claimed it would choke the sand bed.
But the sand bed is permeable. If you do
not understand river dynamics, all your
attempts are simply going to go down
the drain.
Are you happy with the `2000 crore
allocated for Ganga cleaning by the
Modi government?
They first need to change their
technological inputs. They need to develop
smaller dams with a height of 4-5 feet so
that there is no deterioration in water
quality. These dams can be built at a
distance of 100-kilometer intervals. If you
build three such barrages, you have still
ensured a flow of 70 percent as opposed
to the 5 percent flow today. Your irrigation
potential remains the same and the river
flow is also constant. Unless experts are
brought in to provide expertise, there will
be no river left in the years to come.
DAM OF
CONTENTION
The water in
Tehri reservoir
has been
contaminated
over the years
23
INDIA LEGAL September 15, 2014
UNI
Udham Singh Nagar district after the forma-
tion of Uttarakhand.
POWERFUL LOBBIES
Col (retd) Pramod Sharma, who heads the ex-
servicemens association in Udham Singh
Nagar, claims: Leading industrial houses,
such as Tata, Ashok Leyland, Birlas and Bajaj
have set up industries here. They have efflu-
ent treatment plants, but do not run them in
order to maximize profits.
A corrupt local bureaucracy has turned a
blind eye to these goings-on, resulting in the
steady deterioration of our water quality. Our
organization consisting of ex-servicemen,
farmers and children of freedom fighters is
fighting for this cause but has little impact as
strong lobbies work against us.
Sadly, this is the sorry state of affairs all
over India. A recent UN report ranked Indias
water quality as 120th among 122 nations. If
that was not damning enough, a World
Resources Report warned that 70 per cent of
Indias water supply was polluted by untreat-
Cleaning up the Ganga
caught the attention of the
Supreme Court recently.
The countrys highest court
felt that the Center was
taking no initiative to make
the river pollution-free. It
observed that while the
government showed
earnestness on all other
issues, there seemed to be
no plan of action for the
Ganga. While casting
doubts on the governments
intention to fulfil its poll
promise related to the
Ganga, the apex court
asked it to submit a
plan of action by
September 3, 2014.
Even as the Union
government was caught
scrambling to unveil a
concrete blueprint,
Union Minister for Water
Resources, River
Development and Ganga
Rejuvenation Uma Bharati
reiterated that cleaning up
the river was indeed a top
priority for the government.
Claiming that her ministry
had set 2017 as the
deadline for the mission,
Bharati stated that her
ministry would free the river
of most of its pollution and
ensure that at least one
stream of the Ganga flows
uninterrupted.
The minister backed up
her promise by informing
that with 2015-16 being
slated as water
conservation year, there
will be a significant leg-up
in its efforts to cleanse
the Ganga.
However, the
governments intention,
vision and action will
become clear once its
submits the roadmap to
the apex court.
Still caught
napping
ed sewage. Already, salinity, iron, fluoride and
arsenic have adversely affected groundwater
resources across 200 districts, and 18 major
rivers are polluted. Water activist Rajinder
Singh says: The Ganga and Yamuna provide
water to 700 million Indians, all of whom are
reconciled to inadequate and incompetent
management of our water resources.
Attempts to cleanse the Ganga go back to
the late prime minister Rajiv Gandhi's `1,700
crore Ganga Action Plan. Many activists have
been at the forefront to clean up the river,
including Mahant Virbhadra Mishra, profes-
sor of hydraulics at BHU, and IIT professor
GD Aggarwal, who even went on a fast-unto-
death in 2013 to commit the government to
a cleanup.
Has any person, official or engineer, been
made accountable for the failure of the Ganga
Action Plan? Crores of rupees have been
poured into these schemes without any
accountability, points out Aggarwal.
Its time this sacred river is accorded the
respect it deserves.
WILL GANGA SURVIVE?
Water from the biggest
drain in Kanpur, Sisamau,
entering Ganga with
all its pollutants. The
sight and smell here is
nauseating
24
September 15, 2014
IL
LEAD/
polluted ganga
NO
HOLDS
BARRED
N
D
IA
E
G
A
L
E
L
STORIES THAT COUNT
Markandey Katju: The story behind the accusation
August 15, 2014
`100
www.indialegalonline.com
N
I
Invitation Price
`50
Has post-Modi majoritarianism made this
powerful Indian community more insecure?
Why Ukraine and Gaza matter to you
top cops admit victimization are indians ocking to isiI jehad?
poIice station reaches out to minorities
ALSO
Badaun Rape: Covering Up
for Whom?
