Jallikattu on Hold: Supreme Court stays govt notification to allow bull taming – Bhadra Sinha

Supreme Court of India

BullsIn an apparent last-ditch effort to get the nod for conducting Jallikattu after the Supreme Court stayed a central notification, Tamil Nadu chief minister Jayalalithaa on Tuesday asked Prime Minister Narendra Modi to promulgate an ordinance to allow the traditional Tamil sport to be held. — PTI

The Supreme Court stayed on Tuesday a central government notification that paved the way for a return of the banned bull taming sport Jallikattu, effectively scuttling plans of staging the event during Pongal celebrations in Tamil Nadu later this week.

The top court also issued notices to the Centre, Tamil Nadu and other states where the controversial sport is played, days after the environment ministry issued new guidelines that permitted the popular event to go ahead, overriding protests from animal rights activists and the law ministry.

The sport that has been an integral part of Pongal festivities was banned by the Supreme Court in 2014, following demands from rights groups who pointed to animal cruelty and human deaths during the event.

The new norms triggered howls of protests and animal welfare organisations—including the animal welfare board—filed a clutch of petitions in the court.

But the Centre objected to the pleas, saying no fundamental right of the petitioners were violated and questioned the maintainability of the petitions. The court also issued a notice on whether the petitions could be heard or not.

Both the Centre and the Tamil Nadu government assured the court that the new notification underlined safety measures and precautions to be taken during the festival.

Under the rules, permission has to be given by the district collector or magistrate and bullock cart races must be held on a proper track. Bulls, once they leave the enclosure, have to be tamed within a radial distance of 15 metres, the government order said.

The new norms came after a concerted political push by parties in the poll-bound Tamil Nadu, where the banned sport has a strong connection with thousands of people who view it as a part of their culture.

Chief minister J. Jayalalithaa had written to Prime Minister Narendra Modi, backing the sport, which wasn’t held last year for the first time in decades. – Hindustan Times, 12 January 2016

JayalalithaaAfter SC stay, Jaya asks Centre for ordinance to allow Jallikattu

In an apparent last-ditch effort to get the nod for conducting Jallikattu after the Supreme Court stayed a central notification, Tamil Nadu chief minister Jayalalithaa on Tuesday asked Prime Minister Narendra Modi to promulgate an ordinance to allow the traditional Tamil sport to be held.

Recalling that she had requested Modi on December 22 last year to promulgate an ordinance allowing Jallikattu to be held, she said: “Considering the urgency of the issue, I strongly reiterate my earlier request to promulgate an Ordinance forthwith to enable the conduct of Jallikattu.”

“On behalf of the people of Tamil Nadu I urge you to take immediate action in this regard,” she said in a letter to the Prime Minister.

Asserting that sentiments of the people should be respected, Jayalalithaa said arrangements have already been made by organisers all over the state for conducting the bull-taming ritual.

After she had requested an ordinance, the Centre issued a notification on January 7 enabling conduct of Jallikattu in different parts of Tamil Nadu as part of the Pongal festivities, she said.

“On receipt of the notification, circulars were sent to the District Collectors regarding arrangements to be made for the conduct of Jallikattu, strictly in accordance with the conditions and safeguards indicated in the notification. On this basis, arrangements have been made by organisers all over the state for the conduct of Jallikattu,” she said.

As the Supreme Court has now granted an interim stay of the notification, Jallikattu cannot be conducted now, Jayalalithaa had added.

“With the Pongal festivities commencing from January 14, the public in the rural areas of Tamil Nadu have made all arrangements and preparations and are eagerly looking forward to the conduct of Jallikattu as part of the traditional festivities ingrained in the hoary cultural heritage of Tamil Nadu,” she said.

“It is very important that the sentiments of the people of Tamil Nadu, who have a deep attachment to the conduct of the traditional event of Jallikattu, are respected,” the chief minister said while requesting an ordinance to facilitate the conduct of the sport. – Hindustan Times , 12 January 2016

Animal Welfare Board of IndiaAWBI vice-chairman Chinny Krishna

Ram temple work to start this year-end: Dr Swamy – PTI

Ram Temple on the Babri Masjid site after the demolition.

Subramanian Swamy“Swamy claimed that efforts are being made at resolving the issue amicably between Hindus and Muslims so that the temple and the masjid come up on both sides of the Saryu river in Ayodhya. … The issue will be discussed at the two-day national conference in Delhi University on “Shree Ram Janambhoomi Temple: The Emerging Scenario” which would see the coming together of 300 scholars, academics and archaeologists who would discuss legal and other aspects of the Ram Temple.” – PTI

BJP leader Subramanian Swamy today claimed that work on the construction of Ram temple in Ayodhya would start before this year-end and an action plan for that would be unveiled at a conference here on January 9.

He, however, made it clear that the temple would not come up through a movement but only after the court verdict, which he hoped would come by August-September and with the mutual consent of Muslim and Hindu communities.

“We expect the construction work on the Ram temple at Ayodhya to start within the next two-three months and certainly before the end of this year. We will wait for a court verdict and the temple would not come up through any ‘andolan‘ (movement),” he told reporters at the VHP office here.

