Libertatem Magazine - Issue 22 [Nov 2016]

MAST HEAD LIBERTATEM MAGAZINEEdition 22ISSN: 2395-4418www.mylibertatem.comFounders: Ankita Ranawat & Rahul Ranjan Content Creators: Saakshi Sharma, Vaibhav Sharma, Vaisakhi Muddana, Shubham Patel, Adit Kesarwani,Editor In-chief: Swarnabh Dutta Prateek Mago, Prithwish RoyAdvisory Editors: Dr. Howard Williamson, Dr. AhmadGhouri, Dr. Dabiru Patnaik, Dr. Rachana Choudhary, Asst. From the Courtroom: Piyush Agnihotri, Swarnalee Halder,Prof. Silky Mukherjee, Dr. Harmik Vaishnav, Asst. Prof. Shashank Mishra, Peri PratimaOwais Hasan Khan, Asst. Prof. Victor Nayak, Shhaurya Sah,Fr. Peter Ladis, Adv. Asim Pandya, Adv. Jayesh Patel Igniting Minds: Jaya Gurnani, Suyash Jain, Akanksha Sikri, Jane Maria TomySenior Editor: Smriti Brar Graphics Designer: Haba CristianEditorial Associate: Sarthak Sonwalkar, Nada Faruqi Partner Relations: Shristi MathurAssociate Editor: Rachana K, Aishwarya Dhakarey,Shreeyash Uday Lalit, Nimisha Srivastava, Apurva Taran,Pragalbhi Joshi, Pragya Dhoundiyal, Anushka Jain, RitishaMukherjee, Anchit Bhandari, Somya Stuti, Richa SankhlaDistributed By: Apple NewsStand, Google Play Newsstand, Amazon Kindle, Joomag Publishers, ReadWhere Newsstand,Magzter Newsstand2 Issue 22

CONTENT CONTENT Issue 22 3ARTICLESIndia-Myanmar Relations:4Effect of Suu Kyi’s Visit...............................................Uniform Civil Code, Gender-6Just ice and Personal Laws.......................................Surgical Strikes12Public Transparency v. National Security............14Religion as our Strength........................................Data Breach in Indian Banks a Master Theft16or a Grand Fiasco?..................................................18The Flip Side of Simi Encounter............................20No Detention Policy in Schools.............................COVER STORYThe Boardroom Battle inside8Tata’s Bombay House................................................FEATURES22From the Courtroom..............................................26Igniting Minds.........................................................

INDIA-MYANMAR RELATIONSIndia-Myanmar RelationsEffect of Suu Kyi’s Visit by Prateek MagoT he Republic of India and the Republic of the Advanced Centre for Agricultural Research and Education, Union of Myanmar are not just neighbouring Myanmar Institute of Information Technology, Rice Bio countries, in fact, these two sovereign Park at Yezin Agriculture University, building of 71 bridges nations have a lot to share amongst on Tamu-Kalewa-Kalemyo Road, etc.themselves, from ethnicity to history, from religious ties to Apart from technically and financially assisting Myanmar, India has also made tremendous efforts in upgrading thecultural ties. The most remarkable incident that glorified cultural heritage in Myanmar. There have been a lot of cultural initiatives taken by India in Myanmar, ranging fromthe foreign relations between these two sovereign entities organising Bharatnatyam & Yoga sessions to organising the International Conference on Buddhist Cultural Heritage.was the signing of the Treaty of Friendship in 1951. After From the side of Myanmar, there was one exchange held in 2009 wherein it sent a 13 member student delegation tothis, another most significant step which strengthened the India to attend the SAARC Cultural Festival.bond between these two nations was the visit of the then On a strategic note, Myanmar plays a very vital for India as it is the only ASEAN nation which shares its borders withPrime Minister Rajiv Gandhi in 1987. India. It is a very concrete link between ASEAN and India. For India to realize and implement its ‘Look East policy’,Myanmar acts as a very significant entity for India, both in the impetus that is required to do this is Myanmar, hence,terms of economic and strategic context. There have been the relations between these two need to be as cordial asa lot of visits by several ministers from both these possible.countries, and it has now become a usual affair. Numerousdelegation level talks have been held to assist each other’s For India to become a prominent global player, it needs toadministration. This has resulted in a number of Indianfunded projects in Myanmar. India and Myanmar havealways believed in the concept of developmentcooperation, and hence, India has been a tremendoussource for Myanmar in terms of technical & financialassistance for a high number of projects, for example,4 Issue 22

INDIA-MYANMAR RELATIONSmaintain its hegemony in the Asian region, and that in a huge influx of Rohingya refugees, and as per thebecomes more important because of the competition that present situation, it might have to take in more suchthe People’s Republic of China gives. It is supposed to refugees.strengthen and develop its policies in such a regard thatthey all, in a consolidated manner, help India to evolve The whole crisis of Rohingya refugees also becomesdomestically. The previous governments in India have put important because of another prominent reason. It is thatin marvellous efforts to make the relations between India one situation which has compelled the ASEANand Myanmar stronger. It is now the responsibility of the organisation to discuss a particular member nation’spresent government to continue the legacy that was set up internal political matter. This was done because the influxby the previous governments in this regard. A more of Rohingya refugees was creating a huge burden on theproactive and a pragmatic approach is necessary in order resources, trade, opportunities, etc. of the neighbouringto sustain the power in the region, as the road to become countries in which the refugees were actually takingan important global player is full of impediments. And shelter. So eventually, this issue started gaining regionalfortunately, the present government seems to do just fine importance, and hence, it was necessary to discuss this atin this regard. an appropriate regional platform.This assertion This crisis has a lotbecomes more to do with the newsubstantive with leader Aung Santhe recent visit Suu Kyi. She hasof Aung San Suu shown very littleKyi, Myanmar’s dedication andfirst enthusiasmdemocratically towards solvingelected leader in this current crisis.about 50 years, The status quoto New Delhi. clearly indicatesEven though she towards violenceis not the formal and regionalhead of the state migration crisis.or the This becomesgovernment, her important for Suuvisit to India was Kyi because it isstill considered now herto be one of the ‘sovereign state visits’. This is evident responsibility, asbecause of her subsequent meetings with the President of the supreme leader, to open Myanmar before the world,India Mr. Pranab Mukherjee, the Prime Minister of India Mr. especially after half a century of military dictatorship in theNarendra Modi, and the Minister of External Affairs Ms. country. She simply cannot afford to have a migrationSushma Swaraj. crisis in her country at this point of time, especially at a time when the West is looking for opportunities to unfoldSuu Kyi has a very close connection to India because of humanitarian disasters.several reasons. For example, her father, General Aung Sanand India’s first Prime Minister, Jawaharlal Nehru, used to That is why, this visit to India is a very significant stepbe very close. Also, she has spent her initial years in India towards strengthening the relations between the twoduring 1960s, as her mother used to serve as the Burmese nations. It has also given a chance to India to play a vitalAmbassador to the Republic of India, back then. role in Myanmar’s nation building and democratic evolution. It becomes more evident by the departingBut as they say, a coin has two sides. Similarly, the cordial words of Suu Kyi during her recent visit, wherein sherelations that these two nations share are sometimes at thanked India for helping the Republic of the Union ofstake because of certain incidents that occur. And one Myanmar “make up for lost time”. It is definitely believedparticular incident which is most likely to hamper the that our Prime Minister and President will also be visitingrelations between these two nations is the Rohingya Myanmar in lieu of building strong relationships, which willrefugee crisis. Out of around 1.5 million Rohingyas who are safeguard the interest of both these nations.native to Myanmar, more than half have already beendisplaced because of several factors, most of them have Till then, all that can be expected from Suu Kyi is that shemigrated to the neighbouring countries, and almost rest of works & strives hard to earn the Nobel Peace Prize for thethe lot has no or very limited access to educational, work second time. It is her who has the power to bring about aand health facilities. Having said that, India is one of those change in Myanmar’s geopolitical situations and improvingfew neighbouring countries of Myanmar which had to take the lives of its citizens, especially the Rohingyaas. Issue 22 5

UNIFORM CIVIL CODEUniform Civil Code, Gender-Justice and Personal LawsPutting Things into PerspectiveA rticle 44 of the Indian Constitution is that Uniform Civil Code would necessarily imply gender- couched in such phraseology that it is just laws, something that is far from the original intent replete with controversy when analyzed in behind this directive principle of state policy. The the light of the broader constitutional seemingly inherent contradiction between gender-justice and personal laws, particularly the Muslim Personal Lawscheme. The directive that has been laid down as, “The compels one to study the impugned provisions. Instantaneous Triple Talaaq, Nikah Halala and Polygamystate shall endeavor to secure a uniform civil code to all have been subject to widespread controversy. In the 'age of ignorance' wherein women were deemed to bethe citizens throughout the territory of India.” is often playthings in the hands of men, to be used and misused as per their own whims and fancies, husbands used tomade a subject of wanton abuse by the political parties in pronounce talaq twice and withheld the third pronouncement to keep their wives in a state of constantthe run up to elections. The constitutional imperative dilemma. The Quran put a stop to this kind of exploitation of women and highly discourages instantaneous divorce.behind this Article, however, was to “unify” and “integrate” Essentially, the most-approved concept of divorce under the Islamic law i.e. Talaq-e-Ahsan that involves enormousthe laws that had not been “invaded” by the legislators of scope of reconciliation between spouses is admittedly the most humane form of divorce under any legal system;that time i.e. the laws pertaining to Marriage, Maintenance, Talaq-e-Hasan being the next best which also allows ample time for reconciliation. Instantaneous Triple TalaqDivorce, Adoption and Inheritance. After a lengthy debate traces its roots in the caliphate of the second caliph of Islam, Umar Farooq. When the areas of Syria, Egypt, Persia,in the Constituent Assembly, the directive was defeated by etc. were conquered by the Arabs, they found their women more charming and good-looking than the Arab womenone vote from becoming a Fundamental Right. and therefore many were tempted to marry them. Since the Arab men used to be already married, those womenBut, why Uniform Civil Code? The ongoing hubbub to demanded that they pronounce divorce thrice to theirdemand the unification of personal laws has a rich judicial wives back home, not knowing the fact that the Islamichistory. The Supreme Court in the case of MohammadAhmed Khan v. Shah Bano Begum said, \"It is also a matterof regret that Article 44 of our Constitution has remained adead letter.\" In Sarla Mudgal (Smt.), President, Kalyaniand others v. Union of India and others; the Apex Courtheld, \"Where more than 80 percent of the citizens havealready been brought under the codified personal lawthere is no justification whatsoever to keep in abeyance,any more, the introduction of the ‘uniform civil code’ forall the citizens in the territory of India.\" In several othercases, the Court has emphasized on the need to enact theUniform Civil Code. It has been a rather vague conception6 Issue 22