Dhoti, Kapada aur CIub AssauIt on NGOs Amway or Scamway?
R
N
I N
o. U
PEN
G
/2007/25763
D
ISTR
U
STIN
G
M
U
SLIM
S
EDITORIAL
Retired Supreme Court judges ouL Lho Iaw
N
D
IA
E
G
A
L
E
L
STORIES THAT COUNT
Ramesh Menons
account of Modis war room
JULY 31, 2014
`100
www.indialegalonline.com
N
I
Invitation Price
`
5
0
Budget 2014 is a smorgasbord of snackssmall
feel-good sopsrather than the much awaited
feast of radical measures for national
economic reconstruction
BUT W
HERES
THE MAIN DISH?
HERES
JAITLEYS GUJARATI THALI
NN
DD
IA
EE
N
gas
r th
eas
eco
HH
IN
H
UJA UJA
NNNNNNNN
DDD
IA
EEE
N
Budget 2014 is a smorga
feel-good sopsrather
feast of radical me
economic rec
BUT W
H
BUT W
H
TTHE MAIN
BUUUUTTT WWW
H
JAITLEYS GU
JAITLEYS GUJ
`
1
0
0
crore
tribal w
elfare
`70crore
per smart city
`100crore
madrasas uplift
`100crore
dalit startups
`100crore
kashmiri migrants
`100crore
young India
leadership
program
HOW SUGAR BARONS AND POLITICIANS CON THE PUBLIC
SWEETHEART DEALS
Sonia-Rahul and the
National Herald scam
EXCLUSIVE
Harrowing saga of 10
stranded Indians on an
oil tanker off Sharjah
THE LAW
Executive-judiciary
relations nosedive
Your birthright to adopt
Stopping Uncle Sams
snooping on the world
PROBE
Diamond merchants
`1,300 crore bank heist
R
N
I N
o . U
P E N
G
/ 2 0 0 7 / 2 5 7 6 3
NDIA EGAL E
L
STORIES THAT COUNT
August 31, 2014 `100
www.indialegalonline.com
N
I
Who shot the collegium? Sex and the judge
wwwindi
Phoolan: Killers
comeuppance
R
N
I N
o. U
PEN
G
/2007/25763
CONVICTED JUVENILES
Should we
hang them?
hame: ...................................................................................... Age: ............................. Sex: .......................................
Address: ........................................................................................................................................................................
.......................................................................................................................................................................................
.......................................................................................................................................................................................
Cily: ................................................................. Slale: ..................................................... Fin: ......................................
Fhone Res.: ...................................... 0ice: ...................................... email: ..............................................................
Enclosed 00/Cheque ho.: .............................. 0aled: ...................... 0rawn: ........................... or `: .........................`
Card ho.: ............................................................................. Signalure: ........................................................................
For oulslalion cheque lease add ` 5O/
`00/Cheque lo be drawn in avour o Eh Communicalions Fvl. Lld.
To be senl lo: Eh Communicalions Fvl. Lld. A9, SeclorG8, 0aulam Buddh hagar, h00A (b.F.) 2O18O9
Terms & condilions aly. Flease rovide us 4 weeks lo slarl your subscrilion
SUBSCRIBE TO INDIA LEGAL
GET FABULOUS DISCOUNTS
Yes, would like lo subscribe lo h0A LE0AL maga/ine or lhe oer indicaled below
Tick one Term (Years) No. of Issues Cover Price (`) You pay (`) You save (`) % Saving
1 Year 24 Issues 2400/- 1200/- 1200/- 50%
2 Years 48 Issues 4800/- 1920/- 2880/- 60%
For advertising & subscription queries
sales@indialegalonline.com
Dont miss a single issue of this independent, scintillating new fortnightly
magazine and get special discounts for yourself and your friends
DEATH
TRAP
patients who are victims of
medical negligence
suffer twice over in their fight
for justice
By Akshat Agarwal
N
amrata Bhargav wondered why she
was experiencing severe abdominal
pain since delivering a baby through
a caesarean section about six
months back. Initially, she dis-
missed it as something normal, thinking it to be the
after-effects of surgery. But when the pain persisted,
she got worried. Unable to even breastfeed her
newborn due to the incapacitating pain, Namrata
decided to get a few tests done.
Following a CT-scan, she was horrified to know
that there was a large cotton gauze, the size of a hand
towel left inside her abdomen during her caesarean
operation, causing an infection in her intestinal wall.
And what was more shocking was that it happened
at Fortis Hospital in Noida, that boasts of the best
of amenities.