Asked if the decision was linked to the Uttar Pradesh assembly elections in early 2017, he said, “Rama should not be linked with elections. Rama is a matter of faith for Hindus and construction of the temple at Ayodhya is a commitment of every Hindu.”

Ram Seminar at DU 2016He said if the issue comes up later, it will then be linked to the next Lok Sabha polls.

Swamy claimed that efforts are being made at resolving the issue amicably between Hindus and Muslims so that the temple and the masjid come up on both sides of the Saryu river in Ayodhya.

The issue will be discussed at the 2-day national conference in Delhi University on “Shree Ram Janambhoomi Temple: The Emerging Scenario” which would see the coming together of 300 scholars, academics and archaeologists who would discuss legal and other aspects of the Ram Temple.

Among the speakers at the conference include legal experts, archaeologists and experts, besides historians and Swamy himself. It will be organised under the aegis of Arundhati Vashisht Anusandhan Peeth.

“An action plan will be presented at the conference and government urged to move the court and become a party in the case,” he said, adding, “If government supports us, we will start the construction work on the temple within two-three months”.

Talking about the case, he said, “it is in such a stage that the verdict is likely to come out by August or September this year.”

Swamy when asked about the controversy over the conference at Delhi varsity campus, said it is not a Delhi University sponsored event but an event for which a hall has been rented out and the same is being held on a weekend.

He also rubbished charges by Congress and Left that it was aimed at vitiating the campus atmosphere among students there.

“We will hold consultations with the Muslim community and help try to resolve the issue amicably,” he said, adding that the Narasimha Rao government had in 1994 told the constitution bench of Supreme court that it will allow a temple to be rebuilt if it is proved that the site belongs to a temple.

The conference will discuss the history, archaeological evidence and the legal issues relating to the Ayodhya temple. – Economic Times, 6 January 2016

Ram Seminar

NSUI protest at Delhi University

India needs a common civil code rooted in reason, not sentiment – Mohan Guruswamy

People of India

Mohan Guruswamy“If a common set of laws for inheritance, marriage, divorce, custody, adoption and guardianship were to be framed with a special emphasis on gender equality, which neither resembled any existing personal law nor sought to impose any one personal law on the rest, it would simply be a common and secular civil code. Such a common and secular civil code, while not interfering with any of the rituals and many practices of the various religious and caste groups, would seek to merely legitimise the larger precepts of law that are being made secular.” – Mohan Guruswamy

Supreme Court of India in New DelhiThe Supreme Court on [October 12th] gave the Union government three weeks to come up with a proposal to amend the Christian divorce act while asking it to take a quick decision on a uniform civil code to end the confusion over personal laws.

“If you want to have a uniform civil code, have it. If you want to follow the uniform civil code, follow it. But you must take a decision soon,” a bench headed by justice Vikramjit Sen told solicitor general Ranjit Kumar.

We have a National Democratic Alliance government, and with the Bharatiya Janata Party alone having a majority in the Lok Sabha with 282 seats, the excuse for shelving the discussion for a Common Civil Code has evaporated. The BJP manifesto had promised to deliver on this issue. It’s time for a debate once again. It’s time that we are no longer separated by law.

Relevant laws

The cornerstone of a democratic society is equality. Without equality, there can be no justice, just as without justice there can be no equality. True justice cannot be based on unjust laws, though it is possible to have a law-abiding society with the most unjust laws in place.

Just laws are a pre-requisite for a democratic society and, therefore, a just and orderly society. The concept of justice also changes with the dynamics of the times. Laws evolved and deemed sacred in more primitive times cannot continue to be considered so, if they do not satisfy the conditionalities of the doctrine of equality.

On this, the tallest philosopher of our times, John Rawls, wrote: “Laws and institutions on matter, however efficient and well arranged, must be reformed, or, abolished if they are unjust.”

In his celebrated work, A Theory of Justice, Rawls said that every person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. As such, justice denies that this loss of freedom for a few is made right by a greater good shared by others.

It does not allow that the sacrifice imposed on a few is outweighed by the larger sum of advantages enjoyed by many. Therefore, it follows that in a just society, the liberties of equal citizenship are taken as settled. The rights secured by justice are not subject to political bargaining or to the calculus of social interest.

Favouring personal laws

Much of the legal argument by those still in favour of the existing system of separate personal laws on the basis of religion and custom derive from the premise that personal laws are part and parcel of the freedom of religion guaranteed by Article 25 of the Constitution of India. This is despite the fact that Clause 2 of the same article specifically saves secular activities associated with religious practices from the guarantee of religious freedom.

Even so, personal laws are not laws under Article 13, and, therefore, do not have to conform to fundamental rights and the doctrine of equality enshrined in Article 14.

But if personal laws were tested against the doctrine of equality under law, it will be found that a large number of them are unjust, arbitrary, and unconstitutional. It is this issue the Supreme Court addressed in the matter of Father John Vallamattom, when the Chief Justice ruled: “we find section 118 of the Act being unreasonable, is arbitrary and discriminatory, and therefore violative of Article 14 of the Constitution.”

Choosing reason

Most of those who oppose a common civil code do so on the grounds that this is not the time as the minorities, especially the Muslim community, spoken for by its self-declared leadership, are not ready for it.