UNIFORM CIVIL CODE by Nada Zaim Faruqi the Caliph arguably to assert that a man that has shown clear signs of disrespect to his wife by not following thelegal system had already abolished instantaneous divorce. correct procedure and thereby abusing her status, is notThe men, fully aware of the fact that triple divorce worthy to retain ties with her. Caliph Umar would call forpronounced in a single go would not effect divorce with the man who would be found to have divorced his wife intheir wives back home, deluded women by keeping them this manner and have him whipped. The maintenance ofunder cover. When the women learnt about this, they such a woman would become the State's responsibilty.reported the matter to the Caliph and in order to check The writer argues that when the intention of the man isthis capricious use of the law and to protect the dignity of clearly to ill-treat his wife, criminalizing instantaneouswomen, Caliph Umar enforced the legal effectiveness of triple talaq would serve the cause of gender-justice better;instantaneous triple divorce as a deterrent and punitive rather than simply outlawing it. The source of her pensionmeasure. He did this to uphold the spirit of Islamic law of should also be fixed as per the original intent. As regardsdivorce which is to check the abuse of women at the hands polygamy, the question that needs to be addressed is-of their husbands. The whimsical practice of pronouncing Does the ban on polygamy work? Statistically speaking,triple divorce to their wives in the hope of retaining the Hindus are more polygamous than Muslims (Adivasis 15marriage with them on their return back home was per cent, Hindus 5.8 per cent, Jains 6.7 per cent, Buddhistschecked by the caliph and he held that anybody found 7.9 per cent and Muslims 5.6 per cent), despite the fact thatindulging in it would have his marriage irrevocably polygamy is banned under the modern Hindu law.dissolved and would not be able to retrieve conjugalrelations with his wife until she has already been in a \"At present when a Hindu man deserts his lawfullymarriage with another man and consummated it. It is wedded wife to live with another woman, the onlyimportant to note that it was a punitive measure for the remedy available to the deserted first wife is divorce onhusbands and hence the legal possibility of revoking grounds of adultery or desertion. However, mostmarriage with one's former wife in this case which involves abandoned wives may not view divorce as a viable optionthe wife entering into marriage with another man and because of the sacramental nature of Hindu marriage. Inconsummating it, is simply to make the revocability any case, prosecution of the husband does not help thealmost impossible. The fanciful concept of nikah halala first wife. Hindu men who contract bigamous marriagesthat is rampant today has absolutely no place in Islam for are allowed to go scot-free without legal obligationsthe Islamic law does not acknowledge time-bound towards their partners due to the insistence on themarriage which is close to institutionalized prostitution. “solemnisation” of marriage. Even their registration ofRevocability of marriage in this case was made difficult by marriage is not accepted as proof. Clandestine bigamy among Hindus is worse than open polygamy among Muslims. Muslim men who take more than one wife are legally bound to provide each wife not only residence but also proper maintenance and equal care and love. . . Thus, she is better off in comparison to the “second Hindu wife” who has no legal status or rights.The second Hindu wife cannot even claim maintenance from her husband. The Supreme Court in the D.Velusamy case did deny maintenance to a second Hindu wife by holding her as “mistress” and “keep”. Thus banning polygamy amongst Muslims would simply have an equalising effect of making a second Muslim wife as destitute and vulnerable as a second Hindu wife,\" writes Prof. Faizan Mustafa (VC, NALSAR University of Law) in his article \"Multiple Ways to Equality' (The Indian Express; October 28, 2016) Gender-justice amongst Muslims can be attained by way of reconciling the present laws with the original intent and spirit with which they came into being. The non-existence of a blueprint of what we call the Uniform Civil Code has given way to heedless back-and-forth squabble with no ground for substantial debate and a lot of space to arouse the ignorant masses. To say that Uniform Civil Code would be the panacea for all forms of gender-injustice is as ridiculous as saying unicorn is a better mode of transport than airplanes! Issue 22 7

The Boardroom Battle insideTata’s Bombay HouseT ata Son’s blue eyed son Cyrus Mistry was case relates to a INR 145 billion investment by NTT sacked from the post of chairman almost DoCoMo in India which was based on the terms that if after 4 years of occupying the post. The certain targets were not met in 5 years then Tata Group decision, taken at a Board Meeting in would find a buyer who will purchase 26.5% stake (that the NTT DoCoMo owned in Tata Teleservices) at fair marketMumbai, has appointed the former chief Ratan Tata as the value or would take over those shares at half the original value of the investment, whichever was higher. On failureinterim Chairman for a period of 4 months, during which to meet the target by Tata Group, NTT DoCoMo exercised this option and the pay out to be made by Tata amountedtime period a replacement would be sought to be to $1.17 billion and they sought the permission of the Reserve Bank of India (RBI) to pay out this amount. By thisfinalized. time there was a new law put in place by the RBI which prohibited exit of a foreign equity investor at a previouslyTo give a brief about the sacked chairperson, Cyrus Pallonji decided price. The government in light of this law decidedMistry joined as a director on the board of Shapoorji to block this payment by Tata to NTT DoCoMo.Pallonji & Co. Ltd in 1991 and was designated as themanaging director in 1994 of the Shapoorji Pallonji Group. In January 2015, DoCoMo decided to take the matter to theShapoorji Pallonji has 18.4 per cent stake (single largest London Court of International Arbitration (LCIA). The rulingindividual shareholder) in Tata Sons – the holding of the LCIA made the Tata Sons liable to pay $1.17 billion incompany of Tata Group. compensation to NTT DoCoMo, however when DoCoMo came to India and approached the Delhi High Court toIn 2012, Cyrus Mistry was appointed the chairman of Tata enforce the order, the court allowed the RBI to file anSons and simultaneously was also the chairman of major intervention application in the enforcement of the award.Tata Companies such as Tata Steel, Tata Powers, Tata The case is to be heard next on December 1. It is thisConsultancy, Tata Motors, Tata Global Beverages, Tata handling of the case and natural repercussions that it hadChemicals and Indian Hotel Company (Taj Group). on the image of the company that have led to many toHowever, his sacking just after 4 years, the shortest tenure conclude that Ratan Tata and the trustees did not approveof a group chairperson, at the helm came as a shock. of the way the litigation unfolded and it was contrary to what was transpired.THE TATA – NTT DOCOMO SPAT SELLING THE TATA STEEL UK BIZOne of the major reason speculated for the ouster of thechairman was the ugly spat between Tata Sons and NTT The shedding of loss-making entities by Mr. Mistry,DoCoMo, which portrayed the company, which has built itslegacy over a century, in a very poor light. The way the$1.17 billion compensation slapped by an arbitrationpanel over a breach of agreement by Tata Sons is said tobe one of the major reasons which irked Ratan Tata. The8 Issue 22

COVER STORY by Prithwish Royincluding selling off of the entire steel business in the However, a reading of the Company’s (Tata Sons Ltd.)United Kingdom in March too did not go down well within Articles of Association (The articles of association is athe Tata hierarchy. The blame for selling of the British document that specifies the regulations for a company'sbusiness venture was put on cheap imports of Chinese operations, and they define the company's purpose andsteel, high energy costs and weak demand making for an lay out how tasks are to be accomplished within theunsustainable future. The selling of the business can well organization, INCluDINg THE ProCESS for APPoINTINgbe what was alleged to be “departure from culture and DIrECTorS and how financial records will be handled)ethos” of the company as Tata’s growth in the United specifically art.104 of the same shows that Tata Trusts,Kingdom was seen as a matter of pride for the company which is the Company’s largest shareholder with aroundand the nation, the step was seen as a lack of dynamism 66% sharehoding and headed by non-other than Mr. Ratanand a failure to reorganize the wide array of business that Tata, gave itself special powers in nominating, approvingthe group has. Sources say that the decision to sell the UK and removing chairman of the group holding company,Biz was not the way Tata’s handled businesses of loss and this was done just few days before Mr. Mistry took overmaking entities. The group culture and ethos suggested to the post. Thus, these may well have been added to protectrevive the business instead of shutting it down completely. the interest of the Tata Trusts.However, the Tatas has stopped the sales process of theTata Steel UK Ops and are eyeing for other alternatives However, in spite of such special provisions, a bare readingincluding joint venture with German giant ThyssenKrupp of section 6 of the Companies Act,2013 states that:AG. The company has now entered into discussions withstrategic collaborations through a potential joint venture. “Save as otherwise expressly provided in this Act—MISTRY’S ALLEGATIONS (a) the provisions of this Act shall have effect notwithstanding anything to the contrary contained inMr. Mistry, too, held back no punches after his sacking and the memorandum or articles of a company, …; andmade some shocking allegations against the Company andits heads. The most major claim made by Cyrus Mistry post (b) any provision contained in the memorandum, articles,his sacking is that there was no opportunity provided to agreement or resolution shall, to the extent to which it ishim to represent himself in front of the board. The section repugnant to the provisions of this Act, become or beof the Companies Act, 2013 dealing with “removal of void, as the case may be.”directors”, I.e. section 169 states that “A company may, byordinary resolution, remove a director, before the expiry Thus it is abundantly clear that it is the provisions of theof the period of his office after giving him a reasonable Companies Act, 2013 which shall have an overriding effectopportunity of being heard”. Prima facie, thus, this does irrespective of anything stated in the Articles ofseem to be an illegal termination of the chairman. Association and it would be thus interesting to see how the Tata’s can justify not giving a chance of proper representation to Mr. Mistry when the same is his right as per the provisions of the Companies Act, 2013. Issue 22 9