These shocking cases of medical negligence are
on the rise. Horror stories of objects being left by
careless surgeons inside patients and rodents attack-
ing infants in hospitals are hitting the headlines on a
regular basis.
There are few professions which have as much
esteem and reverence attached to them as the med-
ical profession. As a profession that deals with
extremely sensitive matters of life and death, it is also
one where utmost care and commitment is required.
However, with the growth in professional medicine
RIGHTS/
medical negligence
Amitava sen
26
September 15, 2014
in the country, cases of medical malpractice or
negligence are rising correspondingly.
S
ince a certain degree of medical expert-
ise is assumed to be possessed by all
professionals in the field, their offering
of a service can be seen as an implicit under-
taking to the patient of their adequacy and
skill. Moreover, the fact that human lives are
involved, makes this a delicate situation: a
mistake or an oversight on the part of the pro-
fessional can cause severe damage to the per-
son of the patient. There have been many
cases where the sheer carelessness of a trained
individual responsible for the care of the
patient has caused injury or death. In the US
alone medicalnewstoday.com reports that
1,95,000 deaths occur every year due to med-
ical malpractice or negligence. Malpractice in
India is perhaps just as prevalent, but lack of
reportage and documentation means that no
reliable figures are available.
Legally, such an act of negligence can be
the subject of a civil suit for the recovery of
damages. In cases where it leads to the death
of the patient, criminal proceedings under
Section 304A of the Indian Penal Code can be
brought against the accused healthcare
providers for negligently causing death.
However, it is no easy task to fight such a
case. The law provides certain protections to
medical professionals, on the grounds that
such cases cannot be treated at par with ordi-
nary cases of negligence. In Jacob Mathew vs
State of Punjab, the Supreme Court laid down
certain guidelines to be followed by the
authorities if a complaint of criminal negli-
gence comes up.
One, the police cannot proceed against a
doctor who has been accused of medical neg-
ligence without obtaining a second opinion
from a medical professional, preferably a gov-
ernment doctor. Two, the court will be bound
to follow this procedure: it must seek the
opinion of a qualified doctor to ascertain
whether there has been negligence or not, as
judicial officers can hardly be expected to be
familiar with the nitty-gritty of medicine and
medical procedures.
Finally, the police cannot arrest a doctor
accused of negligence in a routine manner.
This protects doctors from the constant
fear of arrest. The court reinforced this idea in
Martin DSouza vs Mohammad Ishfaq, where
it said: While this court has no sympathy for
doctors who are negligent, it must also be said
that frivolous complaints against doctors have
increased by leaps and bounds in our country,
particularly after the medical profession was
placed within the purview of the Consumer
Protection Act.
The bench, consisting of Justices M Katju
and RM Lodha (now chief justice of India)
went on to say in its judgement: This (guide-
lines) is necessary to avoid harassment to doc-
tors, who may not be ultimately found to be
negligent. We further warn the police officials
not to arrest or harass doctors unless the facts
clearly come within the parameter laid down
in Jacob Mathews case, otherwise the police-
men will themselves have to face legal action.
The same apex court, however, has also
shown its willingness to grant large sums as
compensation where legitimate cases of negli-
gence have been proved. In a milestone
The Consumer Protection Act
(COPRA) was passed in 1986 and
hailed as a huge step forward for
consumer interests in India. The act
lays down the rights that all
consumers have: including the right
to safety, choice and information. It
also established a framework of
consumer forums at the district,
state, and national level. These
together form a fast track
redressal mechanism for
consumer complaints.
A consumer is defined under
COPRA as any individual who buys
or hires any good or hires or avails of
any service for a payment.
In the milestone case of Indian
Medical Association vs VP Shantha,
the Supreme Court held that
healthcare was a service unless it
was for free. Thus, a patient going to
a clinic or a hospital is a consumer
when he pays for the services
provided there, or if the clinic or
hospital usually accepts payment for
services. Any hospital, clinic or
dispensary that works free of cost
does not come under the definition
of services under COPRA and action
cannot be taken against them.
In todays era of privatised
healthcare, where large private
hospitals often charge huge sums
for their services, the act protects
the interests of patients and offers
them recourse in any deficiency in
the services they have availed.
The procedure for filing a
complaint under COPRA is simple:
A complaint can be filed, for a token
cost, at the district forum for claims
up to `20 lakh, at the state forum for
claims up to `1 crore, and at the
national forum in case the claim
exceeds `1 crore. These forums are
intended to provide a fast-track
alternative to minimize the agony
associated with long-drawn civil
cases and have the same powers as
civil courts and are empowered to
order payment of damages.
