Arguendo

Arguendo is the Core Project in the Lex Coterie Group of Organizations.

Thursday, 14 July 2016

Untold Tales: These Happen Only In India

[The following is an experience narrated by a current student of a Law School. For obvious reasons the author chooses to remain anonymous. No changes have been made to the version of the author by Arguendo. All pictures are for representative purposes only.]


And there we were, on a fine cloudy day, at Sajjangarh Palace, Udaipur, which is a palatial hilltop palace, residence of the then rulers of Udaipur, situated 3100 feet above sea level. There were six of us, on an all-girls' road trip for the weekend. It was perfect, right upto what happened at the palace. We were all clicking pictures of the beautiful scenic view of Udaipur city, but as it turned out, someone else was clicking our pictures at that moment. Not once, not twice but every time we looked away, this man (who by the way, looked creepy as hell) kept clicking our pictures.

Two of us did notice that and I turned back to shout at him as to what he was upto, to which he changed his camera's angle and pretended to click the hills in the background, without answering me. He (and his group of three others) walked a little farther from where all of us were standing and pretended as if nothing happened. Me and my friends, for obvious reasons, moved towards the exit to look out for a watchman, or police (which generally we find in tourist places) or any other security personnel. But as most incidents with girls in India, we had to fight this on our own, because we found NOTA (none of the above) !
Finally we ended up finding this really aged care taker of the palace and tried to explain to him what had happened. He came inside the palace with us again to confront the person. The watchman questioned him about clicking our pictures and very conveniently and covertly disappeared from the scene. The next thing we know, Mr. Creep had the audacity to question me about the complaint we made to the caretaker.  Without arguing, I asked him to hand me over his phone. After a lot of denial, he finally, acting very cunningly, handed me his friend's phone with the confidence that I will not find any photos in it. They were four in all, out of which, with a lot of shouting and brawling, I managed to check three other phones, except the one actually owned by Mr. Creep. He managed to shout back at me and make me look like the fool who was lying or may be doing all this for fun. In his defence, all he said was "I am here as a tourist and I am bound to click pictures, if you are coming in the way of it, I can't help it." Well, how convenient.
I wasted my time and energy, and my friends', plus I failed to get his phone in my hand to check for any pictures. It was all in vain. Which is why I am writing this article today.
It is important to note here, that apart from the six of us, and four of them, the place had 50 odd people who got an easy, free tamasha to watch, and who were probably waiting for popcorn to be served.
Why did I not get access to his phone which was right there in his pocket, when I was dead sure that he clicked our pictures? Because of all "manly figures of the society" and all "modern women of the society", along with the "modern families" chose to sit back and watch who wins the game.
I was shouting at the top of my voice, my friends supporting me. But that was all. None of the educated class of people present there had the guts to come and help us get the phone or confront those losers. It is sad to see that people don't realize the gravity of incidents like these until they are the ones facing the music. People sure stopped there and heard what I was saying, how I checked their phones, but none of them made an effort to stop the guy from humiliating me and my friends. They were mere spectators.
That one thing that helped me was my telling him that we were law students and would pursue the matter if needed. That thing put him in a little confusion and that's when he lowered his tone a bit. But again, that didn't stop him. He asked me to apologize to him because I couldn't find any pictures in those phones he showed me.
So what are we supposed to do when there's nobody around to help? No security personnel, no help from the public. Just 6 girls who know they were wronged, but they were the only ones ready to stand for it.  This could've been worse, but since it wasn't, I am thankful. But what if it was? People who do not come together when such a thing is happening in front of their eyes are the same people who go for candle light marches after some gruesome and sickening incident takes place. Of course nobody was obligated to help us, but, it could've been their sister, your mother or daughter or wife. Would they have still been quiet? Would you have been a mere spectator?
One of my friends called me a "Dabangg" for doing this without any fear, but how many of us do this? I may have confronted him, but what good did it do? This is the reason most women do not come out openly with the problems they face, they do not confront their wrong-doers, because they do not have any confidence or faith in the people, in the system.  And how would they? Because all they become is matter of gossip, sympathy (and not in a good way) or may be isolated from the society for having such a fate to have faced all of it.There are some things that we need to sincerely work upon. 
To get rid of that attitude "Mera kya jaata hai" is the priority in that list.


