Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.

1

Share

India legal 01 april 2019

BANKING CRISIS
Is Compensation Reform the Answer?
Financial analyst Sanjiv Bhatia analyses the impact of excessive government control over assets

India legal 01 april 2019

  1. 1. Zakir Naik: Thorn in Malaysia’s side Masood Azhar: China’s UN game Financialanalyst SanjivBhatia analysestheimpactof excessivegovernment controloverassets IsCompensation Reform theAnswer? NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com April 1,2019 BANKING CRISIS
  2. 2. Catch Us Every Saturday at 8 pm and Sunday at 2 pm
  3. 3. ATRIOTISM should be a creed of passion rather than an outlet for hys- teria which often causes nations to leap into darkness, unreason and folly. There is no gainsaying that in the aftermath of Pulwama and Balakot, there is a level of stridency and revanchism I have never before witnessed—not during India’s embarrass- ing defeat to China in 1962 when we lost men and territory, not in 1965, not in 1971 when India created Bangladesh out of East Pakistan, and certainly not during the Kargil war when Indian soldiers crushed Pakistani military adventurism in the high Himalayas. The main difference was that there was either no TV at the time, or later, when TV arrived, anchors were mostly civilised, educated and sober, and did not go into whooping war dances during national security crises. Media commentators of substance and stature ques- tioned their governments publicly on geopoli- tics, war preparedness, strategy and policy. Reporters (I was among them) were actually given war correspondent training in military exercises to enable them to send despatches from conflict zones. Blood-curdling war-whooping from TV stu- dios is a relatively new phenomenon which has much to do with TRP ratings as it has with the mass-selling, calibrated and orchestrated politi- cisation of national security scenarios by politi- cians who have never faced a bullet in defence of their country nor have any idea where the LoC with Pakistan lies. Actually, despite the political sturm und drang in the TV studios, there is considerable reason, good sense and sane counsel on the real ground—among ordinary people, including our soldiers and security forces who are in the front lines. One of them is Abhinav Kumar, a fine journalist whom I was privileged to supervise in the newsroom, now an IPS officer serving as IG Frontier HQ BSF, Srinagar. You won’t see Abhinav in the Mad Max TV studios. You can catch his thoughts occasionally in a national daily, but more on social media. What caught my attention recently on his Facebook timeline was a piece I would like to share with my readers. Writes Abhinav, who is known to be a no- nonsense law-and-order police officer: “A nation that implodes into paroxysms of fear and anxiety at the sight of one brave soldier in captivity, is not the nation that Wing Cdr Varthaman flew up to defend. All of us who serve in uniform, whether on the borders or in our hinterland, against the enemies of India, know what we are up against. We don’t always expect perfect understanding from our citizens, but both the display of chest thumping jingoism, and the display of breast beating hysteria at the plight of our captured air warrior are unwise and unseemly. We could honestly do without the mindlessness of both varieties. No one said that the job of defending India was going to be pre- dictable or pretty. “No one wants war, but Pulwama and the scores of bloody blows that we have taken in the past in Kashmir and elsewhere, are not my idea of an honest and durable peace. So please grow up and pipe down India on the rhetoric about war and the pious homilies about peace. It is NO! TO JINGOISM. NO! TO COWARDICE Inderjit Badhwar Letter from the Editor P Ourmenandwomen inuniformare brains,muscleand blood—andnottin soldierstobe manipulatedor pawnedfor ANYBODY’smyopic politicalgain.They areownedonlyby thesoilthatgave thembirthandnot byscoundrelsofany politicalhuewho findhysterical patriotisma lastrefuge. 4 April 1, 2019
  4. 4. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com really hard to motivate the men if they think that we are a nation of mindless jingoists or spineless cowards.” I n a related post, Abhinav argues that on behalf of all those serving in Kashmir, he is thankful for the outpouring of grief and support by patriotic citizens across the country. But he cautions that a few things should hap- pen for this support to materialise into some- thing of lasting value. “First of all please don’t demonise all Kash- miris, including the youth who post stupid offensive messages on social media. We need communal harmony across the country more than ever. Second, all those who ask why our forces cannot be better equipped to deal with unexpected threats, the short answer is that we are a low income country with a low tax to GDP ratio. If you really want to help the forces, pay your taxes honestly. A strong state cannot be built on a weak economy and divided society. In this time of crisis, we must reaffirm our faith in our constitutional and civilisational values of inclusiveness, tolerance and courage.” Our TV anchors would do well to learn from Abhinav. Personally, I believe that our guys out there in the trenches and in the line of fire are far more sanguine, practical, balanced, brave and realistic than the anchors and cowardly politicians crying havoc and creating mindless pandemonium behind the protective cover of our TV screens and studios. Our men and women in uniform are brains, muscle and blood—and not tin soldiers to be manipulated or pawned for ANYBODY’s myopic political gain. They are owned only by the soil that gave them birth—which they are sworn to defend and pro- tect—and not by scoundrels of any political hue who find hysterical patriotism a last refuge without understanding that word or realising that the very act of donning your nation’s uni- form is inherently and irrevocably, in and of its own, innately patriotic. | INDIA LEGAL | April 1, 2019 5 REALISTIC AND BRAVE BSF jawans keeping vigil at the Attari international border UNI
  5. 5. ContentsVOLUME XII ISSUE20 APRIL1,2019 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 April 1, 2019 12Hitting Where it Hurts The RBI’s draft rules on compensation for CEOs of private banks are flawed as studies have shown there is a greater incentive to cheat when a large proportion of pay is based on variable financial incentives LEAD 16Judges and Femininity Can legal education provide the foundation for cultivating feminine approaches so that lawyers are at least conscious of this deficit? A column by Prof NR Madhava Menon COLUMN LEGALEYE 17Unlawful Practice The Election Commission has sought action from the Bar Council of Delhi against two law firms for advertising themselves as having expertise in political party registration
  6. 6. Dangerous Din Fed up with the noise pollution caused by bikes and marriage parties, the Punjab and Haryana High Court has formed a committee to frame suggestions to address the menace A Convenient Pawn China’s reluctance to declare JeM chief Masood Azhar a global terrorist at the UNSC is evidence of its symbiotic ties with Pakistan through which it intends to keep a check on India’s influence in the region 20 26 GLOBALTRENDS | INDIA LEGAL | April 1, 2019 7 Drinking Blues REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Illustration and Design ANTHONY LAWRENCE Ringside............................8 Courts ...............................9 Is That Legal...................10 40 The Gujarat High Court has issued a notice to the state government on a clutch of pleas which contend that people have the right to consume liquor in private spaces Playing It Safe 44 With the poll process in full swing, Karnataka Chief Minister HD Kumaraswamy has decided to go slow on the SIT probe into charges relating to horse-trading of MLAs Mopping up Revenue 46 The new liquor policy of MP, to be implemented from April 1, is aimed at boosting revenue; but for now, it will have to retain all the old features until the Lok Sabha polls are over SPOTLIGHT High-stakes Battle 38 In the face of mounting pressure from the church, the Kerala government has put on hold a Bill which seeks to regulate the administration of church assets 48Tenacious Warrior Bureaucrat Ashok Khemka, who made a mark exposing the misdeeds of the high and mighty, has blown the lid off a fellow bureaucrat in the Haryana government who got his children cash awards they weren’t eligible for Whither Transparency? Though the Lokpal post has been filled, no details were available about the norms adopted by the selection committee to zero in on the candidate 18 Greener Pastures To curb the growing incidence of government doctors abandoning their duties to start private practice, the Madras High Court has directed the state government to set up a monitoring committee 22 Pay for Negligence The parents of a child who drowned in Ryan International School in 2016 have moved the Delhi High Court for compensation, claiming that the school authorities had acted negligently 24 Walking a Tightrope To keep both Malays and non-Malays happy, Malaysian Prime Minister Mahathir bin Mohamad has allowed controversial Islamic preacher Zakir Naik to stay in the country but with a gag order 30 A Thorny Issue Though the judiciary has often stepped in to stop the plunder of the Aravalis, without the will of the Haryana government, protecting the area will be an uphill task 36 ENVIRONMENT POTUS Again or Citizen Trump? With several Democratic aspirants in the fray, it’ll be interesting to see whose policy and leadership can win and undo the worst excesses of the Trump experiment 34 COURTS STATES