COVER STORY‘TATA NANO’ NOTBEING SHUT DOWNDUE TO EMOTIONALRESAONSAnother interesting SEBI’S INTERVENTIONdevelopment that arose postthe sacking of Mr. Mistry was In response to the letter to the market regulator –his email to the board of Tata Securities and Exchange Board of India (SEBI) have beenSons wherein he made some reportedly keeping a watch over any violation of corporatestartling allegations one of governance or listing obligation norms. Furthermore, stockwhich was that the Tata exchanges have sought clarifications from many of theNano, Ratan Tata’s one of the listed companies of the Tata group on the allegedmost cherished brain child, disclosures made by the former chairman. The SEBI thus ishas consistently lost value looking into the purported disclosures made in the emailand that there was no sight to the board of Tata Sons. Apart from this the regulator isof profitability neither were also keeping a very keen eye on the price movements andthere any turnaround trading activities of the listed entities of the Tata group,strategy and hence it required that the production of the which are over two dozen in number and have seen acar be shut down. He further went on to add that it was decline in value over the trading sessions after the surpriseonly “emotional reasons” that have stopped them from ouster of its chairman after only four years in charge. Soontaking this decision. His scathing attack did not stop there after the Q&A from the Stock exchanges, the grouphas he further insinuated ulterior motives of Mr. Tata in companies of Tata Sons have filled reports clarifying themcontinuing with the Nano production by stating that that the accounts are in order.shutting down Nano would stop supply of Nano gliders toanother entity that makes electric cars in which Mr. Tatahas a stake.In the aftermath of the sacking the Tata Sons have filedcaveats in the Bombay High Court, to ensure no ex-parteorders are passed against them such staying the sacking orany other similar orders.Mr. Mistry’s email to the Tata Sons Ltd. board also allegedabout how the articles of association was an obstruction inhis ability to function freely, and also that the company,which is valued at INR 1.74 lakh crore, could have apossible write down of INR 1.18 lakh crore. LEGAL ADVISORS As per reports the Tata Sons are being advised the law firms Karanjawala & Co. and Shardul Amarchand Mangaldas, with briefings being done to seniors – Harish Salve and Abhishek Manu Singhvi. Cyrus Mistry on the other hand has turned to Desai & Dewanji for advice with senior counsels Iqbal Chagla and Janak Dwarkadas being briefed, former partner at J Sagar Associates, Somasekhar Sunderesan is also being briefed. The stage is thus set for a mouth-watering legal battle involving the who’s who of the legal industry representing both the parties, yet whether there will be a legal battle is yet to be seen. Mr. Mistry is yet to file a case against Tata Sons, although counter caveats have been filed by him.10 Issue 22

COVER STORYTHE TATAS AND THE PRIME MINISTER OFINDIAAlthough Mistry has been removed as the Chairman of TataSons, the holding company for the Tata group, he stillremains on its board. More significantly, he is theChairman of various Tata group entities like Tata Power(Chairman), Tata Global Beverages (Non-ExecutiveChairman), Tata Steel Ltd (Chairman), Tata Motors (Non-Executive Chairman), Indian Hotels Company Ltd(Non-Executive Chairman), Tata Chemicals Ltd (Chairman),Tata Consultancy Services (Non Independent, Non-Executive Chairman), Jaguar Land Rover Automotive Plc(Chairman).The Tata trusts hold a majority of the shareholding – closeto 66% -- in the closely-held Tata Sons. However, theirshareholding in their other listed firms is much less.News18 parsed through publicly available documents of MISTRY REMOVED FROM THE BOARD OFsome Tata firms for a closer look at the shareholdingpattern: TATA CONSULTANCY SERVICES• Tata Steel: 32% controlled by promoter and promoter Tata Sons Ltd has removed Cyrus P. Mistry as chairman ofgroups (Tata trusts and Tata companies), 9% by Unit Trust Tata Consultancy Services Ltd (TCS) and sought to replaceof India, 13% by Life Insurance Corporation. him as a director of the software services provider as the fight between the holding company and its former• Tata Motors: Promoters control 33% while UTI has chairman (and significant shareholder) enters a new4.36%. phase.• Tata Chemicals: Promoters control 30%, UTI has 14% Tata Sons, which has a 73.26% stake in TCS, nominatedand LIC has 3% Ishaat Hussain, a Tata group veteran, as the interim chairman of the company with immediate effect. Thus,Now, if it comes down to a boardroom battle at each of Mistry ceases to be chairman of the TCS board, thethese companies, the promoters, i.e. Tata, will need the company said in a stock exchange statement on Novembercooperation of other shareholders. Getting the 10. Separately, Tata Sons has requested a shareholdergovernment to lend a sympathetic ear to its cause could be meeting of Indian Hotels Co. Ltd (IHCL) to pass a resolutionan essential part of the strategy if either group wants the for the removal of Mistry as director. On 4 November,support of the state-run shareholders like UTI or LIC. IHCL’s independent directors unanimously backed Mistry’s board position as chairman.Tatas are also said to be looking up for potential buyers ofthe Mistry’s stake in case they become available for The divorce between Ratan Tata and his once blued eyedbuyout. son has thus not been particularly beneficial for the company and as the now former chairman has claimedTATA GLOBAL BEVERAGES REMOVED “the board hasn’t covered itself with glory”. Regardless ofMISTRY AS CHAIRMAN the fact that whether the dispute goes into litigation or not, in case it does it would be another splash-the-cashTata Global Beverages on 14th November removed Cyrus level litigation with its billings in billions, the suddenMistry as chairman of the company which co-owns and ouster and its aftermath involving the bombshell of anruns Starbucks coffee stores across India, escalating a email sent by Mr. Mistry has all but dented the 148-year-oldboardroom battle that erupted after his sacking as head of company’s reputation of being well managed. The ousterthe $103-billion business empire. Non-executive director bringing into light the Articles of Association whichHarish Bhat has replaced Mistry, the company said in protects the right of family members in the family ownedregulatory filing to the Bombay Stock Exchange (BSE). business further pecks India down the global corporate governance ladder and is evidence enough to prove that though there are sufficient legislations on protecting minority shareholders right yet the same is yet to be protected in substance. Issue 22 11

SURGICAL STRIKESSurgical Strikes Public Transparency v. National Security by Saakshi SharmaO n 30th September, 2016, most leading with every Indian feeling proud of the attack and Indian national dailies proudly showering praises on the Modi Government and the Indian proclaimed that the Indian Army had Army for their bold steps. The attacks sent a strong successfully carried out surgical strikes in message to the world: India is no longer a soft state and shall respond in equal measure to any attacks on its soil.Pakistan in the dead of the night and managed to attack The action was lauded by even the opposition parties and even the other nations of the world were unable to sayand destroy seven terrorist base camps while also killing anything against the step taken by India.all the terrorist present in those camps. This move by the Soon however reports started flowing in that Pakistan had completely denied the occurrence of any such attacks andIndian Army and Government was seen as retaliation to had refused to acknowledge that such strikes had ever taken place. They demanded proof of such an operationthe Uri attacks in which four heavily armed terrorists from India, proof that according to the Indian government was considered sensitive material and not something thatattacked an Indian Army brigade headquarters in Uri, near could be made available to the public. The opposition parties in India saw this as an opportunity to further theirthe Line of Control in the wee hours of the morning. They interests by undermining the act of the government and hence started demanding proof albeit phrasing it aswere alleged to have lobbed seventeen grenades in under wanting to satisfy Pakistan’s authorities while in reality wanting to make the Modi government look bad since theythree minutes followed by a gun battle that ultimately knew that such proof would not be released. The media houses in India started running sensational stories andresulted in the death of 18 army personnel, as reported by debates with some people now questioning the truth of the attacks due to the government’s reluctance to releasethe newspapers. proof. This faction of the people believed that if such strikes had indeed been conducted then the governmentThe Uri incident caused mass uproar in the nation and should have no problem in releasing proof backing theirsent the public into a frenzy baying for the blood of the claims. The age old debate of public transparency versusperpetrators of the Uri attacks. With the government facing national secrets was once again brought to the fore.demands for action every single day, the plan to attack theterrorist camps was formulated based on actionable Since the birth of democracy there has always been oneintelligence received by the appropriate authorities. Thus, bone of contention between the public and theon 29th September, the Indian Army crossed the Line ofControl, where, according to the intelligence, the terroristswere meeting for final briefings before crossing the LoC toenter into India to carry out attacks. The operationinvolved heavy artillery firing, use of hand grenades and84mm rocket launchers to destroy the base camps afterwhich the Indian Army swiftly crossed the LoC again toenter back into India.On the 30th of September 2016 when the news hit thepapers, the nation was engulfed by a wave of patriotism12 Issue 21