Instead of help, women face statements like "Why did they send girls on the trip alone anyway? What were the girls wearing? How could they mess with the guys..kuch ho jaata toh?"




It's time we stand for each other, it's time we take responsibility. We should make sure that there is no need that we take out candle light marches, it's time we stop such incidents that lead to candle marches.

PS : The irony is that I can't disclose my name here, because this, being India! 



Sunday, 3 July 2016

The Leak we haven't fixed: The Essar Scandal


The Essar leaks include e-mails, office memos, telephone conversations and other records allegedly leaked from the systems of the Indian business conglomerate Essar Group.

Events leading to the Leak
In 2015, a whistleblower approached lawyer-activist Prashant Bhushan, and leaked a set of internal e-mails and memos from Essar Group alleging that the conglomerate had granted favours to several politicians, bureaucrats and journalists. Bhushan's Centre for Public Interest Litigation (CPIL) filed a PIL before the Supreme Court of India, requesting an investigation into these allegations.[i] The Essar Group filed an affidavit seeking dismissal of the PIL, calling the favours as legally justifiable "common courtesies".[ii]
In May 2016, lawyer Suren Uppal reported the existence of a new set of secretly recorded conversations to the Prime Minister. The conversations involve influential politicians, bureaucrats, businesspeople, bankers, and other VIPs. Uppal claimed to have received these tapes from the former Essar employee Albasit Khan, who later denied Essar's role in tapping the conversations and stated he had received these tapes from the now-deceased Mumbai Police officer Vijay Salaskar, a claim denied by Mumbai police. In June 2016, after the Outlook magazine made Uppal's claims public. Khan and Essar completely denied the story, accusing Suren Uppal of being an extortionist. Uppal denied the allegations, and promised to release the tapes to the Supreme Court of India.