  7. 7. 8 April 1, 2019 “ RINGSIDE “I won from Ragho- garh despite the Jan- ata Party wave in 1977. I am ready to contest the Lok Sab- ha elections from wherever...Rahul Gandhiji says.” —Congress leader Dig- vijaya Singh, on whe- ther he will fight from a tough seat in MP “In Uttar Pradesh, the alliance of the SP, BSP and the RLD is capable of defeating the BJP. The Cong- ress party should not create any kind of confusion.” —SP chief Akhilesh Yadav after the Congress announced that it was leaving some seats for the SP-BSP-RLD alliance in UP in the Lok Sabha polls “...everyone wants to play the World Cup, so people will be smart about it...all the Indian players will have the responsibility during the IPL to keep a watch on their fitness and their workloads....” —India captain Virat Kohli on man- aging workloads of players during IPL “...five-seven years later, you will get a chance to buy a house or do business some- where in Karachi, Lahore, Rawalpindi and Sialkot. There was no Pakistan before 1947.... It will again be a part of Hindustan....” —Senior RSS leader Indresh Kumar “I don’t know what wrong I’ve done. Whatever duty that the party has given me from time to time has been carried out by me in right ear- nest. So, this has sad- dened me....” —Former Union min- ister and Congress- man KV Thomas after being denied a ticket for Lok Sabha polls “My sincere and heartfelt thanks to my respected elder brother, Mukesh, and Nita, for standing by me during these trying times, and demonstrating the importance of staying true to our strong family values.... I and my family are grateful we have moved beyond the past....” —Anil Ambani, after Mukesh Ambani helped him pay dues to Ericsson to avoid jail “The indignation experienced by us more than 150 years ago still weighs heavy on us. We have started this party with the intention of provid- ing new politics to a state....” —Bureaucrat- turned-politician from J&K Shah Faesal after launch- ing a political party “...on one hand, the Modi government is seeking to priva- tise Air India and on the other, they are buying a bank- rupt private airline with public money.” —AICC spokesper- son Randeep Singh Surjewala, blaming the Modi govern- ment for bailing out Jet Airways through public sector banks Anthony Lawrence
  8. 8. Gujarat HC junks plea on EVM tampering Adivision bench of the Gujarat High Court comprising Acting Chief Justice Anant S Dave and Justice Biren Vaishnav dismissed a petition which had raised concerns about malfunctioning of and tamper- ing with Electronic Voting Machines (EVMs), saying that such apprehen- sions are totally unfounded and unjustified. The bench further said that it would prefer not to sit in judg- ment over the assurance of a consti- tutional authority like the Election Commission of India. The petitioner, advocate Khemchand Rajaram Koshti, had challenged Rule 56(D)(2) of the Conduct of Elections Rules, 1961, which vests discretion in the returning officer to reject an applica- tion for counting of the printed paper slips in the drop-box of the printer. Courts | INDIA LEGAL | April 1, 2019 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal Team Acting on a PIL seeking a court-monitored probe into the Pollachi sexual assault and extortion case, the Madras High Court issued notice to the Tamil Nadu government and the CBI. The PIL contended that a court- monitored probe is warranted given the careless handling of the case by the Tamil Nadu government. The case relates to a racket run by four men who befriended hun- dreds of women on social media and sexu- ally molested them since 2013. In some cases, the men shot explicit videos of the women and used them to blackmail their victims. Four men have been arrested in Pollachi town of Tamil Nadu in connection with the case and are in judicial custody. The Madras High Court notice comes close on the heels of a similar plea filed by two lawyers from Tamil Nadu for a Supreme Court-monitored probe into the case. The plea also seeks a transfer of the case out- side Tamil Nadu and the issuance of direc- tions to prevent a media trial. Madras HC issues notice in Pollachi case While hearing a batch of petitions filed by man- ufacturers and importers of Electronic Nicotine Delivery Systems (ENDS), a single- judge bench of the Delhi High Court stayed a ban on the imp- ort, manufacture, sale and distribu- tion of ENDS like e-cigarettes, e-sheesha, vapes, e-hookahs with nicotine flavour, etc. The petitioners had challenged a November 2018 customs circular which directed customs authorities to ensure that all import consignments of ENDS are referred to drug control authorities and to ensure implementation of the Ministry of Health & Family Welfare advisory to states recommending a ban on ENDS. They also conten- ded that ENDS do not fall within the definition of “drugs” under Section 3(b) of the Drugs and Cosmetics Act. Agreeing with these arguments, Justice Vibhu Bakru ruled that e-ciga- rettes/ENDS are not drugs. E-cigarettes are not drugs, says Delhi HC Observing that “a girl is having equal freedom similar to a boy”, the Kerala High Court struck down a rule applicable to the girls’ hostel of Sree Kerala Varma College in Thrissur district. The impugned rule restricted female boarders from going for first and second show of movies or taking active part in political meetings, processions or propaganda. In 2017, Anjitha K Jose, then a third-year bachelor’s student in the college, had challenged the hostel rules as violative of her fundamental rights. While striking down the rule, the Court said: “It appears that moral choice of the management is attempted to be imposed upon the board- ers. The moral paternalism is something to be frowned upon. There are no similar restrictions in the boys’ hostel….” Kerala HC sets aside unfair girls’ hostel rule
  9. 9. 10 April 1, 2019 ISTHAT Is dowry legal in India? What are the protections provided by law? The Dowry Prohibition Act, 1961, provides protection to wives who are harassed, humiliated and tortured due to dowry demands in India. However, dowry is distinct from gifts—money, property or consumer durables volun- tarily given by the father of the girl without being coerced. Section 304 B of the Indian Penal Code relates to death caused by any physical injury due to dowry de- mands within seven years of mar- riage. Once convicted, the person will face a jail term not less than seven years, which could be extended to life imprisonment. Section 498A deals with cruelty inflicted by the husband and his fami- ly members due to dowry demands. Once convicted, the person could face punishment with a three-year term in jail, accompanied by a fine. Does an arrested person have any rights? Well, there are several rights for a person who has been taken into custody as per the law in India. The right to consult a lawyer and be represented by a lawyer can’t be denied to him. In case he can’t afford a lawyer, free legal aid must be provided. Anyone arrested also has the right to remain silent when inter- rogated by the police and this can’t be legally held against him. Among other rights, an arrested person must be taken to a magistrate within 24 hours of his arrest. This is in accordance with Section 56 of the Code of Criminal Procedure. Moreover, the arrested person has the right to know the grounds of his arrest and bail can’t be denied to him, except in case of a non-bailable offence. He also has the right to be heard and to get a fair and speedy trial. According to Article 20 (3) of the Constitution, an accused can’t be forced to become a witness or speak against himself. Rights of Arrested —Compiled by Sankalan Pal Enough Legal Protection for Dowry Victims Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis What is curative petition? The concept of curative petition has been introduced by the Supreme Court. The idea is to provide yet another opportunity to an aggrieved person for relief after the final verdict is delivered by the top court in the review petition. However, the ground for a curative petition is based only on issues of law. The aim is to prevent any miscarriage of justice. There is no time limit for such petitions. The peti- tioner must prove that there has been a violation of natural justice. Filed by a senior advocate, the curative petition is sent to the three seniormost judges of the apex court as well as judges who have heard the matter. The matter is placed before the appropriate court only after the major- ity of the judges agree that the matter should be heard again. TheLast JudicialResort ? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com What are the laws regarding euthanasia? The Supreme Court, in a landmark ruling, passed an order in March 2018 legalising passive euthanasia. In passive euthanasia, medical treatment is withdrawn to hasten a person’s death. This could be done by removing life-support systems or making no effort, medically, to keep the patient alive. However, all this has to be done with the patient’s consent. Generally, such patients are suffering from terminal illness and their chances of survival are nil. The top court has held that the right to die with dignity is a fundamental right in India. A person can even write a “living will” giving consent for passive euthanasia. On the other hand, in case of active euthanasia, doctors take steps to ensure that the patient dies. For example, this could be done by injecting lethal compounds. However it is yet to be permitted legally in India. Legal Licence to Die
  10. 10. Lead/ Private Banks/ CEO Compensations 12April 1, 2019 HE RBI recently proposed draft rules on compensa- tion for CEOs and full-time directors at private banks. The aim is to discourage excessive risk-taking and ensure that rewards for senior execu- tives in these banks are aligned with the risks taken by the banks. Compensation schemes are meant to address a problem referred to as the “principal-agent” problem where man- agers, who are the agents, may run the company in a way that advances their interests instead of those of the owners (the shareholders). A common solution to this problem is to offer managers rewards for long-term growth by design- ing compensation structures that include instruments like restricted stocks, stock options, pension plans and so on. On the other hand, compensation structures that are skewed towards higher salaries and performance bonus- es reward short-term performance and may encourage management to boost immediate profitability but risk the future financial health of the company. The principal-agent problem is even more acute in the banking sector which often leads to excessive risk-taking by bank executives. Many studies have attributed the incentives generated by TheRBI’sdraftrulesoncompensationforCEOsofprivatebanksareflawedas studieshaveshownthatthereisagreaterincentivetocheatwhenalargeproportionof payisbasedonvariablefinancialincentives By Sanjiv Bhatia T Anthony Lawrence Hitting Where it Hurts