A “theological” argument has also been advanced, that these existing laws are God-given and, therefore, cannot be tampered with. The rationality of such an argument, and of the persons who advance them, do not deserve any serious attention in this day and age. This is the same logic that wants us to suspend reason and believe that a particular God was born at a particular spot just because it is commonly believed to be so.

All laws, even the eternal ones, are man-made and reflect the level of thinking and advancement of human knowledge and civilisation at that moment of time. If we have to accept what lawgivers such as Manu evolved in the period before the Gupta Empire or in medieval Arabia as sacrosanct, then we will forever be condemned to be governed by archaic, unequal and unjust laws. In the age of reason, the demand that people obey laws must be rooted in reason and not sentiment.

Destabilise to modernise

The task of modernisation entails the destabilisation of many institutions. Our founding fathers, Hindus and Muslims alike, in the process of seeking to modernise India, had destabilised and uprooted many traditional institutions. They destabilised the manner in which much of Hindu society was organised. They destabilised the hierarchy of castes. They also outlawed many discriminatory practices, apparently ordained by Hindu religion and custom.

The traditional objections of a uniform civil code hark back to the argument posed when the matter was debated in the Constituent Assembly. The two main objections then were that it would infringe on the fundamental right to freedom of religion guaranteed by Article 25, and that it would constitute tyranny of the majority.

The first objection is misconceived because the directive in Article 44 does not infringe the religious practices as stated under Article 25. As stated earlier, secular activities associated with religious practices are specifically saved from the guarantee of religious freedom.

Finding common ground

The second objection would be valid, if the laws of one community were made incumbent on the rest. However, if a common set of laws for inheritance, marriage, divorce, custody, adoption and guardianship were to be framed with a special emphasis on gender equality, which neither resembled any existing personal law nor sought to impose any one personal law on the rest, it would simply be a common and secular civil code.

Such a common and secular civil code, while not interfering with any of the rituals and many practices of the various religious and caste groups, would seek to merely legitimise the larger precepts of law that are being made secular.

For instance, a Hindu from Kerala may marry his niece under the Marumakkathyam Law, whereas it would be decreed as a voidable marriage for a Mitakshara Hindu. Under a common and secular civil code, the validity of a marriage would begin with the age of consent and end with a legitimate registration or certification by any authorised person or body such as a priest or locally elected officials or even traditional village elders.

By applying the doctrine of equality, all grounds of divorce, like adultery, desertion and cruelty, will be equally available to husband and wife. Thus, if a concealed pregnancy by another man before marriage is a ground, so will the concealed pregnancy of another woman by the man. If bigamy is to be a ground for divorce, so will polyandry. Naturally, divorce by mutual consent will be allowed to the husband and the wife jointly.

Doctrine of equality

A common and secular civil code will also then address the issues that make marriages void or voidable in a uniform manner. A void marriage is one that in law does not exist. A voidable marriage is one that exists legally, and can only be annulled by a court of law.

When the equality doctrine prevails, it will entail that in matters of maintenance and alimony, it will become the duty of the spouse with the greater or only income to maintain the other. A similar application of the doctrine on the questions of inheritance, maintenance of children, custody and guardianship and adoption will result in a dramatically different and more egalitarian social scenario.

It is this more equal society that all religious conservatives fear most. Unfortunately, the political parties that profess to be secular and those who profess to oppose pseudo-secularism pander equally to conservatives the most. That seems to be the real problem. – Scroll.in, 17 October 2015

» Mohan Guruswamy is Chairman, Centre for Policy Alternatives, New Delhi.

Indian army signpost in the Himalayas

Supreme Court wants basic facilities for pilgrims visiting Ayodhya – Harish V. Nair

Ram Temple on the Babri Masjid site after the demolition.

Ram Lalla Virajman“It is to be noted that Swamy had, in August this year, urged PM Narendra Modi to initiate steps to rebuild the Ram temple in Ayodhya by 2016 and ‘fulfill the party’s commitment to the electorate.'” – Harish V. Nair

The political, socio-religious and legal controversies surrounding the Ram Janmabhoomi-Babri Masjid may be lingering on for 23 years after the demolition of the mosque by Hindutva forces.

But even as petitions filed by Hindu and Muslim organisations—which challenged the Allahabad High Court’s verdict of dividing the disputed site into three parts—are pending, the Supreme Court on Friday ordered the Uttar Pradesh government to provide basic facilities to pilgrims thronging the makeshift sanctum sanctorum of an idol of Ram Lalla installed at the disputed spot in 1992.

“Why some facilities cannot be given? Is there any problem? Just do something if possible till some final order is passed,” a bench of Justices Anil R. Dave and Kurian Joseph told the Uttar Pradesh government on a petition filed by BJP leader Subramanian Swamy.

Quoting a reply he has received after filing a Right To Information (RTI) application, Swamy said the Uttar Pradesh government quietly earned a whopping Rs 300 crore from pilgrims in the last 23 years.

Swamy wanted the court to issue a directive to the state government to explain what they had done with the money so far.