According to Uppal,until 2005, the surveillance was carried out over the BPL Mobile network, which had been under Essar's control. The network was also used by Essar's rival Reliance Industries Limited (RIL), which allowed Essar to tap their conversations. However, RIL moved out of this network after 2005. After that, Essar allegedly used Hutchison network for the tapping.[iii]
Contents of the leak
The Essar leaks allegedly show that the businesses unfairly influenced the Indian government and judiciary during both UPA and NDA tenures.[iv] The leaks include the following:
·         A November 2002 conversation between politicians Amar Singh and Kunwar Akhilesh Singh reveals how Amar Singh lobbied in favour of Reliance Petroleum as a member of the Joint Parliamentary Committee.[v]
·         A December 2002 converstaion between RIL executives Mukesh Ambani and Satish Seth discusses how the Supreme Court was "managed" through minister Pramod Mahajan.[vi]
·         In another conversation, Mukesh Ambani and Satish Seth discuss how to break the Cellular Operators Association of India by paying millions to MP Rajeev Chandrasekharand the BPL Mobile founder.[vii]
·         In a June 2009 memo, senior executive Sunil Bajaj suggested giving 200 high-end cell phones to senior politicians and bureaucrats of the new UPA government, in order to "invest on right people at the right places for reaping long-term benefits". He stated that Airtel and Reliance were already "experiencing the benefits" of this strategy.[viii]
·         In another 2009 e-mail, Sunil Bajaj suggested earmarking at least 200 recruitment slots for job referrals from powerful politicians and bureaucrats. He argued that the recommended candidates were often "highly qualified", so the company would not have a problem hiring them.[ix]
·         A set of e-mails reveal that the Steel ministry's joint secretary Syedain Abbasi was granted accommodation at Essar's guest house in Delhi, although he was eligible for government-granted accommodation. In a 2013 email, the Essar executive Rajamani Krishnamurti describes Abbasi as "a very important person" who was handling the "majority of Essar’s issues". The e-mail reveals that Abbasi had advised Essar to oppose a particular government proposal through industry bodies such as ASSOCHAM, CII, and FICCI.[x]
·         An e-mail sent by Sunil Bajaj before the Diwali festival of 2013 suggested distributing gifts "to person in the middle and the lower ranks in various ministries, who are very vital in sustenance and procurement of important information and documents." The e-mail indicate that the Essar officials had access to confidential government communication from multiple ministries, including Coal, Environment, Finance, Petroleum, Railways, Shipping and Steel. The Essar officials were in close contact with the Petroleum MinisterVeerappa Moily, and had access to the 2012-13 budget proposals for his Ministry.[xi]
·         E-mail correspondence between Essar executives shows that BJP leader Nitin Gadkari and his family enjoyed a 2-night stay on an Essar luxury yacht in French Riviera during 7–9 July 2013. Essar also arranged their stay on the Sunrays yacht for a day, including a helicopter trip to and from the Nice airport.[xii]
·         Essar's internal records show that the company executives regularly arranged cabs for some Delhi-based journalists.[xiii]These journalists included Anupama Airy (Hindustan Times), Meetu Jain (CNN-IBN), and Sandeep Bamzai (Mail Today). [xiv]
Reactions
·         Essar filed a police complaint for data theft, and threatened legal action against media outlets that publish "any allegations based on any email stolen from the system":[xv]
“In the last few weeks we have received anonymous phone calls from people purported to have mail stolen from our systems and on which basis there have been some demands for money at the threat of publishing prejudicial material. It is curious that some of the queries reflect the kind of material on which we were sought to be blackmailed.
It is apparent that some of the material is fabricated and some of the allegations are conclusions and inferences being drawn from email stolen from our computers.”
·         When The Caravan published a cover story critical of the company, the Essar group filed a ₹ 2500 million defamation suit against the magazine.[xvi]
·         Essar also claimed that some of the leaked material was fabricated, and was being used to blackmail them. The leaked records allegedly contain evidence of politician-corporate nexus in India, and show how business interests unfairly manipulate Indian government and judiciary.
·         In the 2015 affidavit seeking dismissal of CPIL's request for investigation, the Essar Group stated that they had not derived any benefits from the alleged favours. The affidavit stated that there was no evidence of any criminal offence by Essar Group, and the alleged favours "common courtesies extended by corporate houses".[xvii]
·         Essar also questioned the authenticity of the leaked e-mails, calling them "unverified" and "pure hearsay". It stated that the company had not recruited people based solely on VIP recommendations, calling such recommendations legal and proper in Indian context.[xviii]
·          Essar accused CPIL of launching a smear campaign against them to seek publicity.[2]
·         The Aam Aadmi Party and the Indian National Congress demanded that the alleged tapes be made public.[xix]
·         The Prime Minister Narendra Modi ordered the Home Ministry to conduct an inquiry, and submit a detailed report.[xx]
Conclusion
Uppal claims are only the “tip of the iceberg” and that there were “far more incriminating conversations that expose invariably all aspects of corruption in the business milieu, Governance, policy making and judicial pronouncements that have marred our national pride and progress.”
The politician on the Yacht defends himself by saying that the Essar group owners have been his personal friends for several years and hence he doesn’t see any conflict of interest. Other politicians dismiss the story suggesting, public representatives must be seeking jobs for those from their constituencies. The only sphere, in which the “morality stick" has been cracked, is journalism and that’s where my basic objection lies.[xxi]
In conclusion, if we are genuinely concerned about media ethics, the first step is to acknowledge the real issues and by not avoiding to look at the genuine issues.