  11. 11. | INDIA LEGAL | April 1, 2019 13 bank executives’ compensation progra- mmes to the excessive risk-taking that led to the 2008 global financial crisis. The move by the RBI to modify pay str- uctures for bank executives at a time the Indian banking sector is facing severe stress is, therefore, not surprising. Typically bank executive compensa- tion is structured with a fixed compo- nent, a variable component and stock options. The RBI is proposing the fol- lowing changes in variable pay: Total variable pay should be at least 50 per- cent of total compensation, stock options should be included in the vari- able component and capped at 200 per- cent of fixed pay, and a minimum of 60 percent of the total variable pay must be under deferral arrangements. The RBI argues that a higher variable pay com- ponent ensures more skin in the game. If a CEO’s compensation depends on the performance of the bank, he or she would be incentivised to ensure that the bank performs well. Currently, there are no fixed norms for computing fixed and variable pay for bank executives. An April 2018 study by Institutional Investor Advisory Services showed that variable pay across private banks stood at 49 percent of total compensation. This is in line with the trend across a broader basket of BSE 500 companies. T he proposed RBI rules also man- date compensation clawbacks in cases of misreporting of bad loans and failure to adequately provision for bad loans. While most compensation contracts at private banks have a claw- back option in cases of gross negligence or a breach of integrity by the CEO, it is rarely invoked. It is only recently, in the case of ICICI Bank, that its board app- roved a clawback on all performance bonuses paid to its former CEO, Chanda Kochhar, between April 2009 to March 2018 after she was accused of violating the Bank’s code of conduct. But why is the RBI involved in struc- turing compensation for private banks? It doesn’t concern itself with such mat- ters in other industries, then why bank- ing? Shouldn’t executive compensation be the responsibility of the bank’s share- holders? Banks are special institutions and very different from other businesses. Firstly, there is greater risk of financial instability when it involves banks. The 2008 global financial crisis, which origi- nated in the banking sector, is a remin- der of how critical this sector is to sys- temic risk. Secondly, banks are highly leveraged, meaning that they carry a lot of debt relative to the value of their assets. This leverage encourages exces- sive risk-taking. Thirdly, bank assets and liabilities are mismatched. The BANKABLE OR NOT? (Far left) Chanda Kochhar, former CEO, ICICI Bank; (below) Rajeev Yadav, CEO Fincare Bank TheRBIsaysthatahighervariablepay componentensuresmoreskininthe game.IfaCEO’scompensationdepends onthebank’sperformance,he/shewould beincentivisedtoensurethesame. Photos:UNI
  12. 12. liabilities are customer deposits that must be repaid upon demand, while the assets are longer-term loans. No bank holds enough cash to meet all of its depositors’ simultaneous withdrawal demands and this mismatch of relatively illiquid assets with extremely liquid lia- bilities makes banks extremely vulnera- ble to runs. Any hint of a problem can quickly push a bank towards insolvency. It is, therefore, necessary and pru- dent for an informed regulator like the RBI to be involved in monitoring the risk levels in the banking system. But while constraining risk-taking is an important task for bank regulators, the appropriateness of using pay structures is still contentious. It is not clear that compensation affects risk-taking by bank executives. There has been renewed attention to executive compensation in the banking industry since the 2008 financial crisis. Most of the compensation reform pro- posals have taken one of three approa- ches: long-term deferred stock incentive compensation, mandatory bonus claw- backs on “inappropriate” risk-taking, accounting restatements or financial losses and debt-based compensation. The RBI proposal focuses on increasing the stock component (variable pay) of the executive compensation and the use of bonus clawbacks. Unfortunately, revamping compensa- tion structures alone may not solve the problem of excessive risk-taking by bank executives. Recent research shows that there may be factors that have a far greater impact on risky behaviour than compensation. Bank size, for example, is positively correlated with risk-taking— executives at larger banks tend to take on higher risk. Bank leverage is also positively correlated with excessive risk- taking—banks with higher debt com- pared to equity tend to take greater risk. Let’s consider a simple illustration of how leverage affects risk-taking. Assume I start a project with `1 of my own (equity) and `99 borrowed from the bank (debt). This is a highly levered venture, and my incentive would be to take on a lot of risk because if the proj- ect succeeds, all the gains come to me and if it doesn’t, my loss is limited to my equity—`1 in this case. If, however, I had started the project with `50 of my money (equity) and `50 in debt, then the propensity to take on high-risk would be reduced because my loss in case of failure would be more meaning- ful. The same logic applies to banking. High leverage creates incentives to take on greater risk, especially in public sec- tor banks where there is an additional moral hazard problem brought about by the backstop of capital infusion provid- ed by the government. It is, therefore, vital that executive compensation structures be coupled with higher levels of equity financing in banks to reduce their leverage. Properly aligning management’s incentives req- uires the interaction of bank capital structure and bank executive incentive compensation. Just tinkering with com- pensation structures alone is unlikely to reduce risk-taking behaviour. B ut policymakers are against inc- reasing equity requirements for banks because they believe it will restrict lending and impede economic growth. Last year, 11 out of the 21 public sector banks in India were under the RBI’s prompt corrective action (PCA) regime for inadequate capital. The RBI wanted these banks to increase their equity before allowing them to engage in additional lending. But ever since the appointment of a government-friendly RBI governor in December 2018, six of the 11 banks have been taken off the PCA regime even though there has been no improvement in their equity position. While on the one hand the RBI is attempting to reduce risky behaviour by imposing restrictive compensation Lead/ Private Banks/ CEO Compensations Eversincetheappointmentof ShaktikantaDasastheRBIgovernorin December2018,severalpublicsector bankshavebeentakenofftheprompt correctiveactionregime. 14 April 1, 2019 Anil Shakya
  13. 13. structures on private banks, on the other, it is allowing highly levered public sector banks to reengage in risky lend- ing without an improvement in their equity position. The RBI’s proposal to increase the variable portion of a bank executive’s compensation to improve accountability may also backfire. Academic studies show that there is a greater incentive to cheat when a large proportion of a per- son’s pay is based on variable financial incentives. When there are financial rewards for hitting results that trigger a payout, it becomes attractive to game the metrics. Studies have shown that when a significant portion of a CEO’s compensation is based on stock options, it encourages short-term and unethical behaviour and increases the likelihood of earnings manipulations, product quality and safety problems. When peo- ple’s remuneration depends strongly on a financial measure, they are motivated to maximise their performance on that measure, no matter how. Another problem with the RBI pro- posal is that while it wants 60 percent of the variable pay to be under a “deferred arrangement”, it doesn’t speci- fy the period for such deferral. Is the compensation deferred for two years or five years or up to retirement or beyond that? A recent study by University of Colorado professor Sanjai Bhagat emphasises that incentive compensa- tion for bank executives should consist only of restricted stock and stock options—restricted in the sense that the executive cannot sell the shares or exer- cise the options for one to three years after his last day in office. This would induce them to focus on the long run and discourage them from excessive risk-taking. T here is also the issue of what the RBI considers inappropriate risk- taking by banks. There is a uni- que tendency towards risk-taking in the banking industry—that is the nature of the beast. There are many companies that need to borrow capital, and evalu- ating future cash flows of these borrow- ers based on extrapolated balance sheets and industry trends involves a high level of uncertainty and estimation errors. There will always be bad loans in bank- ing—it is an unavoidable problem given the nature of the industry. RBI’s proposed rules to use compen- sation structures to discourage bank executives from short-term and exces- sively risky strategies mirror the propos- als of the Basel Committee on Banking Supervision. But they fail to address the unique problem that haunts the Indian banking sector: fraud, political cronyism and patronage. The primary source of India’s banking problems is excessive government control over banking assets, and using compensation reform to add- ress executive risk-taking is missing the forest for the trees. The writer is a financial economist and founder, contractwithindia.com Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com WhiletheRBIis attemptingtoreduce riskybehaviourby imposingrestrictive compensation structuresonprivate banks,itisallowing highlyleveredPSBs toreengageinrisky lendingwithoutan improvementintheir equityposition. OCCUPATIONAL HAZARD There is a unique tendency towards risk- taking in the banking industry | INDIA LEGAL | April 1, 2019 15