SURGICAL STRIKESgovernment and that is the release of information by the the terrorist camps that have been struck are not a secretgovernment that it considers to be sensitive or a national to the Pakistani government and hence their revelationsecret. On one hand is the right of the common man to will not disclose any secrets. In the same way the numberknow about each and every action or decision of his of casualties at each of the seven camps is also obviouslygovernment, while on the other hand is the duty of the known to the Pakistani authorities and hence there is nogovernment is to maintain the safety and integrity of the harm in releasing such information to the public. Thesenation and this may sometimes call for keeping certain people believe that the footage should be edited to theinformation private so as to not compromise the security extent necessary to keep all sensitive information privateof the State. It is extremely difficult to strike a balance but at least some semblance of believable proof should bebetween the two and till date there hasn’t been a released for if nothing else then to nip cynicism against thecomplete resolution of this conflict. attacks in the bud.In the present case, the government, as well as a majority Some people, especially the opposition parties in theof the citizens of India, has said that the video recordings Indian political scenario are using the government’sand live footage of the surgical strikes cannot be released reluctance to raise question on the strikes. One view thatas they will lead to the revelation of the strategies used by has been taken is that maybe the targets hit were notthe army and hence render such missions obsolete in the particularly significant from a military standpoint andfuture. Also, it will lead to the identification of the men hence releasing their details might take away from thepersonally involved in the attacks which might put a target benefit that accrues to the ruling party from these strikeson their backs. It is after all the duty of the nation to in the next elections. Another view is that even if not forprotect its army men as well. Also, no country would like to the satisfaction of the Pakistani government, the Indiandivulge information about its military tactics, weapons as government is responsible to its own citizens forwell as points of entry into the enemy territory. The release information on its actions. Every citizen of a nation isof such data is like a suicide mission, like giving the enemy entitled to be made aware of the actions of theircheat codes to win the next war. The strategic advantage government and the foreign policy being pursued by themand intelligence gathered through such operations shall be and hence if nothing else the demand for the footage byrendered useless and will cause irreparable damage to the the India citizens should be honored in view of theefforts of the government and the army to eliminate all government’s fundamental duty to provide informationthreats to the security of the State of India since the enemy about its actions to the citizens.state shall take all necessary precautions to avoid the re-occurrence of such an event. Whatever view one may take regarding the surgical strikes, the fact that such surgical strikes were conducted marks aThere is also the argument that the fact that Pakistan is paradigm shift in the way India deals with terror threats.refuting the occurrence of such attacks should come as no Considered a soft state up until now that did not do muchsurprise since no sovereign will ever agree to the fact that after a terrorist attack, these strikes have shown that Indiaanother country entered upon its territory and carried out is no longer shy of taking bold steps to ensure that itssuch operations without them ever finding out, no matter sovereignty and safety do not come under attack, and willwhat the truth is. Such people consider this a tactic being no longer take such threats lying, but is prepared to takeemployed by Pakistan to get hold of the military strategies the requisite military action to avenge as well as preventand loopholes exploited by the Indian Army so as to any more threats to the nation and its citizens and isfurther fortify their borders and prevent such attacks in the something that every Indian should be proud of.future. It is also seen as an attack on the credibility of theIndian claims since they are fully aware that the Indiangovernment will refuse to release such data and hencethey are hiding behind this reluctance to deny theoccurrence of these strikes. People have also time andagain brought up the fact that a similar operation wasconducted by the United States of America to capture andkill Osama Bin Laden on the Pakistan soil and no proof ofthe same was provided in the name of State secrets. Sincenobody questioned the validity or occurrence of thosestrikes, the same should be followed in the current case.Coming now to the other side, there is a group of peoplethat believes that since the occurrence of the strikes hasbeen called into question, the government ought to beheld accountable to the public and should make public allsuch information that does not endanger nationalsecurity. Arguments have been made that the location of Issue 21 13

Religionas ourStrengthby Shreyan AcharyaRELIGIOUS SENSITIVITIES forced conversion, honour killings, etc. The Framers of the Constitution envisioned that the right to profess,The undivided India had undergone a long enduring battle propagate and practice any religious belief to be aagainst the tyrannical rule of the British to attain complete Fundamental Right, but they also limited its reach underfreedom. Different people from different beliefs marched “reasonable restrictions”. The Hon’ Supreme Court ofunder the same flag of freedom. The British imperialist India, acted as a true Guardian of the Constitution, bymade every possibility of drawing the line and exploit the safeguarding the Fundamental Rights of the citizens. But,religious diversity, but the freedom movement did not we in a progressive society, must have a broader thinkingtremble against the evil doers. Unfortunately, the freedom to value, safeguard and cherish every religious identity offrom the shackles of the century old rule gained on the our own peers.lines of Partition. The British managed to demarcate thecountry on religious ideologies resulting into a bloodbath POLITICAL IMPEDIMENT AGAINSTand massive migration. RELIGIOUS REFORMSEven after the gruesome bloodshed, India retained its The democratic institution formed in 1950 with thediversity. The Framers of the Constitution cherished the promulgation of the Indian Constitution led to the rise of aprinciples of secularity by enacting the provisions ensuring vibrant pluralistic society. But, unfortunately, the dreamsfreedom and protection of every religious belief. The of the freedom fighters were not entirely fulfilled. Ideally,visionary text, called the Constitution of India, freed the the independence struggle was led to establish a freepeople from oppression and exploitation on religious lines. society with different sects of people living harmoniously.But, the dawn of a reformed and progressive democracy, This vision hampered due to frequent politicalbear the brunt of religious oppression. The Casteism disturbances. The Britishers cannot be blamed in entirety,amongst the Hindus, Unequal rights of the Muslim Women, it was the fight of the power-hungry politicians that led tothe rift between Hindus, Muslims, Sikhs and Christians, the biggest nightmare of Partition. The Partition not onlyViolent forms of discrimination against the Minority, etc led to the loss of large scale lives, but also led to heavyhad acted as a stigma to this progressive society. There are economic losses. It jeopardised our growth as apractices abolished and condemned, but there prevalence progressive nation, as the scars of partition are still alive inis still rampant. Taking the note of the current scenario, many hearts pulling us back to those times. Not only, thereligious sensitivities in the form of attacks on Churches,14 Issue 21

RELIGION AS OUR STRENGTH episode of 1947, there are slavery be their own masters. But, Pakistan lost its tracks many other instances due to orthodoxy and outmoded customs. The blasphemy where the lackadaisical laws rigidly followed has made the state intolerant to free attitude of the legislators speech and often religious extremism has taken a violent marred religious reforms. turn. Minorities communities of Pakistan such as Hindus, Such was the incident after Sikhs, Christians, Ahmadis have suffered irreparable losses the Hon’ Supreme Court of both of life and property. India too is no indifferent from its India, allowed neighbour. Religious intolerance have often reported in the maintenance to a Muslim country, but fortunately with the true guidance of woman under the purview eloquent policy makers and public spirited individuals, of the Code of Criminal India has somehow managed to abolish the customs Procedure. The following considered to be arbitrary in practice. observation was made in the Shah Bano judgment, This above comparison can be further highlighted with the which many public-spirited help of two case studies. Firstly, the issue of coparcenary individuals viewed as a was duly addressed. Before the year 2005, the women reformative judgment were not considered to be coparcenaries which entitle freeing the Muslim women them of intestate property. But, this provision of the from the exploitation. But, respective statute was duly revised, and after careful in the contemporary India, deliberations an Amendment was brought into effect where religious practices, entitling them over intestate property as coparceners. The even if orthodox and Amendment not only empowered the Hindu women of exploitative are cherished self-dependency, but equally entitled them the right to say over individual freedom in the family, moreover the right to existence often taken and liberty. The country away under patriarchy mindset of the society. Secondly, by witnessed mass agitation the Hon’ Court taking a bold step as taken in the Shah from the Muslim orthodox Bano Case to grant entry to the women in the Haji Ali sects, claiming it to be an Dargah. This decision extended equal rights to preach to impeachment in their the women. The judgment was widely applauded, but alsoreligious affairs. The, then Government, despite of attracted condemnation from the orthodox sections of theupholding the visionary judgment, followed the society. The Hon’ Supreme Court of India has laid the testappeasement policy that completely destroyed the for “Essential Religious Practice” to determine whether theobservation, and the following judgment of Daniel Latifi practice of the religious sect is protected under Article 26overruled the Shah Bano Judgment. This political move to of the Constitution of India. The ERP is although notretain the vote did not only pulled back the women back defined under the Constitution, but have been interpretedinto the shackles and state of oppression, but also caused on several occasions by the Apex Court. The decision in thereligious enmity. The demolition of Babri Masjid not only Haji Ali case or the reformative amendments, bothfuelled the fire, but also led to the nationwide riots leading indicates that India still embolden upon the principles ofto many deaths. The issue of Ramjanmabhoomi is pending equality and secularity.before the Hon’ Court, but it is upon us as future leaders bycomprehending upon the issue and evaluate the necessity CONCLUSIONof a Mandir or Masjid or rather something more valuable tothe needy people with the common amicable efforts of Swami Vivekananda called the world as one big family, soboth the communities. Whether the issue of maintenance we as Indians must also consider ourselves as one family.or Ramnjanmabhoomi or many other current issues, the The family that lives together collectively cherish thecollective effort is required to amicably resolve these ideals, and resolves the disputes. Therefore, we as Indiansobstacles which will only fulfil the vision of our forefathers, not only aim to protect our interest, but also selflesslybut will also lead us to a more fairer, free and reformed protect the interest of the citizens belonging to differentsociety. sects. A collective voice must be raised against any discriminatory practice or policy. We must endeavour toA NEW DAWN OF THE 21ST CENTURY bring a change to the society. Every individual must strive develop a far-sighted goal of leading India to a greaterIndia and Pakistan started the race to establish their own path. Our religious diversity must be indicated not as ouridentities from the same starting point. Nations are made weaknesses which can be exploited by anyone, but as ourof its people. Both the nation before independence strength that brings us together against all odds. And totogether fought the arbitrary and tyrannical regime. The uphold this, any lapses must be avoided to correct the illsgoals were common i.e. to attain complete freedom from prevalent in any belief. Issue 21 15