[i]Krishn Kaushik,Doing The Needful, Caravan (1 August 2015), available athttp://www.caravanmagazine.in/reportage/doing-needful-essar-industry-influence ,last seen on 29/06/2016.
[iii]Meetu Jain,Mumbai Police Dismiss Essar Whistle-Blower's Claim That Crime Branch Was Tapes' Source, Outlook (18 June 2016), available at  http://www.outlookindia.com/website/story/mumbai-police-dismiss-essar-whistle-blowers-claim-that-crime-branch-was-tapes-so/296982, last seen on 29/06/2016.
[v]Id.
[vi]Id.
[vii]Id.
[viii]Appu Esthose Suresh and Ritu Sarin, Essar Leaks: Wooing politicians with high-end phones, journalists with cabs,Indian Express(27 February 2015), available athttp://indianexpress.com/article/india/india-others/wooing-politicians-with-high-end-phones-journalists-with-cabs/, last seen on 29/06/2016.
[ix]Supra i.
[x]Id.
[xi]Id.
[xiii]Id.
[xiv]Archna Shukla,Essar Leaks: 2 journalists resign, third put on notice,Indian Express (28 February 2015), available athttp://indianexpress.com/article/india/india-others/essar-leaks-2-journalists-resign-third-put-on-notice/, last seen on 29/06/2016.
[xv] Supra xii.
[xvi]Shreeja Sen , SC declines to transfer Essar defamation suit against ‘Caravan’ to Delhi, Live Mint.(9 September 2015), available athttp://www.livemint.com/Companies/l7p8QtAzYYCRFzRHWVTZ0I/SC-declines-to-transfer-Essar-defamation-suit-against-Carav.html, last seen on 29/06/2016.
[xvii] Supra ii.
[xix]Congress responds to Indian Express report on Essar tapes, demands the tapes be made public, Indian Express( 17 June 2016), available at http://indianexpress.com/article/india/india-news-india/congress-responds-to-indian-express-report-on-essar-tapes-demands-the-tapes-be-made-public-2858448/, last seen on 29/06/2016.
Essar leaks: AAP joins chorus, demands the tapes be made public, Indian Express(18 June 2016), available at http://indianexpress.com/article/india/india-news-india/essar-leaks-aap-joins-chorus-demands-the-tapes-be-made-public-2861057/, last seen on 29/06/2016.
[xx]Rahul Kanwal,Modi orders probe into Essar leaks, asks Home Ministry to submit report, India Today(19 June 2016), available at http://indiatoday.intoday.in/story/essar-leaks-narendra-modi-indian-express/1/695383.html, last seen on 29/06/2016.
[xxi]The Essar leak case, journalism and selective outrage, available at http://www.bhupendrachaubey.com/news/The-Essar-leaks-case-and-journalism, last seen on 29/06/2016

Monday, 27 June 2016

The Crowns's Fancy: A Look into the Doctrine of Pleasure (Part-II)


[The following article is the Part II of the series. Check out Part I here ]

Article 311
Though doctrine of pleasure is accepted in India as it has developed in England, it has not been completely accepted in India. It is subject to the provisions of Article 311 which provides for procedural safeguards for civil servants.
Article 311 of the Constitution of India states that:
(1)   No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where, it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply — 
(a)   where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or 
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or 

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."[1]
Restrictions/Limitations on the Doctrine of Pleasure
Under Indian Constitution several restrictions has been placed on Doctrine of Pleasure. They are as follows:
(i) The service contract entered between the civil servant and government may be enforced.
(ii)   The fundamental rights guaranteed under the constitution are restrictions on the pleasure doctrine and therefore this doctrine cannot be resorted too freely and unfairly, Articles 14, 15 and 16 of the Constitution imposed limitations on free exercise of Pleasure Doctrine. 
(iii) A number of posts have been kept outside the scope of pleasure doctrine. Under the constitution the tenure of the Judges of the High Courts and Supreme court, of the comptroller and Auditor-General of India, of the Chief Election Commissioner and the Chairman and Members of Public service commission is not at the pleasure of the Government.[2]
Thus, the general principle relating to civil services has been laid down under Article 310 of the Constitution to the effect that government servants hold office during the pleasure of the government and Article 311 imposes restrictions on the privilege of dismissal at the pleasure in the form of safeguards.
Persons Entitled To Safeguard:
 Constitutional safeguards provided under Article 311 are not available to all the government servants. The constitution bench of the Supreme Court in S.L. Agarwal (Dr.) v. General Manager, Hindustan Steel Limited[3], generally considered as to who are the persons entitled to the protection of Article 311. The Court identified the following persons:
(1)   Persons who are members of:
(a)    A civil service of the union; or
(b)   An All India Service; or
(c)    A civil service of a State; or
(2)   Hold a civil post under the Union or State.
Supreme Court in State of Assam v. Kanak Chandra Dutta[4] laid down that civil post in Clause (1) means a post not connected with the defence services and outside the regular civil services.   Further, in Parshottam Lal Dhingra v. Union of India[5], the Supreme Court of India has held that under Article 311 the safeguards are applicable to both permanent and temporary servants.