  14. 14. that fair decision-making requires “an element of femininity” in judges war- rants attention. He reportedly confessed that he possessed it in some measure which helped him be a better judge in imparting justice with mercy and com- passion. He recommends a feminine approach to justice as it helps to instil the desired sensitivity and impartiality in judging. However, it is questionable whether mercy and compassion are exclusively female attributes. Certainly they are desirable elements in judicial decision- making. Perhaps the vestiges of a patri- archal mindset continuing to dominate the men of contemporary times without their realising its presence in them probably made the judge attribute them to the female gender. This was acknowl- edged by Parliament when it incorporat- ed a provision in the Family Court Act that in family court appointments, other things being equal, a woman should be preferred. Equal protection under law and equality before law under the prevailing structure of Indian society are impossi- Column/ Gender Confession Prof NR Madhava Menon 16 April 1, 2019 NBIASED and fair justice is what is expected from judges generally and jus- tices of constitutional courts in particular. No one is unbiased to begin with as everyone is a product of the environment in which one is born and brought up. In the circumstances, for a lawyer to become a judge with unbiased qualities is a long-drawn process which requires introspection on one’s own atti- tude and conduct, as well as readiness to learn from training and experience. While some judges take this transforma- tion for granted, others make a consci- ous effort not only to acknowledge and overcome biases they carry, but also try to impress others at the receiving end about their impartiality on adjudging sensitive issues of human relationships. In this regard, Indian judges operating amidst multiple cultures, conflicting tra- ditions and customary practices have a difficult job on hand. In the above context, the remarks of Justice AK Sikri, who retired from the Supreme Court recently, to the effect ble without the use of instruments like preferential discrimination and affirma- tive action in favour of certain classes of people, including women. However, it is difficult to operationalise the constitu- tional intent because of the mindset problem as well as the dominance of males in the judiciary and the legal profession. And this is the context in which Justice Sikri’s observations assume significance. The question that arises is that if “a feminine approach to justice” is essen- tial for fair decision-making, what is being done to prepare them for the job. Justice Sikri said that judges with the passage of time acquire that sense of justice. Is it enough to leave it for judges to acquire it through experience over a period of time? Are there techniques to assess the extent of “feminine approach- es” in judges at the time of their app- ointments? How far can judicial educa- tion and training at the induction stage or thereafter instil such feminine qualities in those who do not possess them? Can legal education provide the foundation for cultivating feminine approaches in analysing and appreciat- ing legal provisions and judgments so that lawyers are at least conscious of the “feminine approaches deficit” in their pleadings, arguments and conduct of court proceedings? If Justice Sikri’s parting remarks could persuade those on the High Bench who make judicial selection and direct judicial training to take it seriously and follow it up with necessary changes, one can hope that not only will the judiciary have better judges, but the quality of justice will improve towards building a fair, egalitarian social order. —The author is a former director of the National Judicial Academy and Hony Director of the Kerala Bar Council MKN Academy for Continuing Legal Education, Kochi Canlegaleducationgivethefoundationforcultivatingfeminine approachessothatlawyersareatleastconsciousofthisdeficit? U A FEMININE VIEWPOINT (Above) Justice AK Sikri; Convocation ceremony of the students of GNLU, Gandhinagar, Gujarat Judges & Femininity Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
  15. 15. | INDIA LEGAL | April 1, 2019 17 Legal Eye/ EC Complaint HE Bar Council of Delhi has issued notice to two law firms after it received a letter from the Election Commiss- ion of India (EC) seeking action against them for advertising themselves as having “expertise in regis- tration of political parties with the EC”. In its complaint, the EC said two advocates, Shadab Khan and Irshad Khan, under the name of “ABS Associa- tes”, and a third advocate, Ashish Phule, advertised themselves as having expert- ise in registration of political parties with the EC. They also claimed that they had registered more than 400 and 50 political parties, respectively. “Like any work of legal nature, it would be open to any association or ind- ividual to hire/take help of any advoc- ate/experts in the matter of registration of their association as a political party under Section 29A of the RP Act, 1951 and the advocate/firm so hired has to work within the rules made for this pur- pose such as Bar Council of India Rules and Advocates Act, 1961,” said the EC. The EC, in its letter, said that regis- tration of political parties with the EC is governed by the provisions of Section 29A of the Representation of the People Act, 1951. An association or body of Indian citizens that intends to get itself registered as a political party has to make an application in the prescribed format with the EC. The EC requested the Bar Council of Delhi to take appro- priate action against the firms for viola- tion of the code of ethics for advocates. An advocate is prohibited from solic- iting work or advertising his/her servic- es. KC Mittal, chairman, Bar Council of Delhi, said: “We have issued a notice to them for violation of Rule 36 of the Advocates Act, 1961. As per the notice, they have appeared before us on March 15 and will be filing their reply before the next date which is April 29. We will be taking action against them if their reply is unsatisfactory.” The Bar Council of India, pursuant to its functions under Section 7(1) of the Advocates Act, 1961, read with its pow- ers to make rules under Section 49(1)(c), has framed Rule 36 which says: “An advocate shall not solicit work or adver- tise, either directly or indirectly, whether by circulars, advertisements, touts, per- sonal communications, interviews not warranted by personal relations, furni- shing or inspiring newspaper comments or producing his photographs to be pub- lished in connection with cases in which he has been engaged or concerned.” However, the rule was amended in 2008 after the Bar Council of India (BCI) told a three-judge bench of the Supreme Court headed by Justice BN Aggarwal that it has decided to allow advocates to advertise their services on the internet. This was after an advocate, VB Joshi, in 2000 challenged Rule 36, Section IV, of the BCI rules which pro- hibits the legal fraternity from advertis- ing its services. According to the amended rule, adv- ocates are allowed to furnish the follow- ing information on their website: name, address, telephone number, e-mail id; enrolment number, date of enrolment, name of State Bar Council where origi- nally enrolled, name of State Bar Cou- ncil where currently enrolled, name of the Bar Association which the advocate is a member of; professional and aca- demic qualification and area of practice. A proviso was added to Rule 36 of the Bar Council of India Rules, consequent to this resolution, which says: “Provided that this rule will not stand in the way of advocates furnishing website information as prescribed in the Schedule under inti- mation to and as approved by the Bar Council of India. Any additional input other than the particulars approved by the BCI will be deemed to be violation of Rule 36 and such advocates are liable to be proceeded with misconduct under Section 35 of the Advocates Act, 1961.” —Kunal Rao Rein Them in TheEChassoughtactionfromtheBarCouncilofDelhiagainst twolawfirmsforadvertisingtheirservicesinappropriately Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com T UNLAWFUL CONDUCT The two law firms advertised themselves as having expertise in political party registration
  16. 16. Spotlight/ Lokpal 18 April 1, 2019 N April 2014, just as the country was in the midst of the 16th Lok Sabha elections, the BJP, the main Opposition party, raised a hue and cry about a meeting that Prime Minister Manmohan Singh had scheduled to appoint a Lokpal. Arun Jaitley, BJP MP, had then writ- ten in his blog: “Reports have suggested that the PM is planning to convene a meeting of the Lokpal Selection Comm- ittee on April 27 or 28 to clear the app- ointment. Half the elections have been completed. 26 days remain for the dec- laration of the results and the formation of a new Government. Is it proper for the UPA, on the eve of its certain depar- ture, to rush through with the appoint- ment of the Lokpal. Certainly not.” The BJP had also petitioned the Election Commission, urging it to direct the government to put on hold the selec- tion of the Lokpal. The protests had the desired effect and shortly thereafter, the government announced that the Sele- ction Committee meeting had been put off. It meant that the centre had dro- pped the idea of appointing a Lokpal, leaving the task to the next government. Five years on, history is repeating itself, but with an ironic twist. With the first phase of elections to choose the 17th Lok Sabha barely three weeks away, the government in which Jaitley is the de facto No 2, has opted to do precisely what it had protested against earlier. On March 19, five years and two months after the Lokpal Act was notified to probe corruption cases against public servants, it appointed former Supreme Court judge Justice Pinaki Chandra Ghose as the country’s first Lokpal or anti-corruption ombudsman. A Selection Committee, comprising the prime minister, the chief justice of India, the Lok Sabha speaker and a senior lawyer finalised Justice Ghose’s name in a meeting held two weeks back. Apart from Ghose, five judi- cial and five non-judicial members were appointed as members of the body. Justice Ghose, 66, retired as Supreme Court judge in May 2017 after a tenure of four years and since then has been functioning as a member of the National Human Rights Commission. Under the law, the Lokpal has the pow- ers to investigate complaints against current and former prime ministers, Union ministers, Members of Parliament, government and PSU employees and key staff of non-govern- mental organisations receiving more than `10 lakh a year in foreign contribu- tions, among others. The March 19 appointments took place after the Supreme Court chided the government and set a deadline for putting in place the ombudsman. For over two years, the apex court had been urging the government to complete the task after a contempt petition was filed by an NGO against the government for not heeding an April 2017 judgment by the Court in the matter. The govern- ment had maintained that the Lokpal and Lokayuktas Act of 2013 had not been implemented because of the absence of a Leader of Opposition (LoP) in the current Lok Sabha. The Act stipu- lates that the LoP also be a member of the Selection Committee for appoint- ment of the Lokpal. In the judgment, the apex court had clarified that the appointment process need not be stalled merely due to the absence of the LoP. The government was averring the fact that the leader of the Congress party in the Lok Sabha, which had less than 50 Opaque Transparency Thoughthiscrucialposthasbeenfilled,nodetails wereavailableaboutthenormsadoptedbythe SearchCommitteetozeroinonthecandidatesnor werethedeliberationsrevealed By India Legal Bureau Thechidingfromtheapexcourtcameas agodsendforthegovernment.Aperusal ofthelistoftheeminencegrises that maketheSearchCommitteeshowsa distinctpro-governmentbias. I