Rights of patients
27
INDIA LEGAL September 15, 2014
there are a lot of frivolous and vexatious com-
plaints against doctors, from which they must
be safeguarded. However, it is essential that
this be balanced with the interests and rights
of patients.
The creation of a specialised tribunal is a
solution suggested by many medical experts,
and that includes the Indian Medical
Association. Unlike consumer forums, which
deal with the consumer complaints in gener-
al, such a forum would deal specifically with
medical cases. This would allow for the
appointment of medical experts as adjudica-
tors, instead of their current role as amicus
curiae or friends of the court. Such a frame-
work can be created under the Consumer
Protection Act through an amendment.
Until concrete steps are taken towards the
creation of such a steady mechanism, the
hundreds of cases of medical negligence cur-
rently in the backlog, as well as the new cases
arising every day, will continue to be a tough
battle for the victims. Perhaps more ominous-
ly, until greater accountability and harsher
punishment for negligent professionals are
enforced, the indifferent attitude of doctors,
even in the highest places, will continue to
endanger life and limb in India.
judgement in October 2013, the Supreme
Court awarded Dr Kunal Saha `6 crore as
damages for the death of his wife Anuradha
due to the negligence of a prominent doctor
in Kolkata. She had a minor skin infection
and the doctor prescribed steroidsto be
taken twice a day. Normally, it should be
given only once a week. This led to an allergic
reactionher skin started peeling offand
finally, her death.
A
fter a gruelling 15-year legal battle,
wherein the NRI doctor fought tire-
lessly for justice, the court ruled in his
favor. But Dr Saha had a significant advan-
tage over the average litigant, as his medical
knowledge helped convince the Supreme
Court. Moreover, he had the resources to fight
the protracted case, which most of those who
fall victim to medical negligence do not have.
Nevertheless, this case set a precedent, where
large sums, hitherto unheard of in Indian
medical jurisprudence, could be awarded.
As increasing cases of negligence in India,
even in expensive private hospitals, continue
to rise, it becomes imperative to evolve a suit-
able mechanism for dealing with such com-
plaints and claims. There is no doubt that
RIGHTS/
medical negligence
IL
Medical negligence, as
the term suggests, is
negligence in the field of
medicine. It occurs when a
healthcare provider, by
some act or omission, fails
to fulfil a duty owed to a
patient, and thereby causes
harm to the patient. The
healthcare provider here
might be a surgeon, a
nurse, or any professional
working in the medical field.
These are the essential
factors for a claim of
medical negligence:
A duty was owed: A
legal duty exists whenever
a hospital or healthcare
provider undertakes care
or treatment of a patient
(for a payment)
A duty was breached:
The provider failed to
conform to the relevant
standard care
The breach caused an
injury: The breach of duty
was a direct and proximate
cause of the injury
Damage: Without
damage (losses which may
be pecuniary or otherwise),
there is no basis for a
claim, regardless of
whether the medical
provider was negligent.
Likewise, damage can
occur without negligence,
for example, when
someone dies from a
fatal disease
What is medical
negligence?
Anil Shakya
28
September 15, 2014
At the end
of the
TUNNEL
dr kunal sahas legal battle is seminal for
all affected by doctors laxity. he has got
more than `11 crore for his wifes death
By Dinesh C Sharma
W
HEN lawyers of a Kol-
kata-based corporate
hospital handed over
a cheque of `1.06
crore to an NRI doc-
tor in a sparsely crowded court room in the
Supreme Court on July 7, it brought the cur-
tains down on the longest running case of
medical negligence in the judicial history of
the country.
Dont get bemused with the amount. The
cheque was not the compensation amount
nor was it the interest on compensation
awarded by the Supreme Court in October
last year. The `1 crore plus paid by the
Advanced Medicare and Research Institute
(AMRI) to Dr Kunal Saha was the amount
arrived at after the hospital had deducted
TDS (tax deducted at source) from the
RIGHTS/
medical negligence/case study
HAPPINESS CUT SHORT
Saha with his deceased wife in
happier times
29
INDIA LEGAL September 15, 2014
compensation amount. Saha, arguing him-
self in court, contended that holding back
part of the compensation and the interest on
it amounted to contempt of the court.