“Every day thousands of devotees visit the place for darshan and pooja of the Ram Lalla, but the government has not provided basic minimum facilities like drinking water or toilets to them…. The RTI reply says the government has so far earned approximate Rs 300 crore from entry tickets. Where has this money gone? What has been done with it?” asked Swamy.

Subramanian SwamySwamy wanted the apex court to issue a directive to the state government to explain what they had done with the money so far.

In his application, he had sought an order from the apex court to “ameliorate millions of Hindus who make the pilgrimage to the site of the Ram Janmabhoomi at Ayodhya, to have a darshan and perform puja”.

Swamy said the status quo order passed by the SC in 1996 was limited to prohibit building of any structure at the disputed site, but there was no bar in constructions to facilitate amenities for pilgrims visiting the place.

Justice Dave assured Swamy said he would hear the petition along with the petitions pending in the court filed in August 2011 by Ram Janmabhoomi Samiti and Sunni Waqf Board, challenging the Allahabad HC verdict of a three-way division of the disputed Ram Janmabhoomi-+Babri Masjid site.

The high court had directed that the controversial land of 2.77 acres at the site be divided equally among Hindus, Muslims and Nirmohi Akhara—the parties to the suit.

A Vishwa Hindu Parishad (VHP) functionary has sought the RTI information about arrangements at the Ram Janmbhoomi Complex from the receiver of Ram Janmbhoomi and Divisional Commissioner of Faizabad.

It is to be noted that Swamy had, in August this year, urged PM Narendra Modi to initiate steps to rebuild the Ram temple in Ayodhya by 2016 and “fulfill the party’s commitment to the electorate.” – Mail Online, 7 August 2015

Ayodhya Pilgrims

“Modi will recover black money from abroad,” says Gurumurthy – Shobha Warrier

S. Gurumurthy

Swaminathan GurumurthyShobha Warrier, convener, Swadeshi Jagran Manch, launched his investigation into black money in 1986.

He was a member of the task force created by Bharatiya Janata Party leader L. K. Advani just before the 2009 election. The BJP had promised then and before the 2014 election that it would bring back the black money stashed away in various banks outside India if it were voted to power.

HSBC Bank, Geneva, SwitzerlandWhen the Narendra Modi government informed the Supreme Court that it could not disclose certain details about black money because of the double LGT Group Logotaxation avoidance agreement India had with certain countries, it angered lawyer Ram Jethmalani, on whose plea the Supreme Court had constituted a Special Investigating Team on black money. Jethmalani accused the Modi government of toeing the United Progressive Alliance line.

In this exclusive interview Gurumurthy explains his expectations of the Modi government on the black money issue. – Shobha Warrier

In 2009 when we met before the parliamentary elections, you had just submitted the task force report on black money to Mr Advani. Did you continue with your investigation even after the BJP lost the elections?

• Let me first talk about the initial hurdles in pursuing black money. There was an opinion among many leaders that there was no black money at all. [Former Union minister] Jairam Ramesh openly said it was complete nonsense. First the Congress said there was no black money, then they said there was no black money of this kind. Such opinion was shared even among some in the National Democratic Alliance.

Leaders from the BJP too?

• Yes, there were some BJP leaders. They genuinely felt there was no black money. That is also because some of them could not understand that black money was not kept as currency. So the initial difficulty that had to be crossed after submitting the task force report, was making people agree that there was black money.Sonia-G world's fourth richest politician ! When Advani started talking about it strongly during the elections, it became a public issue. Unless something becomes a public issue, it will never be an issue at all. Because of the elections, it got enough publicity.

Pictet & Cie Bank, Zurich, SwitzerlandWhen it became an issue, even [Congress President] Sonia Gandhi had to come out with a statement that they would bring black money from abroad. Then [then prime minister] Manmohan Singh had to repeat it.

Thus, it became an issue common to the political system. Till then, it was resisted. This was the biggest public hurdle that had to be overcome.

Today, no political party can say that black money is not an issue; it has become a national issue. Who drives it, who is more sincere, who has more commitment, is a different issue.

Was it not a global issue by then?

• At the 2010 G-20 meeting, France and Germany took it up and said that casino capitalism was the product of the Anglo-Saxon economic model. It was the first time in the history of the world that a virtually racial term was used to describe economic behaviour.

They said this model fostered tax havens as respected, accepted and legitimate. France and Germany said, unless you take on the tax havens and the secret banking system, they would walk out of G-20. So America had to cave in.

Unless you understand the functioning of the global financial system and the role of secret money in it, you will never be able to understand the forces that prevent the campaign and exposure of black money.

The global GDP is about $72 trillion and the high net worth individuals’ wealth is $54 trillion out of which $20 trillion is called offshore money. Offshore money is nothing but secret money.

We must understand that this does not mean cash alone; it is in the form of shares, real estate, bonds, yacht, ships, companies, gold, platinum. So this $20 trillion also is in the form of government bonds especially in America.

Much of this $20 trillion black money is from Asia and Africa. This is what drives the American stock market. And 55 per cent of American families are hooked to the stock market and nearly 60 per cent of retirement benefits and pension funds are invested in the stock market. It was less than 10 per cent in 1980 and gradually all the monies shifted from the bank to the stock market.

This connection of black money with the American stock market was what France and Germany resisted. They wanted the secrecy to be broken open.