Constitutional Safeguards Available To the Civil Servants:
There are two constitutional safeguards provided under Article 311 of the Indian Constitution. They are as follows:
1.            Clause (1) of Article 311 addresses itself to the authority who can impose any of the punishments of dismissal or removal. According to this, no order of dismissal or removal can be made by an authority subordinate to the appointing authority. But if the removing authority is of the same or co-ordinate rank or grade as the appointing authority then, dismissal or removal by such authority is valid.[6]

2.      Clause (2) of Article 311 provides the procedural essentials to be followed before dismissing, removing or reducing in rank. Article 311(2) mandates the compliance of the Principles of Natural Justice. A civil servant cannot be punished without: (a) holding an enquiry; and (b) informing the civil servant about the charges against him; and (c) giving him a reasonable opportunity of being heard in respect of those charges.

Exceptions to the Safeguards Provided Under Article 311:
The provision to Article 311 (2) provides for certain circumstances in which the procedure envisaged in the substantive part of the clause need not be followed. These are as follows:
(a)    Conviction on Criminal Charge: The Supreme Court has emphasised under Art. 311(2)(a), the disciplinary authority is to regard the conviction of the concerned civil servant as sufficient proof of misconduct on his part. The authority is to decide whether conviction demands the imposition of any penalty and, if so, what penalty. For this purpose, the authority has to take into consideration the judgement of the criminal court, the entire conduct of the civil servant, the gravity of the offense, the impact of the offence on the administration, whether the offence was of a technical or trivial nature, and extenuating circumstances if any.
(b)   Impracticability: This clause applies only when the conduct of government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. Before denying government servant his constitutional right to an inquiry, the paramount consideration is whether the conduct of the government is such as justifies the penalty of dismissal, removal or reduction in rank.
In Union of India v Tulsiram Patel[7]the Supreme Court explaining the scope of the clause has said
“whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by cl. (b). What is requisite is that holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.”
The Supreme Court further held that the reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary as he is the best judge of the situation.

(c) Reasons of Security: The satisfaction has to be that of the President or the Governor as the case may be. The satisfaction must be with respect to the expediency or inexpediency of holding an inquiry in the interest of the security of the State. In Tulsiram Patel case the Supreme Court has clarified that the question is not whether the security of the State has been affected or not, for the expression cl(c) is “in the interest of the security of State”. The interest of security of State may be affected by actual act, or even the likelihood of such acts taking place. So the Court has observed:
“What is required under cl.(c) is not the satisfaction of the President or the Governor, that interest of the security of the State is or will be affected but his satisfaction in the interest of security of State, it is not expedient to hold an inquiry as contemplated by Article 311(2)”.
Conclusion
Thus it is obvious that the discrepancies of corruption creeping into civil services were apprehended by the makers of the Constitution. It can be said that the Constitution makers then at that time had known about the discrepancies like corruption to creep into the civil services, so they did not grant immunity from summary dismissal to dishonest or corrupt government servants. Also at the same time the judiciary with its limited judicial review and has ensured that the power to dismiss has not been misused by the authority. With many cases coming into light and also the ones discussed above in relation to corruption among the government officials and the cases of many government officials being linked with anti-social elements the Article 310 and 311 of the Indian Constitution envisaged in the Part XIV provides a means of check and balance so that the government officials do not make a  mockery of Law.



Refrences:
[1] Article 311of the Constitution of India
[2] Dr. J. J. R. Upadhyaya, Administrative Law,  498 ( Central Law Agency Publications, 9th  ed., 2012)
[3] AIR 1970 SC 1150
[4] AIR 1967 SC 884
[5] AIR 1958 SC 36
[6] Mahesh v. Uttar Pradesh, AIR 1955 SC 70
[7] AIR 1985 SC 1416