The judgesJustice V Gopala Gowda and
Justice CK Prasadagreed and categorically
stated that compensation for wrongful dea-
th of a patient cant be construed as income
and no income tax should be deducted from
an award of compensation. AMRI lawyers
were forced to hand over the cheque to Saha
in the courtroom itself. With this, AMRI has
paid more than `11 crore in compensation
and interest but they still owe me several
lakhs of rupees as there is discrepancy in cal-
culation, Saha maintains. However, he is sat-
isfied with the latest development in the legal
battle that began in 1998.
Saha is no ordinary litigant. He himself is
a doctor and has lost his wife, Anuradha, who
was a child psychologist based in the US, due
to medical negligence caused by the doctors
of AMRI when she was admitted there
during a social visit to Kolkata in May 1998
(read the story Death Trap). The personal
tragedy turned Kunal into a crusader as well
as champion of a cause with hardly any tak-
ers of medical negligence in the Indian
healthcare system.
In the past 16 years, Saha has taken on the
Indian medical world and jurisprudence con-
cerning medical cases and set new bench-
marks. In this long battle, he has stood up to
the high and mighty of the system. These
include Dr Ketan Desai of the Medical
Council of India (MCI), the state medical
council, West Bengal Chief Minister Mamata
Banerjee who appointed one of the doctors
convicted in the case as her chief medical
adviser, the Supreme Court administration
for corruption in listing cases, and even a
judge of the West Bengal high court.
T
he compensation amount of `11 crore
which Saha has got from the case
(including the interest amount, the
actual amount being `5.96 crore) is minis-
cule, compared to `77 crore which he had
originally claimed. It is not the amount
which is important but the judicial principles
which have been established through this
case, he said in an interview. Anuradhas
case has brought new hope to countless vic-
tims of medical negligence across the country
and has shown a new pathway for calculation
of compensation for loss of human life.
In any case, Saha is not taking even a sin-
gle rupee back to the US, where he is based.
He had already declared that he would dona-
te any compensation amount awarded by
Indian courts to People for Better Treatment
(PBT), a patients rights group he set up in
Kolkata to address the problem of negligence
and malpractices in the Indian health sys-
tem. Saha had filed a sworn affidavit to this
effect in the court. Now, he says, he has spent
more than `11 crore to fight the case for 15
years, which involved innumerable visits to
India, legal costs, payment to attorneys and
experts, and so on.
RIGHTS/
medical negligence/case study
Dr Kunal Saha says higher compensation
will not help families hit by medical
negligence but will act as a deterrent to the
reckless practice of medicine in India.
LIFE-LONG CAUSE
Kunals personal tragedy
made him a crusader
for people hit by
medical negligence
30
September 15, 2014
IL
Future prospects of the victim must
be considered for determination of
compensation: Even if a child or
young student dies from negligence,
his potential income in future, not
income at the time of death, should
be considered for calculation of
compensation.
Enhanced compensation should be
paid for long delay in the legal
system: Claim made in the original
petition must be proportionately
increased considering inflation and
devaluation of money for the long
period of delay in every case.
Compensation claim may be
changed even without pleadings:
Original claim may be increased at
any stage during litigation even
without amendments or pleadings.
Interest must be paid from the date
of filing of case: Appropriate rate of
interest must be added in all cases
of medical negligence from the
day of filing the case.
Multiplier method cannot be used
in medical negligence cases:
Formula of multiplier method
generally used under Motor Vehicle
Act (MVA) with restricted compensa-
tion cannot be used in medical
negligence cases.
Status of doctor or hospital should
be taken into consideration: The
status of treating doctors and
hospital should be taken into
account for determining the
quantum of compensation.
Enhanced compensation should be
paid for medical negligence cases
against more reputed doctors
and hospitals.
Legal and travel expenses must be
paid: Appropriate level of lawyers
fee and legal expenses must be
reimbursed by the guilty doctors
or hospital.
Hospital must pay compensation:
While doctors may be punished for
their negligent act, hospitals must
pay the lions share of
compensation for vicarious liability.
Calculating compensation
The role of state medical councils is crucial
for medical negligence cases. Since consumer
courts lack the necessary expertise, they go by
recommendations of the state medical coun-
cils and the MCI acts as an appellate authority
for state councils. However, state councils and
MCI rarely go against members of their own
community as it happened in the case of Saha.
Therefore, he is fighting to reform the system
by insisting that non-doctors should also be
involved in the process, as is the practice in
the US and the UK.
Saha says higher compensation is not
going to help families suffering from medical
negligence but it is necessary to inflict a
strong deterrent effect on reckless practice of
medicine by many Indian doctors and hospi-
tals. Its a long haul before he can rest.