  17. 17. | INDIA LEGAL | April 1, 2019 19 members in the House, could not be considered as the LoP as the party had less than 10 percent of the House strength as mandated. In fact, after the 2014 general elec- tion when no party had the requisite numbers to stake a claim for LoP, the Modi government had its task cut out— introduce a single amendment to modify the composition of the Selection Committee by substituting the recog- nised LoP with the leader of the single largest Opposition party in the Lok Sabha. A similar measure was necessi- tated in other laws like the one govern- ing the appointment of the CBI director, where the government promptly brought in a simple amendment which was passed by Parliament. The Modi government used the amendment card to the hilt to tilt the scales in its favour. On seven different occasions, Mallikarjun Kharge, Congress MP and the leader of the largest Opposition bloc in the Lok Sabha, had rejected the government’s invitation to the meeting of the Lokpal Selection Committee as he was invited not as a “member” of the panel but as “Special Invitee”. In response to an invitation from the Department of Training and Personnel inviting him to attend the meeting, Kharge wrote to Modi on March 14: “Since there is no provision under Section 4 of the Lokpal Act, 2013 for a Special Invitee to be a part of the Selection Committee or attend these meetings, I am forced to respectfully decline this invitation.” He also accused the government of using his refusal to attend past meetings of the Selection Committee as an “excu- se” to not appoint a Lokpal. Kharge said a Special Invitee would not have any rights of participation in the process of selection of the Lokpal and he could not accept the Opposition being made voice- less in a matter as critical as the Lokpal. A week earlier, the Supreme Court had given a 10-day ultimatum to the govern- ment to convene the Selection Com- mittee’s meeting to finalise the names for the Lokpal that had already been shortlisted by a search committee con- sisting of eminent persons who included retired judges, bureaucrats and bankers. As long as the BJP was in the Opposition, it was a keen campaigner for the Lokpal and had actively backed social activist Anna Hazare’s high-pro- file India Against Corruption movement in 2011-12. But though it has been in power at the centre for five years, it showed no alacrity or inclination to appoint the ombudsman. On the con- trary, the party and its government even put hurdles in the path of this crucial appointment. The wrangling over a seat at the high table for a representative of the Grand Old Party was only an excuse. The chiding from the apex court came as a godsend for the government. A perusal of the list of the eminence grises that make the Search Committee shows a distinct pro-government bias. This negates the very principle of the independence of the Lokpal. As if that wasn’t enough, the Selection Committee itself worked in mysterious ways, shrou- ded in secrecy and going against the spirit of the Lokpal Act which is that it work in as transparent a manner as pos- sible. No details were available about the norms adopted by the Search Committee to zero in on the candidates nor were the minutes of the delibera- tions revealed on the ground that the information was secret. This kind of obfuscation could make Hazare go on another indefinite fast. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com DuringaUPAmeetingontheLokpal,Arun Jaitley,thenBJPMP,blogged:“Isitprop- erfortheUPA,ontheeveofitsdeparture, torushthroughwiththeappointmentof theLokpal.Certainlynot.” MISSION SUCCESSFUL (Facing page) Former Supreme Court judge Justice Pinaki Chandra Ghose has been appointed as the country’s first Lokpal; a public movement for a Jan Lokpal Bill was initiated by activist Anna Hazare (above) UNI UNI
  18. 18. ment, there is no dearth of youngsters who like to flaunt their parents’ wealth or who act like superheroes driving con- vertibles and expensive bikes without silencers. As the police and heavy traffic during the daytime prevents them from driving at high speeds, they do so during the night after removing the silencers for a thrilling experience. That’s where judges, senior politi- cians, bureaucrats and leading lawyers come into the picture. Most of them live in sectors adjoining these roads. The lat- est remarks of judges are not the first to be made. Their predecessors too have Courts/ Noise Pollution 20 April 1, 2019 HE Punjab and Haryana High Court, which has juris- diction over the two states and the Union Territory (UT) of Chandigarh, has been pro-active in dealing with civic issues pertaining to Chandi- garh. This UT does not have a legislative assembly and depends on funds and directions from the central government. The High Court has been taking up issues like traffic management, encro- achment on public land, deposit of silt in the local Sukhna Lake, delay in inau- gurating the new international airport, lack of adequate international flights and preservation of Chandigarh’s archi- tectural plan. The latest issue on its plate is noise pollution caused by motor- cycles without silencers, use of loud- speakers and jagratas and nagar kir- tans caused by marriage parties and other social functions. “If I can hear high decibel sounds from motorcycles from my house, what must be the plight of the rest of the city,” bemoaned Chief Justice of the Punjab and Haryana High Court Krishna Murari during the hearing of a public interest litigation. The official residence of the chief justice is located in a posh area of the city which has residences of the chief ministers of Punjab and Har- yana, senior ministers, officers and lead- ing lawyers. In the past, too, some judges had complained of youth driving high-end motorcycles after removing their silencers. The city is home to the super rich, including big landlords and rich indus- trialists from Punjab, Haryana and Himachal Pradesh. In such an environ- suffered and pulled up the Chandigarh traffic police. It had responded by set- ting up nakas and “challaning” many youngsters for the noise pollution. The police had even provided free silencers to be fitted on such bikes. It had gone to the extent of warning motorcycle repair shops against removing silencers from motorcycles. The Union Territory’s Senior Superintendent of Police (Traffic), Shashank Anand, who has earned acco- lades for his pro-active role in bringing discipline on the roads, said that senior officers have been deputed to tell shop- keepers who sell vehicle spare parts and motor mechanics not to modify bikes for producing a thumping sound while driv- Fedupwithincreasingnoiselevelsduetobikesandmarriageparties,thePunjabandHaryanaHigh Courthasformedacommitteeofsixleadinglawyerstocomeoutwithsuggestionstocurbthemenace By Vipin Pubby in Chandigarh T Deadly Din Richyoungstersdriveexpensivebikes withoutsilencers.Asthepoliceandheavy trafficduringdaytimepreventthemfrom drivingathighspeeds,theydosoat nightafterremovingthesilencers. BREAKING SOUND BARRIERS Youngsters driving noisy bikes in Chandigarh has become a menace for its residents UNI/ Representative image
  19. 19. | INDIA LEGAL | April 1, 2019 21 ing. His department has also written to the SSPs of neighbouring towns— Mohali, Panchkula and Ropar—to keep a check on the mechanics located there as in most cases, bikes “challaned” in Chandigarh for sound pollution were found to have been modified in these towns. Its teams had also been meeting and sensitising mechanics in Chandigarh about modification of bikes and its consequences. “If mechanics still modify bikes, stern action will be taken against them too,” he said. There was a provision for a penalty of `5,000 and imprisonment up to six years under the Punjab Pollution Control Board rules, applicable in Chandigarh, for aiding or abetting noise pollution, he added. Prodded by the High Court, the traf- fic police had launched a special drive at night against these bikes. So far, the traffic police has “challaned” over 700 bikers for noise pollution. It has impounded 71 motorcy- cles for causing noise pollu- tion, with half of them having modified cylinders. They were released only after these cylin- ders were removed and stan- dard silencers were restored. The SSP said that the traf- fic police has recommended tripling the fee for challans issued for noise pollution from the current `1,000 to `3,000 and from `3,000 to `5,000 for subsequent offences. In order to widen its net, it has also requested resi- dents to share information or videos of such violators on the Facebook page and WhatsApp number of the traffic police. However, the burgeoning number of “fun-loving” and spoilt youth who come up with innova- tive ideas to test their expensive and high-end motorcycles is getting out of hand. Fed up with the increasing num- ber of such incidents which has made life a nightmare for the residents of the affected sectors, the High Court has now formed a committee of six leading law- yers, headed by senior advocate Man- mohan Sarin, to come out with sugges- tions to curb the nuisance. The committee also includes two other senior lawyers, Reeta