DATA BREACH IN INDIAN BANKSData Breach in Indian Banksa Master Theft or a Grand Fiasco?by Shubham Patel bank policies, to return the money when default was by the bank or any third party, the amount lost would beTHE INCIDENT(S) returned to the people who lost it. Though the banks are prima facie admitting that the breach has occurred theyThe recent times saw one of the biggest breach in security deny that their systems were affected.and information breach (read theft) in Indian scenario,about 3.2 million card holders suffered from this breach. Though the recent happening may seem new, they are not;The alleged breach is said to have occurred from the the underlining fact is that this kind of theft/breach is theHitachi Payment Services systems, which were infected affairs of the day. Though not every incident is reportedwith malware which collected and store the personal data and certainly is not of the scale as such, there is noincluding the card details and PIN of the card, using which denying to the fact that they happen, and usually end as afurther frauds were committed in various locations in US tussle between the Bank and the victim.and China. The Hitachi Payment Services serve as the ATMnetwork of Yes Bank and several other QUESTIONS THAT NEED A LOOKThe victims of this breach were spread across various There are some unanswered question that needbanks, both Private and Public Sector; and different Debit consideration; firstly breach is alleged to happen betweenCard service platforms. Bank includes the likes of State the months of the May and July, what took this much timeBank of India, Yes Bank, Axis Bank, ICICI Bank and other, for the breach to come in front?whereas 2.6 million cards belonged to Visa and MasterCard platform and about 6 lakhs from RuPay. [Sachin The breach took place somewhere between May and JulyDave, Saloni Shukla; The Economic Times, Banks reboot and the information came in latter parts of the month ofsecurity, some to refund money to customers, Oct 21, October when the banks (specially SBI) started to send text2016]. State Bank of India alone blocked around 6.2 lakh messages to its customer asking them to change the PINsATM cards. The banking sector responded by sending and issuing of new debit cards, the core for this delaymessages to the customers who probably would have however lies in the non cooperation among the differentbeen affected by the breach urging them to change their banks and how they failed to share the information withPIN, get their ATM cards blocked and said that the new other banks, which ultimately lead to this fiasco.debit cards would be issued against them. A total sum ofaround ₹ 1.3 crore is said to be lost but, according to the It is not the lack of the institutions which lead to this16 Issue 21

DATA BREACH IN INDIAN BANKScondition, there are institutions which were setup to look WHAT NEEDS TO BE DONEinto the cases of cyber attacks, namely Institute forDevelopment and Research in Banking Technology There is a need calling for changes in the present scenario[IDRBT], Information Sharing and Analysis Centre [ISAC] if the incidents like these are needed to be controlled andand banks have Security Operating Centers [SOCs]. But the contained in future.lack of vision and mutual coordination lead us here, eachbank which received the complaints treated them in 1. Need to strengthen the SOCs and mechanism of earlyisolation and the same was dubbed as fraud and not detection: There is no denying to the fact that withforwarded to the ISAC and so on, and there was no evolution of technology, banking is also changing andconclusive prior alert. When it was realized that these were becoming more technologically equipped. But at the samenot stray incidents, the breach was already done. Most of time, the number of hacker willing to get hold of thethe SOCs are understaffed and don’t employ automated information is rising too, there is a critical need tosystems for detection and reporting of threats. [The empower SOCs and other institutions to deal with theseScroll.in, India suffered a massive debit card data breach treats. There is also a need to make it compulsory for thebecause no one connected the dots]. banks to have fully functional SOCs which would be bound to share information of such suspected breaches, as theThe second question which must be raised that why there present case arose due to lack of proper sharing of info.was no prompt disclosure of the same? 2. Strict laws making it mandatory to inform about breach:Though it can be expected that a bank, or any institution The USA and the EU had these laws from long time andwhich has data of a person and consecutively loses it makes it mandatory to inform about data breach. Whereaswould not like to tell the customers that it was unable to though there is a fundamental right of Right to Privacy, butkeep their data safe, but at the same time the customers there is no framework which necessitates informing abouthave a right to know about what is happening with their the breach of data. The time calls for the need of a lawinformation, the Indian banks though tried to keep this which makes it compulsory for a corporation to informedsensitive information about data breach and willingly the concerned parties about the date breach. This wouldchose not to disclose it to the concerned parties, which for ultimately lead the corporations to come clean with theobvious reasons is very alarming. [Javed Anwer, India efforts they put in to secure the private data of their customers and thus ultimately in development of even more secure systems. 3. Awareness Programs: The breaches of this kind are exceptions, what is common is the breach that happens usually involving a single person or a small group of persons. Most of such small scale breaches are done using some external machinery which can collect data in some form or other, most of those devices can be identified easily as they are not regular components of the ATM device. There is a need to make it compulsory for the banks to put up tutorials or some other forms to inform the customers to watch out for such devices when they use the ATMs. This simple exercise can help in reduction of the small cases which happen more often.Today, 32 lakh bank cards hacked: India needs data CONCLUSIONbreach disclosure law and needs it now, Oct 20, 2016]. This story may be new in terms of the scale of the numberThe data that was stolen/ over which breached occurred, of people who were affected, but is a scene of almost everybelonged to the customers of the bank; it was their private day. Every organization has its own version of the story todata and every happenings related to it need to be tell, the banks points that there is no flaw in their systemsconveyed to them, instead of the cryptic text message, and the breach was in Card industry, the Card platformswhat sending of those message can lead to is shifting of are saying that their systems are secure and no breach wasblame that the customer receiving the text did not done there.complied with it and then the mistake on part of the bankand others could easily be attributed to the victim himself. At the same time it must be remembered that the breach[Sachin Dave, Saloni Shukla; The Economic Times, Banks could have possibly been avoided if the institutionsreboot security, some to refund money to customers, Oct designated for the work of keeping check showed more21, 2016]. cooperation and opted a broad way of looking at things. In the case even if after all care the breaches do happen then the corporations involved should be made to behave in a much proper manner, at least in disclosing the customers affected about what has happened. Issue 21 17

The FlipSide ofSimiEncounterby Vaishaki MuddanaA n encounter is a generic word used in India, On 31st morning around 8-9AM, one Naresh Pal who is an to label extra judicial killings done either by old farmer and a kirana shop owner has spotted the SIMI police officers or by the Army Personnel. In terrorists and has reported to the police that there are the past, encounters have been very rare only suspicious men in the Khejra Devi Village which is only about 10-15 kms from the Bhopal Central Jail. As soon asused in special cases where the situation has become the police received the information they reached the spot where the terrorists are to be seen. Meanwhile, the localcomplex or in case of self-defense, but from the past two village people started following the terrorists who started climbing hillock by which the police have arrived. By 10:30decades i.e., from 90’s onwards, the police officers have AM the police have surrounded that hillock and started their operation. Within an hour the operation has endedencountered many people in the camouflage of extra and all the eight SIMI terrorists have been encountered. [Bhopal jailbreak: From escape to encounter of SIMIjudicial killings which have raised doubts in the minds of activists By Milind Gahtwai, Dipankar Ghose]the people as to the legality of the encounters done. Many videos have been taken and when spoken with many village people in regard with the incident, doubts haveEveryone has innumerable questions in their mind as to begun to rise in the minds of the people. As per the version of the police officers they claim that they acted in self-whether the encounter is real or a fake encounter? What is defense when the terrorists fired at them, but the villages say that apart from the sharpened weapons which havethe cause behind fake encounters? been made out of utensils the terrorists dint possess any guns in order to fire. The villages made statements that theWHAT IS A FAKE OR STAGED ENCOUNTER? terrorists have tried to throw rocks but they dint see any firing on part of them. They also claimed that they heardIn the circumstances where the police officers or the Army sounds of firing but thought that they were coming fromofficers had to kill the suspect either when he is unarmed the police officers who are on the other side of the hillock.or in the custody in the name of self-defense is known as This has to be ambiguity will be cleared only after theStaged or Fake encounter. In these situations, there is a investigation has been done.high chance where the officers themselves plant theweapons near the suspects so that they can corroborate In one of videos it was heard that the 5 terrorists werethe encounter has taken place in self-defense. trying to talk to the police officers and the 3 of them have been trying to escape when the police people were asked• On the night of Diwali, eight terrorists belonging to to surround the hillock from all the sides. While this isStudent’s Islamic Movement of India (SIMI) which has been going on it was shown in the video that a gunshot hasbanned, and who are facing charges (undertrails) for many been fired. Question arises here as to why when they werecrimes such as bomb blasts in 2008, cases of looting and trying to talk the gun has been fired?dacoity across many states have escaped the BhopalCentral Jail in Madhya Pradesh. Out of the 8 terrorists 3 of In another video it was shown that a police officer has shotthem have been previously involved in the jailbreak in a terrorist from a very close range though it cannot beKhandwa in 2013.This incident has occurred around 2-3AM made out from the video whether the terrorist is alive orin the night. The officials have said that the SIMI terrorists not. But even if one of the terrorists is alive, will it not behave used utensils such as steel plate and spoons as beneficial to the government to question him and unravelweapons in order to escape the prison. After breaking the whole conspiracy as to who is behind it as the escapethrough the cell barracks, they killed a police guard cannot be possible without an insider help, as it has come“Ramashankar Yadav” who is on duty of surveillance that to the notice of the authorities that the terrorists possessday, tied and gagged an other guard who came after blankets more than they were entitled to and in a prison ofhearing the commotion which is being taken place. After high security and tight rules where each and everywhich, using the blankets and wooden logs, they have information is recorded it is highly impossible to escapescaled a 10 feet wall outside their cells and the outer wall, without the help.which is of 35 feet height and a wall of 20 feet heightseparating the high risk ward. [Piecing Together AnEncounter BY P. K. HORMIS THARAKAN]All through this operation of escape by the terrorists noneof the guards even those who have been assigned on thetop of watchtower have noticed their escape. Almost afteran hour of their escape the authorities have noticed theirescape and started the search.18 Issue 21