International Black MoneyThat was how what we have been trying to do got global recognition. The black money issue can ever be tackled at home. After 2010, the world began to view it as a menace, but only as tax evaded money. But it is not only tax evaded money but it is money taken out of the country.

So the difference between black money in India and the black money out of India is, in India, it is tax evaded money and Indian money outside India is not only tax evaded money, but money which has been taken out of India’s capital resources needed for India.

So it is not only tax evasion, but treason too.

Do you think all political parties are involved in this, and that is why they do not want to pursue this with enthusiasm?

• Not only politicians, but bureaucrats, businessmen, some even in the judiciary are also corrupt. Then there is also drug money, gold smuggling etc. Politicians, who have been in power for too long, can be involved.

Most politicians are locally corrupt and they keep the money here itself. There was a politician in Jharkhand who said, when questioned about corruption, “Did I put the money in a Swiss bank? I only invested here.” He implicitly claimed to be a nationalist in corruption.

The Global Financial Integrity organisation came out with a calculation that between 1948 and 2008, $500 billion [about 30 lakh crore] has gone out of India. And between 2003 and 2011, $350 billion [about 21 lakh crore] has gone out of India. Most of it had gone out of India after India liberalised the economy.

Are you connecting black money with liberalisation?

• I am not saying the economy should not be liberalised. But there is a connection. It allows people to have more opportunities to spirit away money. There is no safeguard.

The Foreign Exchange Regulation Act is not there. The money laundering law, not in effective form, came too late. The threat of arrest is not there.

What I want to say is, it is now certain that funds have gone out of India and what has gone out of India is not a very small amount, but very large.

Also, it is not a one nation’s problem, but a global issue. It means we can form global partnership and pursue this money.

Is it possible for countries to take black money back?

• By legal action, money siphoned off by Ferdinand Marcos of the Philippines has been recovered. African dictators’ money has been recovered. It is possible to recover. But I don’t think our income tax department and Enforcement Directorate can do it because it consists of people who have colluded with these things.

The only possibility is that our intelligence agencies must be used for this purpose.

First, you must get clues, vital leads, names of the account holders and bank names. Only then you can start legal action.

When you were with the task force, could you get all these details, like the names of people and banks?

• We could get information, but only in respect of businessmen and not those of corrupt politicians.

Narendra ModiIn my view, this government must act and it has the opportunity to act. They have got to put together a set of very committed people with passion who will go about with this task.

I am sure Narendra Modi is quite keen about it. I have absolutely no doubt on that aspect.

At present, he has too many things to handle and I am sure he must be thinking about how to handle this. The matter is also with the Supreme Court.

The Supreme Court had constituted a SIT on black money on Ram Jethmalani’s plea. He accuses the Modi government of protecting the culprits. He said the Modi government is following the UPA path when it refused to divulge the names to the Supreme Court citing the treaty….

• There are two sets of names. In Liechtenstein Bank accounts, the German government announced that anybody could take the information, but the Government of India asked them to give it under the direct taxation avoidance agreement under which it is a secret. That’s why the Supreme Court asked why did they obtain it under a secret clause what is available in the open?

Ram JethmalaniBut the most important thing is the HSBC account particulars which we got from France. France got it from records stolen by a disgruntled employee in the HSBC bank in Switzerland. But the bank is in the Swiss jurisdiction. We got reportedly about 600 Indian names from France under the double taxation avoidance agreement.

The government view is that under terms of the bilateral the details can be disclosed it only after prosecution is launched. This is the claim of the government saying this is the international practice.

The other view is, with which I agree, is that in public court proceedings, the government can disclose the names. The government seems to say that the Supreme Court cannot over-rule the DTAA. But my view is no over-ruling is needed because the DTAA itself says that it can be disclosed in public court proceedings.

My view is when the court says the government has to disclose, it must disclose.

Yes, there are two views in this. Obviously, the bureaucrats will take a view which is very defensive and conservative. The more serious thing is they have filed an application saying the original order the Supreme Court had passed must be modified.

The original judgement says the government should not enter into any agreement with any country which says the information must be kept confidential and it is prohibiting the government from entering into inter-government agreement with the US for automatic and mutual sharing of financial information which is due in December

According to me, the government is wrong in filing this application because the DTAA with America specifically says you can disclose this information in public court proceedings. In my view, signing the inter-governmental agreement with America will not violate the Supreme Court judgment.

The perception among people is that the Modi government is not very enthusiastic about the black money issue and going slow like the UPA….

• I won’t take that view. Action to recover black money abroad will be in any way a slow process. It needs the world’s cooperation. The government has to create an atmosphere in which the world sees that the Indian government is keen on fast action.

Till the UPA was in power, the world had had a feeling that India was not keen to recover black money. This has to be reversed.

The first thing the government can do today is to expeditiously file prosecutions against people who have concealed the money in HSBC and disclose their names.

Recovering black money is a very strategic issue as the Indian government has to make alliances with many countries for which we took no efforts at all so far. This government can take these efforts because it has high level of influence with most of the countries. The credibility of this government is high.

Do you have confidence in this government that it would pursue the issue honestly?