The experience of the case is seminal for
all concerned with medical negligence in
India. First, the National Consumer Disputes
Redressal Commission (NCDRC), the apex
body for all consumer complaints including
medical negligence under the Consumer
Protection Act of 1986, dismissed the case
after hearings, which went on till 2006. It
based its judgment on the recommendation
of the West Bengal Medical Council.
When Saha appealed in the apex court
against the verdict, it overturned the judg-
ment and found that Anuradha had indeed
died due to negligence of doctors at AMRI,
and convicted four leading doctors. Two of
them are since dead and one is elevated to the
post of chief medical advisor of the West
Bengal government.
Among other things, the apex court ruled
that overdose or wrong dose of a medicine too
amounts to negligence, as Anuradha had died
due to wrong dose of a powerful steroid.
However, the court did not fix the compensa-
tion and referred the case back to NCDRC
solely for the purpose of determining the
quantum of compensation. The consumer
court, which had found no negligence earlier,
then awarded compensation of `1.72 crore
but went beyond its brief and, surprisingly
enough, held Saha too party guilty of negli-
gence. It deducted 10 per cent of the amount
for contributory negligence on the part of
Saha himself as, according to the consumer
court, he interfered in the treatment.
Saha went back to the apex court, which
heard the case once again and after lots of
twists and turns, hiked the compensation
amount in October 2013 to `6.08 crore with
interest since 1999, which comes to over `11
crore. In the process, the court established
several new principles of law for calculating
compensation in such cases (see box).
T
hankfully, the NCDRC has learnt its
lessons, as reflected in its judgment
in the case of death due to negligence
by an elevator company. Though it was not a
case of medical negligence, the consumer
court used principles laid down in the
Anuradha Saha case and awarded compensa-
tion of over `3 crore to the victims family in
February 2014.
31
INDIA LEGAL September 15, 2014
Ramifications of the Supreme Court verdict in Anuradha Saha case
CRIME/
public sector fraud
I
T was an unholy nexus that saw
the exchequer losing crores of
rupees. And considering that gov-
ernment banks were involved, it
was worrisome. The recent
arrests by CBI of Sudhir Kumar
Jain, suspended CMD of
Syndicate Bank, which has over `10,000 crore
assets, and Neeraj Singal, owner of Bhushan
Steel, a public limited steel manufacturing
company worth `9,000 crore, show a shock-
ing disregard for public probity and morality.
Both were held for exchanging a bribe of
`50 lakh in lieu of a loan worth `100 crore.
The scandal blew the lid off rampant corrup-
tion in government-controlled banks while
awarding high risk loans (which have less
chance of recovery) to wealthy businessmen
under the influence of middlemen.
But why would Jain and Singal, both
The Great
Bank
the arrests of syndicate bank cmd and owner of bhushan steel highlight
the infiltration of middlemen in the public sector
By Vishwas Kumar
Robbery
presiding over huge fortunes, jeopardize their
future over an amount as little as `50 lakh?
According to a CBI insider, it was a case of des-
perate times calling for desperate measures.
STRUGGLING COMPANY
Singals company was struggling with huge
debts, totalling `40,000 crore, taken over a
period of time. These were mostly from public
sector banks like State Bank of India (SBI) and
Punjab National Bank (PNB). The company
was not in a position to return these huge
loans and the resultant interests. In these
circumstances, the company urgently needed
fresh funds to carry on day-to-day operations.
But no responsible bank was likely to bail
it out, unless some middleman convinced
top bosses to extend credit limits and over-
look the debts.
These middlemen operate under the garb
32
September 15, 2014
DUBIOUS NEXUS
(L-R) Jain of
Syndicate Bank
and Singal of
Bhushan Steel
had no
scruples about
cheating the pub-
lic of `100 crore
of loan or financial consultants. As the CBIs
case reveals, Singal got in touch with Pawan
Bansal, the MD of Altius Finserv Private
Limited (AFPL), a Mumbai- and Delhi-based
loan and financial consultant. AFPL opened
negotiations with several friendly bankers
and finally got a positive response from Syndi-
cate Banks Jain. As per the banks rules, any
decision to extend a big credit limit could only
be taken by Jain.
Negotiations now started between Jain,
Bansal and Singal, which lasted over six
months. Finally, a deal was struck, where the
bank would extend a `100-crore credit limit in
lieu of `50 lakh bribe being paid in advance to
Jain. They were, however, unaware that the
CBIs anti-corruption unit was listening and
recording their telephone conversations and
also keeping a watch over their movements.