Kohli and Akshay Bhan, besides Punjab law officer Sheerish Gupta, Haryana law officer Deepak Baliyan and Chandigarh’s stand- ing counsel, Pankaj Jain. The committee has been asked to submit its report by April 30, which is the day fixed for the next hearing. During the hearing of the petition, the High Court noted that there are three types of noise pollution. This includes the pollution caused by loud- speakers fitted at religious places, that caused by music played at marriages and public functions while the last one is caused by vehicles without silencers. T he division bench of Justices Murari and Arun Palli observed that under Article 21 of the Constitution, people have the right to live with dignity. No one has the right to take away this freedom and causing noise pollution constituted that interfer- ence. The Court had taken suo motu notice of the noise emanating from mar- riage venues and farmhouses in the sub- urbs of Chandigarh where loud music is played till late hours, disturbing people living in the vicinity as well as wildlife in the peripheral areas. The notice was taken following a ref- erence from Justice GS Sandhawalia of the High Court. He had said in his note that the UT police was expressing help- lessness as it had no control over the amplified music coming in from villages in Panchkula, Mohali and the outskirts of Chandigarh, despite several com- plaints received from the villagers. The judge in his note had said: “The issue arises that who will guard the guardians and whether such elected rep- resentatives/officers are beyond control and have total disregard for the other citizens of the country and the residents of the villages and the wildlife that is sensitive to such loud noise, and seeks refuge in sanctuaries shrinking on ground of human greed.” The note from Justice Sandhawalia was referred to the chief justice’s bench which treated the issue as a PIL and subsequently issued notice to Punjab, Haryana and Chandigarh for April 30. Officials from Punjab, Haryana and the Union Territory of Chandigarh can expect an earful unless they come up with a solution to the vexed problem. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com SHOWING CONCERN (Clockwise from far left) Chief Justice of the Punjab and Haryana High Court Krishna Murari; Justice GS Sandhawalia; the Chandigarh traffic police has booked many for noise pollution twitter@ssptfcchd
  20. 20. Courts/ Government Doctors’ Exodus 22 April 1, 2019 XPRESSING concern over government doctors who abandon their duties for dev- eloping their private practice and “personal enrichment”, the Madras High Court, in a judgment delivered on March 13, 2019, has directed the state government to constitute a monitoring committee to supervise the attendance and assess the performance of government doctors as well as look into the maintenance of government hospitals as per prescribed standards. The Court took serious note of the tendency of government doctors to, after gaining experience and exp- loiting government resources for acquir- ing their speciality qualifications and practical experience, leave their job for personal enrichment. To understand the issue better, it may be pertinent to look at Clause 7.23 of the MCI Code of Ethics Regulations, 2002, which says that “if a physician posted in a rural area is found absent on more than two occa- sions during inspection by the Head of the District Health Authority or the Chairman, Zila Parishad, the same shall be construed as a misconduct if it is recommended to the Medical Council of India/State Medical Council by the State Government for action under these Regulations”. Further, Clause 7.24 says “if a physician is posted in a medical college/institution both as teaching faculty or otherwise, he shall remain in hospital/college during the assigned duty hours. If they are found absent on more than two occasions dur- ing this period, the same shall be const- rued as a misconduct, if it is certified by the Principal/Medical Superintendent and forwarded through the State Gov- ernment to Medical Council of India/ State Medical Council for action under these Regulations”. However, by way of a 2003 notifica- tion, these two clauses were convenient- ly omitted. The notification reads as fol- lows: “In exercise of the powers confer- red under section 20A read with section 33(m) of the Indian Medical Council Act, 1956, the Medical Council of India, with the previous approval of the Cent- ral Government, hereby makes the fol- lowing amendments to the Indian Med- ical Council (Professional Conduct, Eti- quette and Ethics) Regulations, 2002: The regulations, 7.23 and 7.24 appear- ing under Chapter 7, shall be omitted.” As a result, doctors posted in rural areas are regulated by their employer under the state service rules but not by the medical council. In the above case, the Madras High Court said that under Article 21 of the Constitution, the right to life includes availability of decent medical facilities to all citizens and the State is duty-bound to ensure that medical treatments and facilities are provided at par and equally. The Court further stated: “Government hospitals are equipped with advanced medical equipment and infrastructure. But the utilisation of medical equipment and infrastructural facilities is not regu- lated. The machineries are not maintai- ned properly as per the instructions pro- vided by the manufacturers. Sometimes, medical equipment and facilities are misused by medical practitioners and employees of hospitals by mishandling or not operating as per the instructions.” The Court further noted that: “Gov- ernment doctors gain rich experience at the cost of public money....Poor men are Ill-gotten Gains TheMadrasHighCourthastakenseriousnoteofthegrowing occurrenceofgovernmentdoctorsabandoningtheirdutiesto startprivatepracticefor“personalenrichment” By Dr KK Aggarwal E CALL OF DUTY A free general health check-up camp organised by Dispur Hospital, Guwahati Photos: UNI
  21. 21. | INDIA LEGAL | April 1, 2019 23 being used as guinea pigs for learning. A poor man’s dead body is dissected and provided for learning. The government resources and the life of poor men are under the mercy of these government doctors. If no adequate measures are taken to monitor the quality of treat- ment and performance, the State is fail- ing in its duty to uphold the right to life ensured to every citizen under Article 21 of the Constitution.” The Court also noted that apart from the prevalence of corrupt practices in government hospi- tals, doctors are irregular in attending duty, resulting in deaths of several pati- ents, not all of whom are in a position to afford quality treatment in corporate hospitals. The situation results in denial of social justice and equal treatment. The Court went on to say that the eco- nomic condition of a citizen cannot be a ground for denial of quality treatment and thus, the government is duty-bound to ensure cleanliness, availability of doc- tors including speciality treatment, paramedical staff, supporting staff, etc. Last year, in the matter of State of Uttar Pradesh & Others vs Achal Singh, the Supreme Court had dismissed a plea by a government doctor, Achal Singh, seeking voluntary retirement from gov- ernment service. The apex court had held that the government may fill the vacancies, if any. But that would not bring doctors of experience at senior level, and exodus of doctors cannot be permitted to weaken the services when public interest requires them to serve for the sake of an efficient medical pro- fession and fulfil the Directive Principles of State Policy. The Court further stated that when services are required, denial of voluntary retirement is permissible under the Medical Council Rules appli- cable in the state of Uttar Pradesh. B ut why are so many government doctors quitting? What are the systemic compulsions and pitfalls that are compelling them to take such a step? Some possible reasons are: (a) Doctors are often not given their due salaries. The pay structure differs from state to state. Most doctors, from day one itself, start looking for jobs in metro cities for better pay; (b) Doctors do not find incentives in rural areas. Thus, rural salaries should be more than or equal to urban salaries as in Gulf coun- tries; (c) The magnitude of care may dif- fer, but the quality of care should be the same pan-India. All similar hospitals should have similar infrastructural facil- ities; (d) Doctors who are in the prime of their life (immediately after MBBS or MD) should not be posted to areas where they start de-learning their knowledge and experience due to non- availability of drugs, basic machines and other infrastructure; (e) Most doctors also shift for better prospects, like in any other industry, and this is not against the law. Even the Supreme Court, in the 2011 case of Kanwarjit Singh vs State of Punjab, held that if a medical professio- nal has acted in a manner which is con- trary only to government instructions de hors any criminal activity or criminal negligence, the same would constitute an offence neither under the Indian Penal Code nor under the Prevention of Corruption Act. To remedy the problem of doctors abandoning government services, the following corrective steps can be taken: (a) The MCI must reamend its ethics regulation and re-bring this in their do- main; (b) States must ensure proper maintenance of medical infrastructure and equipment; (c) Every hospital must have an internal redressal mechanism to deal with such complaints; (d) The government should ensure a uniform pay structure for government centres pan-India. It must also be borne in mind that when a doctor is transferred from one place to another, often he/she resigns from the post or seeks voluntary retirement as he/she doesn’t want to move out and leave the lucrative private practice, and joins duty only when he/she obtains a posting to a place of his choice. In such a scenario, people should not be deprived of the services of good doctors. —The author is National President, Heart Care Foundation of India, and President-elect, Confederation of Medical Associations of Asia and Oceania Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Doctorsinmanygovernmenthospitals areirregularinattendingduty,resulting indeathsofseveralpatients,notallof whomareinapositiontoaffordquality treatmentincorporatehospitals.