• A hundred percent. This is going to be a very important agenda for Modi. He has made his intention clear to me many times before and after coming to power.

Modi may want to pursue it, but what about the others?

• There is no one in the government who can think otherwise if the most powerful person, the PM, wants action to recover black money.

In my view, Modi is the person who will do it. Others will fall in line, even if they genuinely doubt whether there is so much money.

• Finance Minister Arun Jaitley hinted that the name of a certain UPA minister is there. Is the issue only about UPA ministers and the Congress party? Is it not much bigger and deeper than that?

• He was talking about the 600 names in the HSBC list; he was not talking about the entire gamut of black money. He was actually answering the Congress which was taunting the NDA government for not acting on black money.

It was a political statement and that was needed because the Congress was trying to take advantage of the secrecy. That is why Jaitley said, be careful, you are likely to be embarrassed.

Do you think the Modi government will pursue the matter as seriously if there are names of politicians from the BJP?

• As yet, there is not even a suspicion of anybody from the BJP in it. So this is a hypothetical question. Even if somebody from the NDA is involved, public opinion and judicial opinion will force the disclosure.

L. K. AdvaniThe media must pursue it relentlessly. The problem is that some powerful sections of the media in India are also corrupt. If public opinion is generated, it will have its effect.

In spite of most media underplaying the black money issue and toeing the Congress, it has become an issue because it was made into an election issue by Advani. The credit for making it a huge public issue must go to Advani.

I am confident that the government will pursue the matter seriously. If not, people like us will not keep quiet. It is not to see the issue goes unattended that I have spent 30 years of my life on this. There are many people like me within and outside the system.

Have you got any startling revelations while pursuing the issue?

• There are many leads, but to give startling revelations, you need facts.

Without facts, you will be making allegations. I do not make allegations without facts. We can only go to a certain extent and after that, we have no powers to probe them. – Rediff, 27 October 2014

Supreme Court demands foreign account holder names

Legalism and Government Stand in Black Money Case – S. Gurumurthy – The New Indian Express – 30 October 2014

S. Gurumurthy“The government has concealed nothing from the SIT or the court. But the court rapped the government despite the government’s affidavit day before saying it has given all the names months ago. Neither the court nor the media is going to take back the strong comments. The damage is done. But morally, the Modi Government has won.” – S. Gurumurthy

Mukul RohatgiThe way the Supreme Court slammed the government on October 28 for not disclosing the names of black money holders given by the French government is like the classic case of both eating 100 onions and taking 100 lashes when the option was given to a person to do either of the two.

The short story of this paradox is this. The Supreme Court, moved by a public interest petition filed by Ram Jethmalani in 2009, delivered its judgment in July 2011, directing the government to appoint a Special Investigation Team (SIT). It was to be headed by two former Judges of the Supreme Court and consisted of the enforcement and intelligence agencies to probe the issue and recovery of huge black money suspected to be stashed away by Indians abroad.

The estimate of the rogue money, according to Global Financial Integrity (GFI), was $500 billion till 2008 and still counting. The UPA government, which had received information from Germany about black money account holders in Liechtenstein Bank and from France about such account holders in HSBC Bank in Geneva, was dodging the court’s insistence to disclose the details. It was taking refuge in some provisions of the Double Taxation Avoidance Agreement (DTAA) under which it said it had received the information. This forced the court to direct and get the government to disclose the Liechtenstein Bank details to the SIT. But before the court could direct the government to give details of HSBC account holders, the government filed a review petition asking the court to take back the judgment. After that the matter went into hibernation till it came back alive when the new government took over. The very first act of  Modi Government was to appoint the SIT – which the UPA was stalling – to which all investigations of black money stood transferred under the court’s orders. When everything seemed to be going well, the Finance Ministry filed an application on October 15, asking the court to vary its judgment of July 2011 since the government was advised that the direction of the court to disclose names overriding the DTAA was impeding the government’s efforts to secure an Inter Governmental Agreement (IGA) with the US for exchange of banking information. The IGA had the same provisions regarding disclosure as the DTAA with the US and most other nations.

The government said that since court orders seemed to prevent the government from signing the IGA with restrictions on disclosure, the judgment needed to be recast. Many, particularly Ram Jethmalani and others, who had worked on the black money issue for years, saw in this effort the same stonewalling which the UPA Government was doing to block the black money probe. The government’s October application lacked a sense of timing and ran contrary to the sentiments of its supporters on black money recovery agenda. Hell broke loose. Critics and friends alike began drawing parallels between the UPA and the NDA regimes, and sceptics began to feel that one was not different from the other. The ill-conceived and ill-timed application made everyone feel that this government too wanted to protect the black money holders.

But the facts were the other way round, as the clarification affidavit filed by the Finance Ministry on October 27 revealed. The affidavit unfolded how the government had not only been transparent with the SIT appointed by the court but also had been following its directions. The affidavit asserted that a complete list of cases where information had been obtained from the German and French governments, with the status of the action taken by the government was submitted by the Central Board of Direct Taxes on June 27. It added that the CBDT officials also met and briefed the SIT on the status of the cases, background of the information received, non-sharing of information by Swiss authorities, and constraints faced by the government and alternative methods of securing account details.