Finally, on August 2, much to their astonish-
ment, CBI sleuths swooped down on them and
arrested them.
EASY BAIT
But why did Jain agree to the offer of Singal
and Bansal? To understand that, one must
know how CMDs of public sector banks are
appointed. In 2013, Delhis power circles were
abuzz with rumors that the Ministry of
Finance was in a hurry to fill vacancies for the
post of CMD of these banks. It was alleged
that if money was paid, the appointment of
these top bankers could be facilitated.
The ministry has a major say in the
appointment of top bankers, even though
there is a so-called independent panel, the
Public Enterprise Selection Board, to do so.
Similarly, it was alleged that there was even a
rate for the appointment of bank board mem-
bers. These are people who will scrutinize the
CMDs performances.
According to the CBI, Jains appointment
as CMD on July 8, 2013, lacked transparency
and smacks of unfair practices.
Those who were appointed by paying bribes
obviously indulged in corrupt practices to
get their money back. Doling out risky loans
was the easiest way to do so.
33
INDIA LEGAL September 15, 2014
CRIME/
public sector fraud
the Banking Appointment Board. This high
score helped to propel Jain to the post, even
though he had scored only 62 out of 70 marks
in the Annual Confidential Report, the report
added. The sub-committee also picked up can-
didates for seven other top bank posts. The
CBI is now awaiting the finance ministrys nod
to probe them too. Takru, however, has denied
any favoritism.
The agencys allegation lends credence to
the rumors swirling around in 2013 that mid-
dlemen were active in the appointment of top
bankers and board members in government
banks. Those who were appointed by paying
bribe obviously indulged in corrupt practises
to get their money back. Doling out risky
loans was the easiest way to do so.
LOAN BROKERS
Besides this, providing loans is an important
tool for any bank to earn profit. All bankers
A confidential advisory sent by CBI direc-
tor Ranjit Sinha to Finance Minister Arun
Jaitley hints at collusion with finance ministry
officials in his appointment. The CBI advisory,
according to an Indian Express report, men-
tions the role of Rajiv Takru, secretary, finan-
cial services, who was chairman of the sub-
committee that recommended Jains appoint-
ment at its meeting on February 11, 2013.
Takru is now secretary, Ministry of Deve-
lopment of North East Region.
The unfair practises cited by CBI is a
reference to Takrus sub-committee giving SK
Jain 29 marks out of 30 in his interview with
Loan brokers with good connections with
bankers help in reducing interest rates by a
few percentages or enable companies to get
loans loans without adequate collateral.
A
n
i
l
S
h
a
k
y
a
CASH-HUNGRY COMPANY
The premises of Bhushan
Steel in Sahibabad
34
September 15, 2014
IL
In 2009, Bhushan Steel acquired controlling
interest in Queensland-based coal and explo-
ration company, Bowen Energy. It further tied
up with Japans Sumitomo, a steel manufac-
turer, to start a plant in West Bengal in 2007.
It borrowed heavily from banks to fuel this
rapid expansion and growth. Initially, the
company met the repayment schedule. How-
ever, profits started declining in proportion to
the global decline in steel prices.
And then came the double whammy. A
huge scandal broke out in the UPA-II govern-
ments award of mines and coal blocks. The
Supreme Court stepped in and multiple inves-
tigative agencies launched probes. These
developments hugely impacted businesses.
Caught in a classic debt trap, Bhushan
Steel was on verge of defaulting loans. If the
loan was declared a NPA, it would prevent
other banks from lending money to the com-
pany. Till now, the company had prevented its
loans from being declared NPA by paying
minimum amounts of interest. However, it
urgently needed money to even meet the next
round of interest. It was this urgency that
forced Singal to seek the help of Bansal for a
loan from Syndicate Bank.
This is a classic case of biting off more than
one can chew.
have annual targets for providing different
types of loans, be it car, personal, housing,
commercial, etc. They often lure customers by
offering incentives such as easy payment
schedules and varying interest rates. But there
are customers who come with special require-
ments. These include businessmen who have
to negotiate terms and conditions from the
bankers. It is here that loan brokers with good
connections with bankers play a role. They
could, for example, help in reducing interest
rates by a few percentages or allow loans with-
out adequate collateral. With rampant brib-
ing, everybody benefits, be it the banker, the
businessmen or the broker. Of course, the
bank loses out.
In most cases, such businessmen default
on these loans and banks are unable to recover
them as there is a long, winding legal process
to recover them. In most cases, there is noth-
ing left for the banks to recover, as the busi-
nessmen gradually strip their companies of all
valuable assets. These are either transferred to
another company or put in the name of family,
friends or close associates.