  22. 22. Courts/ Ryan International School 24 April 1, 2019 FTER three years, the parents of six-year-old Devansh Meena, who drowned tragically in Ryan International School, have moved the Delhi High Court for compensation. The letter patent appeal has been filed against a single judge’s order dated Feb- ruary 13, 2018, which had disposed of the parents’ plea for compensation, say- ing that the matter was not “a case of res ipsa loquitur”. Devansh was a student of Class I in Ryan International School, Vasant Kunj, New Delhi. On January 30, 2016, there was a poetry competition for the Class I students who were called to school on a day which otherwise would have been a holiday. After the competition was over, the teachers noticed that Devansh was missing. Subsequently, the teachers and some of the students started searching for the child. His body was found floating in the pump room under the amphitheatre. The child’s father has moved this petition against Ryan International School and some of its members. He has alleged that after the child was found, the swimming teacher refused to rescue the boy and asked the sweeper to get into the water and do it who also refused. Ultimately, a Class XI student swam in and rescued the boy, who was then rushed to a hospital but was decla- red brought dead. After the incident, the sub-divisional magistrate ordered an inquiry against the school and found that the pump room had water filled up to five feet. Further, the small pump room was sur- rounded by open wiring, electric motors and other hazardous substances. The petitioner then filed an FIR against the school under Section 304A of the Indian Penal Code. It was alleged that the school had acted negligently A Question of Accountability TheparentsofachildwhodrownedinawatertankinRyanInternationalSchoolin2016have movedtheDelhiHighCourt,seekingcompensationfromtheschoolauthorities A UNSPEAKABLE TRAGEDY (Inset) Six-year-old Devansh Meena, who was a student of Class I; (left) his parents, Mamta and Ramhet Meena Ramhet Meena /Facebook
  23. 23. | INDIA LEGAL | April 1, 2019 25 and its staff had failed to locate the child in a timely manner. Further, there were no CCTV cameras in place to record the movement of children, and there was no caretaker appointed for the pump room area that was left without supervision. The investigation conducted by the police also found glaring loopholes in the management of the school. The petition was brought before the Delhi High Court, alleging that the principal and school staff had tried to malign the image of the dead child by labelling him a “special” child when, in fact, Devansh was a bright and stu- dious child and there was nothing to show otherwise. The single judge, however, dismissed the petition, saying it was not a case of res ipsa loquitur, a legal maxim which means “a thing speaks for itself”. The single judge’s order means that the pres- ent case does not show apparent negli- gence on the part of the school so as to qualify for res ipsa loquitur status. The petitioner has now approached the divi- sion bench of the Delhi High Court comprising Chief Justice Rajendra Menon and Justice VK Rao, praying for compensation to the tune of `10 crore. This isn’t the first time that a school is being dragged to court for compensa- tion on the charge of negligence towards students. In September 2017, the Maha- rashtra State Commission had held a high school liable for negligence and ordered it to pay an amount covering the medical expenses and litigation costs. The incident in question involved two students who got into a fight in which one of them fractured his shoul- der and had to undergo surgery and could not attend school for a long time. The whole incident was captured by a CCTV camera. Although the Additional Consumer Forum had dismissed the petition, the Commission, while hearing the appeal, awarded the student, Rahul Joshi, a compensation of `1.5 lakh for medical expenses, `50,000 for mental anguish and `25,000 as litigation costs. I n another case, in 2016, the Nation- al Consumer Disputes Redressal Commission (NCDRC) imposed a compensation of `50 lakh on a Benga- luru School for negligence. In this case, a student, Akshatha, was taken on a study trip to Nainital in 2006 and sub- sequently fell ill but the school staff did not pay any attention to her condition and made her carry on with the sched- ule. During the trip, she had several seizures and kept shivering the entire time. Ultimately, she fell unconscious in her hotel room, and the door had to be broken to rescue her. Only after that were her parents notified of her ill health. She was then taken to a hospital where the doctors declared that she was suffering from meningoencephalitis. The doctors also said that had she been given timely help and medication she would have been alright. Due to the un- fortunate incident, the student suffered serious brain damage and lost some of the motor functions in the lower limbs and was incapacitated. The brain dam- age was so severe that she was unable to recognise even her parents. The NCDRC noted “negligence, apathy and indifference” on the part of the school. It further stated that “it can be safely said that the teachers accom- panying the complainant and the other children were negligent in performance of their duty, and the appellants, they being the employers of those teachers, are vicariously liable for the loss, result- ing from the said negligence and there- fore, are liable to compensate the complainant”. A school is a place for nourishment of young students where they can live in an environment that supports and pro- motes growth. It is absolutely necessary that the environment be safe as well. The teachers and school staff act as tem- porary guardians of the children and should be made accountable for any negligent behaviour. —By Naved Ahmed Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com UNDER THE SCANNER Devansh’s parents have alleged that gross negligence by the principal and staff of Ryan International School led to their child’s tragic death on the school premises Thechild’sparentshaveapproachedthe divisionbenchoftheDelhiHighCourt comprisingChiefJusticeRajendraMenon andJusticeVKRao,prayingforcompen- sationtothetuneof`10crore.