Arun JaitleyShockingly, his disclosure of how transparent the government had been and how it had parted with the details to the SIT was not mentioned when the Finance Minister briefed the media two days later on October 17, when already its critics and some friends had begun saying that the present government was no different from the UPA.

The Finance Minister’s briefing took the position that the DTAA prohibited the disclosure of information received under its provisions till the prosecution proceedings were started. This was precisely the argument of the UPA, which the Supreme Court in its judgment of July 2009 had overruled. This coupled with not mentioning that the government had already parted with the details to the SIT proved to be a disaster. In the huge negative publicity, the further affidavit of the government, which claimed that the list of names had been given to the SIT was not noticed at all.

In this situation came the application filed by the government asking for modification of the July 2011 judgment. The Attorney General did not sense the mood of the court and the nation, of course, and set out on legalism to justify the application, which the AG himself had personally approved. The fact that the government had already given the details was lost in the din. The court ordered the government to give the details in a sealed envelope to the court on October 29.

Did the AG tell the court that the details are already with the SIT? Even if he had, it was lost in the legalistic arguments on how justified the application for modification was. The result was bad imaging of the government in the court and in the public domain. Result, the government, which had already disclosed the details to the SIT, got a drubbing for not disclosing it – precisely like eating 100 onions and taking 100 lashes instead of either.

But even the AG’s legalism seems to be wrong. The hard fact is that the DTAA with France does not prohibit disclosure of information on the account holders in HSBC received from France in public court proceedings. The DTAA with France disciplines the disclosure of information received by India under it thus: One, the information shall have the same confidentiality as under India’s domestic law, that is the Income Tax Act and the Right To Information Act read together.

Two, if originally the information was secret in the hands of France (the sender) it shall be kept secret by India (the receiver). Apply the two norms now. First, the Income Tax and the RTI law permit disclosure and so no secrecy attaches to the HSBC details under the Indian law.

Next, the French got stolen information about bank account holders in HSBC in Switzerland. It is therefore not a secret in sender France’s hands. It is secret only in Switzerland. So under both the norms disclosure of HSBC information cannot be denied. And there is an overriding third norm.

The DTAA with France permits disclosure in public court proceedings in addition to disclosure in tax proceedings. It means when a court – the highest court in this case – directs the disclosure the government is empowered to disclose under the DTAA. Move further. The DTAA with the US is on identical terms as with France and the proposed IGA with the US is identical to the DTAA with the US on the disclosure of information. Consequently, the application of the government to the Supreme Court that the judgment prohibits disclosure of information is clearly misconceived, if not unnecessary. It is all confusion compounded at every stage.

How then should the government move forward now? The government should consult the SIT appointed by the Supreme Court whenever it has any doubt on how to go forward. It is the SIT that should ask the court for directions. The Supreme Court has already made it clear: the SIT will handle the investigation on black money. Will the government heed?

Narendra ModiPost Script: After all the strong words from the Supreme Court, which ordered the government forthwith to give to it the list of black money holders and critics saying that this government is no different from its predecessor, the SIT chief quietly confirmed last evening(on Tuesday) that the list handed to the court yesterday morning(on Tuesday) was the same as the list given to the SIT by the government four months ago, on June 27, 2014! Means what? The government has concealed nothing from the SIT or the court. But the court rapped the government despite the government’s affidavit day before saying it has given all the names months ago. Neither the court nor the media is going to take back the strong comments. The damage is done. But morally, the Modi Government has won. – The New Indian Express, 30 October 2014

Supreme Court: Systemic failures and corruption thwarts Ganga cleaning plan – IANS

Dead fish in the Ganga

Supreme Court of India in New Delhi“The court … repeatedly considered the option of setting up a committee that would assess the progress made in various steps taken by the government to make Ganga pollution free. The committee considered … was on the line of Bhure Lal Committee that was set-up by the apex court to clear the residential areas of commercial activities and unauthorised constructions in the national capital.” – IANS

Taking a dim view of the snail’s pace at which the Ganga action plan for cleaning the 2,525-km-long river had progressed, the Supreme Court Wednesday said heads must roll for lack of headway as it pointed to systemic failure and that Hari ki Pauripeople on the ground were more interested in bribe than in their task.

“So many heads should roll for the failure to implement the plan. It was not being allowed to be done for corrupt means. This is happening because some people who are entrusted to do the work are not doing it. They are not doing it not because they don’t like it but are being bribed,” said a bench of Justice T. S. Thakur, Justice Adarsh Kumar Goel and Justice R. Banumathi.

The strong observation from the bench came as it was told that since 2007 only one sewage treatment plant was set up in Dehradun and repeated reminders from the Central Pollution Control Board to the State Pollution Control Boards in Uttar Pradesh, Bihar and West Bengal to act against grossly polluting industries have fallen on deaf ears.

“It has not happened for so many years. If it goes on like that it (Ganga cleaning) may not happen in our lifetime. You have to take preventive steps. There has to be (fixing of) accountability,” said Justice Thakur.

Solicitor General Ranjit KumarThe court said this as all through the hearing, Solicitor General Ranjit Kumar tried to push the task of cleaning Ganga on the five basin states of Uttrakhand, Uttar Pradesh, Bihar, Jharkhand and West Bengal as the central government had financed the project but the states were responsible for execution.