THE FLIP SIDE OF SIMI ENCOUNTERIt is also important to note that the terrorists have escaped Section 157 and 158 of Criminal Procedure Code, 1973.around 2-3AM and the police got the information as totheir spotting at around 8AM. There have been  An independent CID team to probe into the deathapproximately 4-5 hours for the terrorists to escape and which has to meet minimum eight requirements of theeven if they walk they could have easily covered more than investigation such as identifying the victim, to recover10-15 kilometers. This remains a big question to the evidentiary material, fingerprints are sent for chemicalpeople and also as to why all the terrorists have stayed analysis etc.,together instead of dispersing after their escape, whichwould have made the search of the police more difficult?  There has to be a compulsory magisterial inquiry under Section 176 of Criminal Procedure Code, into all the• After raising of all the doubts, when the incident of encounter cases.encounter should have been a glory moment to the policeauthorities they are on the stand to take a defense so as to  The information in regard to the encounter has toprove that the encounter is legal. The authorities relied be informed immediately to the National State Humanupon Section 46(2) and 46(3) of Criminal Procedure Code, Rights Commission or State Commission.1973 where it says that if and when a person tries toforcibly trying to resist the arrest, or evading the arrest,  The injured victim must be provided with medicalthen such officer who is empowered by the authority can aid and the statement given by the victim has to beuse all the means necessary to effect the arrest, including recorded by the Magistrate.causing of death in cases where the person is accused ofan offence punishable by death or life imprisonment.[  All the documents such as FIR, Panchnamas, andPiecing Together An Encounter BY P. K. HORMIS Dairy entries have to be sent to the concerned courtTHARAKAN] without any delay.In the past two decades many fake encounters such as  A full investigation report under Section 173 ofIshrat Jahan’s, Sohrabuddin’s, Manipur killing by the Army Criminal Procedure Code has to be sent to the competentpeople, have taken place and in each of the cases the court court.has ordered a judicial probe. With the raise in the allegedencounters there has been a demand for judicial probe to  In the event of death, then the next kin of thebe done where a succession of the Supreme Court criminal must be informed.judgments show that “the law is profoundly, even fatallyloaded against the police officers who were found guilty of  Reports in regard to the encounters have to befake encounter” sent bi-annually to the National Human Rights Commission in a set date and in a set formatIn “Prakash Kadam v. Ramprasad Vishwanath Gupta”[(2011) 6 SCC 189] the Supreme Court held that “ in cases  Suspension and Disciplinary action against thewhere a fake encounter is proved against policemen in a police has to be taken in case of wrongful encounter.trial, they must be given death sentence, treating it as therarest of rare cases. Fake “encounter” is nothing but cold-  Subject to the Rights under Article 20 of the Indianblooded, brutal murder by persons, who are supposed to Constitution, the police officer must surrender his weaponuphold the law.” for investigation.In “ Satyavir Singh Rathi, Assistant Commissioner of  Police officers families must also be informedPolice v. State of Central Bureau of Investigation” [2011]where the police people have alleged surrounded a car  For all the officers involved in the wrongfuland indiscriminately fired at the occupants in the until encounter, there would be no out-of-turn promotions orthey are dead the court held that the police officer were gallantry awards shall be conferred.liable under Section 302 read with section 34 of IndianPenal Code, 1860 and the court has also reprimanded the  If the victim’s family finds out that the abovestate for not commencing the investigation. guidelines have not been followed then in that case they can complaint to the Sessions Judge and he will takeThis judgment has become a precedent for the following cognizance of the matter.cases and when the case of a fake “encounter” has comebefore the court in “People’s Union for Civil Liberties v. In “Extra Judicial Executive Victims Families v. Union ofState of Maharashtra and Ors.” [2014] The Supreme Court India”[2013] the Supreme Court has held that “it does nothas laid down the guidelines to prevent fake encounters by matter whether the victim was a common person or apolice officers. The Guidelines are: militant or a terrorist, nor does it matter whether the aggressor was a common person or the State. The law is Whenever the police obtain any intelligence or tip- the same for both and is equally applicable to both. This isoffs in regard to criminal movements or activities of the the requirement of a democracy.” [SC verdicts talked toughcriminal, then it has to be recorded either in the written against security personnel on fake encounters byform or in an electronic form. KRISHNADAS RAJAGOPAL] If based on the intelligence, an encounter takes In Bhopal encounter case, with so many doubt arising afterplace and the police use fire arms and on account which the videos have been viewed and on the overall escape, athe death takes place an FIR has to be registered by the probe is to be conducted by the Retired High Court Judgepolice and that has to be forwarded to the court as per “Justice S.K Pandey” and the whole details of the encounter will be confirmed when the National Investigative Agency completes its investigation. If the videos are confirmed to be true then the authorities have disobeyed the guidelines of the judgments. Issue 21 19

SURGICAL STRIKESNo Detention Policy in Schools by Vaibhav SharmaT he quality of education particularly at the order to provide statutory backing to the said primary and the secondary levels, is of great Constitutional Amendment. The Section 16 of the Act significance for the overall development of provided that no child admitted in a school shall be held the child. The policy of 'No Detention' is back in any class or expelled from school till the completion of the elementary education. The legalbeing used in India till the age of fourteen years for provision ensured that no student till the age of fourteen years could be made to repeat the class notwithstandingimparting the Right to Education (RTE) across the nation. the grades he attains in the said class.The said policy is being criticised for resulting in poor The policy of 'No Detention' was implemented in the nation from 2010 had the objective of ensuring nolearning levels amongst the students. The 64th meeting of dropouts from the education system till the elementary level. It was adopted because of the fact that a majorthe Central Advisory Board of Education (CABE) on 25 reason for the non-completion of the elementary education in India was the inability of the student to clearOctober, 2016 dwelled into the question of scrapping the the yearly examination for the promotion to next standard. The system of examination was scrapped till the eighth'No Detention Policy'. The meeting was attended by the class and a new Continuance and Comprehensive Evaluation (CCE) model was adopted. The CCE modelrepresentatives of 28 states and union territories along compromised of various tests to be conducted every month with the division of the academic year into fourwith the heads of educational boards. The decision to terms. The marks are not allotted to the students, who were only given grades for their performance. The mostreview the working of the 'No Detention Policy' was taken important aspect of this system is that a student couldn't fail under the CCE system even if he attains the lowestby the Board following the requests by multiple states to grade. The new system laid stress on the training of the teachers to ensure fair evaluation and betterscrap the flawed policy framework. understanding of the concepts. It was also in tune with theNO DETENTION POLICYThe 'No Detention Policy' is part of the educationalframework which is being followed throughout the nation.It was done in pursuance of the Right to Education which isnow a fundamental right of every citizen of India. The 91stConstitutional Amendment Act, 2002 inserted the Article21 A into the Constitution which provided the right toeducation to every child from six to fourteen years of age.The government passed the Right to Education Act, 2009 in20 Issue 21