Such junk loans, also called Non-Per-
forming Assets (NPAs), led to Syndicate
Banks net profits declining. Two months
before Jain was arrested, some of Syndicate
Banks board members raised the issue of ris-
ing NPAs during the Annual General Meeting
(AGM) held at Manipal, Karnataka. The min-
utes of the AGM reveal that the net profit for
2012-13 was `2,004 crore. This declined to
`1,711 crore in 2013-14 due to the rise of NPAs.
Net NPA percentage, as compared to net
advance, stood at `1.56 percent in 2013-14 as
compared to 0.77 percent in 2012-13, indicat-
ing that there was a steady growth in NPAs.
STEEL YOURSELF
Lets look at Bhushan Steel now. The company,
founded by Brij Bhushan Singal in Sahibabad,
UP, in 1989, started as a value-added steel
manufacturer. Singals younger son Neeraj,
who now runs the company, aggressively expa-
nded into steel manufacturing, with major
plants located in Odisha. From the time when
the Chinese construction boom started till
2011, when steel prices touched an all-time
high, all steel companies, including Bhushan
Steel, made handsome profits and expanded.
HIGHS
Between 2006-2010, debt repayments: `55 crore-`316
crore a year
Cash from operations during the same year: `400
crore each year
Annual growth rate: 53%
LOWS
From 2010-11, debt repayment obligation more than
trebled to `1,118 crore
Several loans taken, including for phases I&II of the
Odisha plant, led to operating cash flows of `994 crore
In 2013-14, interest burden shot up to `1,663 crore
In 2013-14, profits shrank 93% to `59 crore
Accumulated loans of Bhushan Steel: `40,000 crore
No of banks it took loans from: 51
Fluctuating fortunes of
Bhushan Steel
35
INDIA LEGAL September 15, 2014
while the mercy petition of
two kolhapur sisters who
murdered 10 kids
was rejected, why wasnt
their psychological
condition evaluated?
By Ritu Goyal Harish in Pune
V
ERY rarely do women commit
crimes so heinous that society
feels a sense of revulsion.
Serial killers and half-sisters
Renuka Shinde, 41, and
Seema Gavit, 39, are two such persons and
they will go down the annals of history as the
first women to be hanged in independent
India. Though President Pranab Mukherjee
rejected their mercy petition early this
month, their execution has been stayed by
the Bombay High Court till the disposal of
their petition seeking commutation of death
sentence to life imprisonment. The next
hearing is on September 9.
Given the enormity of their crimes, there
are few sympathizers. How could they find
CRIME/
Kolhapur murders
any sympathy? After all, they kidnapped and
murdered over 13 toddlers, using them to
distract crowds when in danger of being
caught while stealing. Even the advocate,
who was representing them, was shocked at
their cold-bloodedness.
HORRIFIC ACTS
So vile were their acts that it attracted the
censure of a Supreme Court (SC) Bench of
KG Balakrishnan and GP Mathur, who said:
They had been a menace to society and peo-
ple in these cities were completely horrified
and they could not send their children even
to schools. One would hardly have expected
such barbarity from women.
It all started in 1990, when Renuka, who
KILLER
SISTERS
36
September 15, 2014
sentenced the sisters to death. Their appeal
was rejected by the Bombay High Court; and
by the Supreme Court in 2006.
The SC Bench observed: They very clev-
erly executed their plans of kidnapping the
children, and the moment they were no
longer useful, they killed them. The appel-
lants had not been committing these crimes
under any compulsion, but they took it very
casually and killed all these children, least
bothering about their lives or the agony of
their parents.
Even those meant to help them found it
difficult to sympathize with them. One of
them was Pune-based advocate Asim Sarode,
who assisted them in filing the application
for clemency with the president after the
was married to one Kiran Shinde, was caught
stealing at a temple in Pune. She ingeniously
used her son to defend herself and pleaded
with the crowd that she was a mother and
couldnt possibly be a pickpocket. She was let
off. This gave the gang, which included
Shinde, the idea of using children as pawns
in their acts. Thus began their journey from
being petty thieves to murderers (See Box).
Between 1990-1996, Renuka, Seema and
their mother, Anjana, kidnapped more than
13 children from Pune, Nashik, Thane,
Kalyan and Kolhapur.
In 1996, the trio was charged with the kid-
napping of 13 children and murder of 10 of
them. Anjana died before the trial began. The
district and sessions court in Kolhapur