“You are the architects of the project to make Ganga pollution free,” the court told him as it wanted to know about the objectives the central government wanted to accomplish in the first phase of the action plan.

The court said that the first phase should commence with preventing the industrial waste from 764 grossly polluting industries from flowing into the river as it would take care of 30 percent of the most toxic industrial waste in it.

Expressing its dismay that Central Pollution Control Board was headless for last six months and in the charge of an additional secretary, the court asked the Solicitor General to tell the court where the appointment was stuck and for which reason.

It also asked Solicitor General to inform the court the progress made on the steps taken by the government in three meetings held in September and October for making Ganga pollution free.

Uma Bharti is the Union Cabinet Minister for Water Resources, River Development and Ganga RejuvenationIt also asked the CPCB to tell it what steps was taken by the pollution control boards in Uttar Pradesh, Bihar and West Bengal on the 222 grossly polluting units – 215 in Uttar Pradesh, one in Bihar and six in West Bengal which were identified by it.

Directing the next hearing of the matter Oct 29, the court asked the central government to file an affidavit with the information sought by it by Oct 27.

The court, throughout its two-hour-long hearing of the matter, repeatedly considered the option of setting up a committee that would assess the progress made in various steps taken by the government to make Ganga pollution free.

Bhure LalThe committee considered by the court was on the line of Bhure Lal Committee that was set-up by the apex court to clear the residential areas of commercial activities and unauthorised constructions in the national capital.

The court said it even thought of having Bhure Lal, Delhi Metro former managing director E. Sreedharan and former Election Commissioner K. J. Rao on the committee being weighed by it but its only reluctance was asking such senior people, in terms of their age, to undertake such an arduous task. – Business Standard, 15 October 2014

See also

Article 370: Facts you should know – Pravin Singh

Kashmir: Article 370

Supreme Court of India in New DelhiThe Supreme Court on Tuesday (August 19) issued a notice to Centre on a plea challenging the provisions of Article 370, which provides special status to Jammu and Kashmir. The plea was filed by a Delhi-based NGO, asking why a law passed by the J&K Assembly “deprives people from other parts of the country from acquiring immovable assets or seek employment in the state.”

Revocation of Article 370 which contains provision for Jammu and Kashmir has been in demand for long time. The Article was added temporarily and was to be removed within a time- period but till date nothing has happened.

What is Article 370?

  • According to the Constitution of India, Article 370 is a law that grants special autonomous status to Jammu and Kashmir.
  • The article is drafted in Part XXI of the Constitution (in Amendment section) which relates to Temporary, Transitional and Special Provisions.
  • The original draft explained “the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948.”
  • On November 15, 1952, it was changed to “the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.”

The special status to Jammu & Kashmir

  • Unlike other State legislative Assemblies, J&K legislature has a six-year term.
  • Jammu & Kashmir has two flags; a separate State flag along with the National Flag.
  • Insulting of national symbols is not cognizable offence in Jammu & Kashmir.
  • Most of the laws except defence, foreign affairs, finance and communication, passed by Indian Parliament need to be approved by the State Government before they are made applicable in the State.
  • The citizens of J&K are governed by State-specific laws which come under the Constitution of Jammu and Kashmir, instead of those for the rest of India.
  • Under Article 370 the Indian Parliament cannot increase or reduce the borders of the State.
  • The Supreme Court has no jurisdiction in the State of Jammu & Kashmir.
  • The residents of J&K enjoy dual citizenship, but they could loose the J&K citizenship if they marry residents of other States.
  • If a woman marries a man in other Indian States, she loses her citizenship. Whereas if any woman marries a Pakistani, she will be entitled to have a citizenship of Jammu & Kashmir.
  • The Article also gives Pakistan’s citizens entitlement to Indian citizenship, if he marries a Kashmiri girl.
  • Majority of Indian laws including RTE, RTI and agencies like CBI, CAG are not applicable in J&K.
  • No outsider can purchase land in the State.
  • The Centre has no power to declare financial emergency under Article 360 in the State.
  • It can declare emergency in the state only in case of war or external aggression.

History of Article 370

  • Dr B.R. Ambedkar, who drafted Indian Constitution, had refused to draft Article 370.
  • In 1949, the then Prime Minister Jawaharlal Nehru had directed Kashmiri leader Sheikh Abdullah to consult Ambedkar in preparation of suitable draft.
  • Article 370 was then drafted by Gopalaswami Ayyangar, former Diwan to Maharajah Hari Singh of Jammu and Kashmir.

Article 370 and related controversy

  • J&K Chief Minister Omar Abdullah had earlier warned that any attempt to reopen the debate on Article 370 would force the State to revisit its terms of accession to the Indian Union.
  • In its election manifesto ahead of the Lok Sabha elections, the BJP had said it is in favour of abrogating Article 370, but said the issue will be discussed thoroughly before a decision is made.
  • During electioneering, Narendra Modi had suggested that it should be probed whether Article 370 has indeed benefited the people of Jammu & Kashmir. OneIndia, 19 August 2014

Kashmir Separatists

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