SURGICAL STRIKES global educational system where the Prakash Javdekar who presided over the meeting said that emphasis is given on basic understanding the Centre is looking to amend the Right to Education Act, and aptitude building, and not mere rote 2009 to grant the power to the respective state memorisation of the facts. governments to decide about the abolition of the system. Another important decision taken at the meeting was ANALYSIS OF 'NO DETENTION about the codification of the learning outcomes and to POLICY' include them in the RTE rules for equitable evaluation throughout the nation. The decision is being seen as part The Policy of not detaining a student till the of the Union Government plan to introduce 'New elementary level has been in place from the Education Policy' in the nation to address the problems of past six years. But the system which was poor learning levels and lack of basic understanding even primarily aimed at addressing the problem at the secondary levels. The views of the various states of high dropout rate of students also suffers were taken into account and decision to grant the freedom from grave discrepancies. It is being blamed to the provincial governments was taken in order to cater for the poor learning levels amongst the to the sentiments of the state governments. students. The Report of CABE Sub- Committee on the 'Assessment and The decision to grant freedom to the state governments as Implementation of CCE and No Detention regards the scrapping of 'No Detention Policy' was in Provision' shows that the Policy is league with the recommendations of the T.S.R. responsible for the declining learning levels Subramanium Committee which was formed by the due to the lack of assessment till the government to suggest reforms in the education sector. elementary level. The fact that The Committee in its June 2016 report highlighted the examinations have been scrapped and a glaring lacunae in the existing system which have led to student cannot be detained due to poor the deterioration of the quality of education that is being academic performance has degraded the imparted to the 33 crore students till the elementary level. level of education. It has also culminated in The recommendations included that the 'No Detention low motivation levels amongst the Policy' should be continued till the class V. But for the students. The healthy competition between upper elementary level, the Committee suggested that the the pupils have been stifled by it. The system of detention should be restored subject to thechildren have not real incentive for working harder for remedial coaching for the weaker students. It also soughtbetter marks. The report also blames the policy for low for two extra chances for the students to clear theaccountability of teachers especially in the state owned examination for reaching the next standard. It alsoschools. It has been seen that the teachers in various advocated the option of the on-demand examination forschools particularly in the rural areas, don't teach the the higher classes. The proposed amendments are beingstudents at all due to no fear of their result being seen as vital panacea for the ailing education system insubjected to the scrutiny of examinations and being which the students suffered from poor communicationreprimanded for poor results of their students. and learning abilities.The various academics have pointed out that the system CONCLUSIONis the root cause of the poor quality of elementaryeducation in the nation. They argue that the system has The Union Government has recently decided to give theled to lack of pedagogy in the schools due to teachers freedom to the state governments to decide as regards thebeing absent from the classrooms. The main requirement scrapping the 'No Detention Policy'. The policy has led toof the CCE model was to have specially trained teachers to dismal learning skills and low accountability of theenhance the learning process. But the government has teachers towards the students. The step is seen as afailed to train the teachers and the pedagogues have also starting point for the introduction of the 'New Educationadopted a lacklustre approach towards the system. The Policy' for improving the elementary education level. Theintellectuals have urged the need to recognise and reward abolition of the policy will help in addressing the problemthe high performing students for enhancing learning levels of poor understanding levels and will foster healthyand basic understanding of concepts. competition amongst the students. It will also prepare the students for the tougher entrance examinations whichREVIEW OF POLICY BY THE GOVERNMENT they need to face after the senior secondary level in order to secure admission into colleges. The need of the hour isDuring the recent meeting of CABE, the discussion on the to change that present system of No Detention for thescrapping of the 'No Detention Policy' took place. The benefit of the pupils and lay stress on basic understandingUnion Human Resource Development (HRD) Minister of concepts in order to train the students for tougher challenges ahead in their lives. Issue 21 21

FROM THE COURTROOMby Shashank Mishra

FROM THE COURTROOMMUNICIPALITY, BEING A The Court held that the fact that a resolution has been passed by the Executive Committee of the Municipality orTRUSTEE, MUST ENSURE a letter of allotment is issued by the Municipality, cannot legitimize the occupation of a public property in absenceTHAT PUBLIC STREETS ARE of any formal lease deed executed in that behalf and more so in respect of a land falling within the public street.NOT ENCROACHED UPON It was argued that the direction given by the Gujarat HighCase - Asikali Akbarali Gilani v. Nasirhusain Mahebubbhai Court to take back the possession of the concernedChauhan, 2016 SCC OnLine SC 1122, decided on 07.10.2016 property and remove illegal occupants therefrom and to demolish the unauthorized constructions was inThe Apex court while dealing with a case where around 869 derogation of the Section 258 of the Act of 1963. The courtleases were given by the Municipality to different persons while rejecting the said contention said thatmunicipality iswithout any authority of law and in absence of any formal obliged to restore the public property as it had originallylease executed in favour of concerned persons and without existed, if such direction is issued by the Collector andthe prior approval of the State Government in terms of hence, the High Court’s direction is not in derogation of theSection 65 of Gujarat Municipality Act, 1963, observed that said provision; and particularly when the Collector ismunicipality being a trustee should ensure that public expected to exercise that power by following due process.streets are not encroached upon. Issue 22 23

FROM THE COURTROOMSC DIRECTS J&K HIGH COURT The Supreme Court has set aside an order of J&K HighTO RECONSIDER BAN ON Court which had banned private practice by governmentPRIVATE PRACTICE BY doctors. The court remanded the matter to the high courtGOVERNMENT DOCTORS by observing that the rules related to medical practice in the state were not challenged before the high court. EarlierCase - State of Jammu & Kashmir v. Vichar Kranti a writ petition was filed challenging a government orderInternational, 2016 SCC OnLine SC 1160, decided on dated August 11, 2005, issued in the Education21.10.2016 Department that “directed that no official shall undertake any activity/assignment, including teaching in a private institution or coaching centre, unless permission is obtained from the competent authority to do so”, the High Court in its final judgment quashed the GO and issued a24 Issue 22

FROM THE COURTROOMblanket direction regulating apart from government ratio of 1:5 i.e. for each day of overstay, 5 days of remissionteachers and government medical doctors engaging in would be cut. The petitioner being aggrieved by the prisonself-employment or other activities. punishment contends it to be harsh and that it should be set aside. The Court on hearing the explanation submittedThe Supreme Court observed that the High Court was not by the petitioner, reduced the prison punishment of theapprised of the relevant statutory rules which govern the petitioner in the ratio of 1:3 i.e. for every day of overstay, 3field and the circular, relied on by the high court, had no days of remission would be cut, instead of the originalapplication to government doctors.“The regulation of punishment in the ratio of 1:5.private practice by government doctors is the subjectmatter of separate rules framed by the State Government. LPA AGAINST THE JUDGMENTNeither were those rules under challenge before the highcourt nor did the high court had the benefit of evaluating OF THE SINGLE JUDGE IN ANthe rules before it proceeded to decide the case.” INTERNATIONALThe court also observed that basic issue which requires tobe addressed is the availability of infrastructure and ARBITRATION MATTER ISfacilities in government hospitals across the state ofJammu and Kashmir and the facilities for the treatment of MAINTAINABLE BEFORE THEpatients. The bench also directed the high court to lookinto following issues: availability of adequate DIVISION BENCHinfrastructure in government hospitals; availability ofessential equipment for treatment; availability of staff, Case - Arun Dev Upadhyaya v. Integrated Sales Service Ltd,para-medical and of a supporting nature, Enforcement of 2016 SCC OnLine SC 1053, decided on 30.09.2016conditions of hygiene to secure proper medical treatmentfacilities; availability of essential medicines. The Apex Court in Arun Dev Upadhyaya v. Integrated Sales Service Ltd held that an appeal against the decision ofPRISON PUNISHMENT single judge in an international arbitration matter is appealable to the Division Bench. In the instant case theREDUCED ON question before the court was whether an appeal against the judgment of the Single Judge in an internationalHUMANITARIAN GROUNDS arbitration matter is appealable to the Division Bench or to put it otherwise, whether the intra-court appeal would lieWHERE PRISONER because of the Letters Patent, the Court held that such appeal is maintainable and has to be treated as an appealOVERSTAYED FURLOUGH under Section 50(1) (b) of the Arbitration and Conciliation Act, 1996 and has to be adjudicated within the saidPERIOD parameters.Case - Takku Singh v. State of Maharashtra, 2016 SCC Rejecting the argument that the Letters Patent Appeal wasOnLine Bom 8834, decided on September 22, 2016 not available in arbitration matters and Section 13 of the Commercial Courts, Commercial Division and CommercialThe Bombay High Court while examining the aspects of Appellate Division of the High Courts Act, 2015, the Courtprison punishment granted to prisoners held that the held that Section 13 of the 2015 Act bars an appeal underprison punishment could be reduced on humanitarian Letters Patent unless an appeal is provided under the 1996grounds in case the prisoner overstayed the period Act. Such an appeal is provided under Section 5 of thegranted in furlough. Court while deciding in favour of the 2015 Act where a forum is created, i.e., Commercialpetitioner reduced his punishment who overstayed the Appellate Division. The Letters Patent Appeal could notperiod of furlough leave granted to him, by 93 days, as his have been invoked if Section 50 of the 1996 Act would notwife was not keeping well and had to undergo have provided for an appeal. But it does provide for anhysterectomy. appeal. Section 50(1)(b) of 1996 Act has not been amended by the 2015 Act that has come into force on 23.10.2015.In the instant case petitioner was granted 14 days furlough Thus, an appeal under Section 50(1)(b) of the 1996 Actleave and was released on March 20, 2004, however, he did before the Division Bench is maintainable.not present himself on time i.e. on April 4, 2004 before thejail authorities. As a result he was arrested and broughtback to jail on July 7, 2004. Thus prison punishment wasimposed on the petitioner to forfeit his remission in the Issue 22 25

IGNITING MINDS by Minal Palana Akanksha Sikri

IGNITING MINDSPROCEDURE TO FILE FOR JURISDICTIONDIVORCE IN INDIA A petition for divorce is presented to the District Court within the local limits of whose ordinary civil jurisdiction – i) The marriage was solemnized, or“Brangelina Split!” The news of the most adored celebrity ii) The respondent at the time of the presentation ofcouple getting divorced saddened their fans around the petition resides, orworld. After 12 years together and 2 years of marriage,Angelina Jolie filed divorce against Brad Pitt over iii) The parties to the marriage last resided together,‘irreconcilable differences’, as reported. orNo one but the couples know when the most ‘successful iv) the petitioner is residing at the time of themarriages’ turn bitter and the ‘perfect couples’ part their presentation of the petition, in a case where theways seeking dissolution of marriage. In India, gone were respondent is at that time residing outside that territoriesthe days when being a divorcee was a sort of social stigma. to which this Act extends, or has not been heard of asToday, if either or both the parties to a marriage are having being alive for a period of seven years by those who wouldirreconcilable issues in the marriage, they can file a naturally have heard of him if he were alive.petition for dissolution of the marriage and lead their ownindividual lives after getting a decree of divorce in the A District Court is, therefore, a City Civil Court in an areacourt of law. where it exists, or the principal civil court of original jurisdiction in any other area or such subordinate courtDivorce puts an end to marriage; parties revert back to which has been invested with jurisdiction by a Statetheir unmarried status. The parties cease to be husband Government under a notification issued in the officialand wife and are once again free to marry. A petition for Gazette (Family Courts).divorce can be filed by a husband or wife against anotheror jointly by both the spouses in a court of law. The PROCEDURECourts cannot allow a petition for divorce unless a periodof one year has elapsed since the solemnization of The procedure for filing a divorce is generally regulated bymarriage. This provision comes with two exceptions where the provisions of Code of Civil Procedure, 1908 whicha presentation of a petition of divorce may be allowed discusses the process to file civil suits, though theearlier, which are:- governing Acts also contain provisions regarding procedures for filing a divorce. - If it is a case exceptional hardship to the petitioner, or A petition of divorce must state the facts relating to the marriage like name of the parties, status and domicile of - If it is a case of exceptional depravity on the part the parties, date and place of marriage, principal of the respondent. permanent place where the parties cohabited, place where the parties last resided together, names of the children ofFor instance, incurable insanity may amount to the marriage, if any, with their date of birth and fullexceptional hardship. Commission of matrimonial offences particulars of any prior proceedings between the partieslike rape, sodomy or bestiality, by themselves, amount to a and their outcome. It should state the grounds for seekingconduct of exceptional depravity on the part of the divorce and the relief sought. If the petition is based on therespondent. The terms ‘exceptional hardship’ and ground of adultery, the adulterer should be made a co-‘exceptional depravity’ have been borrowed from the respondent unless the person is dead or his/her name isMatrimonial Causes act but they have not defined it. not known to the petitioner or such other reasons for which the Court considers that he/she need not be made aThe laws governing dissolution of a marriage are different co-respondent.for different religions, however many provisions underthese Acts are common, like jurisdiction of courts for filing A petition of divorce must be verified in the same mannera divorce, procedure for filing a petition, etc. as a plaint is required to be verified under the Civil Procedure Code. Hindus - The Hindu Marriage Act, 1955 Unstamped and unregistered documents have been made Muslims - Shariat Law, The Dissolution of Muslim admissible for the purpose of evidence for petitions forMarriage Act,1939 divorce under Hindu Marriage Act, 1955. Parties do not need to file affidavit for submitting evidence and oral Christians - The Divorce Act,1869, The Indian evidence is admissible.Christian Marriage Act,1872 Parsis - The Parsi Marriage and Divorce Act,1936 Inter-cast/Secular - Special Marriage Act, 1954,The Foreign Marriage Act,1969 Issue 22 27

IGNITING MINDSDIVORCE BY MUTUAL CONSENT Very recently, Susanne Khan demanded Rs. 400 crores alimony from Hrithik Roshan in their divorceIf the husband and wife have been living separately for one case.year or more, and have not been able to live together andthey have mutually agreed that the marriage should be Angelina Jolie got the custody of all six children.dissolved, they can file a petition for dissolution ofmarriage together before the District Court. If the parties Yes! In a divorce petition, reliefs for maintenance oftogether do not withdraw such a petition after six months parties and children and custody of children are alsofrom the date of presentation of petition till the end of 18 sought and dealt with besides ancillary reliefs likemonths after the said date, the Court may pass a decree of damage for costs of the proceedings against thedivorce declaring the marriage to be dissolved with effect parties.from the date of the decree. Such decree must be passedon being satisfied after hearing the parties and aftermaking such inquiry as it thinks fit.GROUNDS ALL ABOUT SURROGACY IN INDIADivorce can be granted on presentation of petition by ahusband or wife on the following grounds against the INTRODUCTION OF SURROGACY IN INDIA:other party: case of a surrogacy transaction, the primary difficulty lies Cruelty in recognizing its exact nature. Some view it as an industry, some as a service or as a contract for certain purposes. The Adultery absence of uniform regulations but the presence of certain regulations which may prohibit such transactions adds to Incurable Insanity the complications of a surrogacy transaction. The centre of Leprosy Venereal disease in a communicable form Conversion to another religion Renunciation of world Presumption of Death for a period of 7 years ormore No resumption of cohabitation between theparties to marriage for 1 year or upwards after passing adecree for judicial separation in a proceeding to whichthey were parties No restitution of conjugal rights between theparties to marriage for a period of 1 year or upwards afterpassing a decree for restitution of conjugal rights in aproceeding to which they were partiesGrounds of Divorce on which woman can seek a decree ofDivorce- Husband has married again or any other wife ofthe husband is alive at the time of presentation of petition Husband has been guilty of sodomy, rape orbestiality since the solemnization of marriage No resumption of cohabitation even after passinga decree against husband awarding maintenance to thewife The marriage was solemnized before thepetitioner wife attained the age of 15 years andrepudiation of the marriage after attaining that age butbefore attaining the age of 18 years.28 Issue 22

IGNITING MINDSa surrogacy transaction is the involvement of a third party. surrogacy, which are sensitive, such as:Surrogacy in India is relatively low cost and the legalenvironment is favorable. In 2008, the Supreme Court of 1. The subject matter of the contract is a human being;India in the Manji's case (Japanese Baby) has held thatcommercial surrogacy is permitted in India with a 2. The object of the contract is to conceive pregnancy bydirection to the Legislature to pass an appropriate Law artificial ways of reproduction which was not yet knowngoverning Surrogacy in India. At present the Surrogacy the society at large;Contract between the parties and the AssistedReproductive Technique (ART) Clinics guidelines are the 3. There is a compensation or monetary consideration toguiding force. Giving due regard to the apex court be given to surrogate mother/gestational mother;directions, the Legislature has enacted ART BILL, 2008which is still pending and is expected to come in force 4. Several ethical considerations surrounding surrogacy transaction; somewhere in the next coming year. The law commission of India has specifically 5. The identity and privacy of the surrogate mother; reviewed the Surrogacy Law keeping in mind that in India that India is an 6. The rights of the parties before, during and after the International Surrogacy destination. The contract including that of the would be surrogate child; need for the, deliberation and adoption of surrogacy as a part of society in general 7. Risk attached to the life/body of the surrogate mother; and legal system in particular is felt by the legal fraternity. 8. Clause with respect to the legal status of the child. DEFINITION: Legally, a surrogacy It is worthwhile to note that surrogacy transactions are being entered into despite not having legal recognition. arrangement has been defined by the Agreements are being made, entered into, being followed Indian Supreme Court as an agreement and are being executed the support of all those involved in whereby a woman agrees to become the surrogacy transaction. There are institutions, pregnant for the purpose of gestating and organizations or companies, which are offering surrogacy giving birth to a child she will not raise, but services by ensuring and providing comprehensive hand over to a contracted party. Often it is surrogacy services including that of: done with intention of entering into a contract, at times the intention of the 1. Legal compliances; parties can be inferred from the transaction. In common parlance, the term 2. Media services and medical operations involved therein; refers to arrangement made between the two parties under which a woman 3. Commercial, taxation and related aspects; (surrogate mother) agrees to (i) to donate the egg and by artificial insemination, carry 4. Selection of or databases of Surrogate mothers willing a fetus in the embryo of her own and give to go for surrogacy services. birth; (ii) to carry the term of pregnancy with the help of fertilized egg. In the case of It may also be noted that some law firms in India have alsosurrogacy, a woman undertakes to bear a child for a started their area of practice providing surrogacy serviceschildless couple and agrees to relinquish all parental rights or ensuring legal compliances with respect to surrogacyat the birth of the child for a payment or other transaction. Surrogacy agreements are being drafted as aconsideration which becomes void for its contravention of matter of legal service from some of the reputed law firmsstatutory enactments, since the contract involves in India.bartering of human lives and also, infringes public policy.As per the provisions of Indian Contract Act, 1872 legal CONCLUSION: Assuming that a surrogacy contract iscontracts can be either, General contract, or SpecialContracts or Specific contracts. However, for them to be legal, if any of the parties to the surrogacy contract fails tolegal, it must satisfy all the requirements of a contract as perform any of the above mentioned steps, then as per thelaid down under the Indian Contract Act, 1872. provisions of the Indian Contract Act, 1872, an action for breach of contract can be initiated. At the same time, if wePROCESS: Therefore it can be seen that surrogacy were to say a surrogacy agreement can never be legal or are invalid, then despite executing a contract, parties canagreements have to be drafted with great care and no longer enforce the same through the courts of law. Thecaution, since there are several factors surrounding problem pertaining to a surrogacy agreement or a surrogacy transaction occurs when any dispute arises, either because of a clash of interests, or non-performance of any conditions or the terms of the contract. When such a dispute is brought before the court, it may not enforce the surrogacy agreement despite the fact it is between consenting parties due to the illegal nature of such a contract. Issue 22 29