  24. 24. Global Trends/ UNSC/ Masood Azhar 26 April 1, 2019 RE we missing the wood for the trees by focusing on China putting a “tech- nical hold” on the listing of Masood Azhar, chief of Pakistan-based Jaish-e- Mohammed (JeM), as an international terrorist under the UN sanctions re- gime? It would seem so because China’s response was not unexpected; it had been taking the same stance for the last decade. And it is Pakistan, not China, who is the main villain of the piece. India’s relentless campaign to get the UN Security Council (UNSC) to list Azhar as a global terrorist is not the whole, but part, of its efforts to interna- tionally isolate Pakistan. The fact that 14 members of the UNSC supported listing the JeM leader against China’s lone negative vote speaks for the success of India’s cam- paign against Pakistan for sponsoring and supporting trans-border terrorist operations against India. The proposal to designate Azhar un- der the 1267 Al Qaida Sanctions Com- mittee of the UNSC was moved by Fra- nce, the UK and the US on February 27, nearly two weeks after a JeM-inspired suicide car bomb attack on a CRPF con- voy killed 40 people in Pulwama in J&K. The committee members had 10 working days to raise any objection to the proposal. China had put a “technical hold” on the proposal, seeking “more time to examine” it. It said the move would give it time for a “thorough and in-depth assessment” of the case and help the parties concerned to engage in more talks to find a “lasting solution” accept- able to all. China’s explanation would have been laughable, except for the grim fact that it enables Pakistan to delay concrete action to dismantle terror groups operating from its soil against India. The anger against China after it blocked the UNSC move was palpable on Indian social media. People could not understand what was “technical” about recognising Azhar as a global terrorist. There were calls for boycott of Chinese goods, though they have become indis- pensable to trade and commerce and to the growth of mobile communication and the power industry in the country. The public outrage against China is understandable as the grim sequel to the Pulwama attack took India and Pakistan to the brink of war. India had responded to the attack with an air strike on a JeM training centre at Bala- A Convenient Pawn China’sreluctancetodeclaretheJeMchiefaglobalterroristisevidenceofitssymbioticties withPakistan.ItwillprotectittokeepacheckonIndia’sinfluenceintheregion By Colonel R Hariharan A YET ANOTHER REPRIEVE (Above) Masood Azhar, chief of the Pakistan-based Jaish-e-Mohammed; (top) a meeting of the United Nations Security Council UN Photo/ Eskinder Debebe
  25. 25. | INDIA LEGAL | April 1, 2019 27 kot in Khyber Pakhtunkhwa province in Pakistan. The Pakistan Air Force’s coun- ter-strike in J&K two days later and the capture of an Indian fighter pilot, Wing Commander Abhinandan Varthaman, in Pakistan turned the situation ugly. Further deterioration of the situation was averted when the US, China, Saudi Arabia and UAE intervened and clai- med credit for defusing the situation after Pakistan released the Indian pilot. But the security situation along the India-Pakistan border and LoC in J&K continues to be anomalous. Pakistan continues to fire across the border while Indian troops are carrying out opera- tions to eliminate terrorists and security agencies are uncovering and disman- tling sources of supply and finance of Pakistan-inspired terrorist support net- works within the state. H igh public expectations on l’affaire Azhar have to be un- derstood in the context of events that preceded it. India had been regularly briefing foreign diplomats about the situation leading up to the UNSC meeting. It gave a detailed do- ssier on Azhar and JeM involvement in terrorist activity to the members, includ- ing China. The media gave a huge build- up before the UNSC met to consider the listing of Azhar. Unfortunately, the “friend or foe” binary vision of the visual and social media in the country got very shrill in the events leading up to the UNSC mee- ting. As the Indo-Pak confrontation happened close to the general election, it inevitably led to a lot of chest-thump- ing of the ruling party, countered equal- ly and vehemently by the Opposition. Cumulatively, these developments influ- enced their understanding of China’s stand on the Azhar issue. People expect- ed China to be more sensitive to India’s concerns about terrorism as their hopes were kindled after Prime Minister Narendra Modi met Chinese President Xi Jinping at the Wuhan unofficial sum- mit last year. In this context, the statement of Liu Zongyi, senior fellow at the Shanghai Institutes for International Studies, quoted in the Communist Party of China’s tabloid, Global Times, is inter- esting. He said the question of whether to list Azhar as a global terrorist has been a long-lasting dispute between China and India. In 2017, New Delhi’s demand was partly behind the Doklam stand-off. “If New Delhi succeeds in having both JeM and its leader black- listed, Islamabad would be branded a state sponsor of terrorism and isolated on the international stage. This is what India wants to pursue till the end,” he added. International columnist Fareed Zak- aria’s quote that “foreign policy is a ma- tter of costs and benefits, not theology” applies to China’s negative stand on Azhar. It has shown that China’s app- roach to India will be transactional, selective and based on the hard reality of its national self-interest rather than ephemeral notions of harmony and bonhomie. China-Pakistan relations are built upon what Chanakya said long ago: “There is some self-interest behind every friendship. There is no friendship without self-interest. This is a bitter truth.” Pakistan is increasingly becoming dependent on China—strategically, eco- nomically, politically, diplomatically and militarily. China will continue to use Pakistan’s vulnerability to protect and pamper it, not merely because it is its long-term friend and strategic ally in South Asia. It suits China that Pakistan firmly keeps a check on India’s strategic strength and influence in the region. Pakistan enlarges China’s options in handling India, its potential challenger in the region and beyond. Moreover, China is under pressure to make a success of the China Pakistan Economic Corridor (CPEC) in which it has invested over $40 billion to show- case the Belt and Road Initiative which has come under heavy weather. CPEC’s infrastructure would enable China to flex its strategic naval power to secure its interests in the Indian Ocean Region and South Asia, which had been domi- nated by India’s naval power. PeopleexpectedChinatobemoresensi- tivetoIndia’sconcernsaboutterrorism astheirhopeswerekindledafterPM ModimetChinesePresidentXiJinping attheWuhanunofficialsummitlastyear. PIB
  26. 26. Global Trends/ UNSC/ Masood Azhar 28 April 1, 2019 Diplomat Gautam Bambawale, who served as India’s ambassador to both Islamabad and Beijing, while addressing the Indian Association of Foreign Affairs Correspondents, recently put the Wuhan meeting in perspective. He said he was averse to the term “Wuhan reset” as some people have described the infor- mal summit. He said both India and China “saw what happened at Doklam, analysed that particular experience and drew their own conclusions from it”. Then they independently came to the decision that it was “much more impor- tant to have a relatively harmonious and balanced relationship between the two most populous states on the globe”. He cautioned that “if the word (Wuhan) ‘reset’ in any way implies that the tensions and ill temperedness of Doklam was being brushed aside or under the carpet, then I strongly object to this term”. He added that he would go along with the use of the term “reset” if it described “a cool reappraisal of the relationship and a desire to put it on an even keel”. On the Azhar episode, the diplomat was of the opinion that India must have a transactional approach to the issue. “Perhaps China will permit the listing to move ahead if there is something we can do for them or offer them in return? If there is, a bargain can indeed be struck,” he added. So it is not surprising that despite all the media hoopla over the Azhar epi- sode, India’s take on the issue was real- istic as the Ministry of External Affairs’ (MEA) carefully worded statement showed. The statement did not even name China, but merely expressed dis- appointment “by this outcome. This has prevented action by the international community to designate the leader of Jaish-e-Mohammed, a proscribed and active terrorist organization, which has claimed responsibility for the terrorist attack in Jammu and Kashmir on Feb- ruary 14, 2019”. However, one wishes the MEA had named China in the state- ment, at least to signal that India was not happy with its role. C hina is here to stay as a powerful neighbour. It is in India’s interest to maintain a cordial working relationship with it, regardless of the hiccups in bilateral relations from time to time. Bambawale in his speech sug- gested an eight-point Pune Plan to build better relations with China. These include maintaining high-level political relations, enhanced and expan- ded military exchanges between both countries, working to increase Chinese tourist visits to India through public-private partnership, focusing on attracting more Chinese students, creating a financial model for Chinese firms to modernise our rail- way stations, persuading it to join the International Solar Alliance as a member and expanding engagement with the Shanghai Cooperation Organisation. However, some of these proposals might become poli- tically controversial or incon- venient. But any foreign poli- cy strategy to deal with China runs the risk of getting mired in political controversy. After Modi took foreign policy initiatives to the political main stage with his signature showmanship, foreign policy has become one of the mainstream issues in the national politi- cal discourse. In a way, it has become a victim in the raucous election campaign, with rival political leaders making short shrift of nuanced policy initiatives to dispense their penny wisdom to the masses. Can political parties and leaders rise above petty politics to build a con- sensus on foreign policy? American elder statesman Henry A Kissinger may well be speaking of India when he remarked that “our great for- eign policy problem is our divisions at home. Our greatest foreign policy need is national cohesion and a return to the awareness that in foreign policy, we are all engaged in a common national endeavour”. Can our polity prove that Kissinger’s words do not apply to India? —The writer is a military intelligence specialist on South Asia, associated with the Chennai Centre for China Studies and the International Law and Strategic Studies Institute Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com LiuZongyi,afellowofa think-tankinChina,saysif IndiasucceedsinhavingJeM andAzharblacklisted,Islama- badwouldbeisolatedglobally. Internationalcolumnist FareedZakaria’sviewthat “foreignpolicyisamatterof costsandbenefits...”applies toChina’sstandonAzhar. GautamBambawale,former ambassadortoIslamabadand Beijing,saysthatIndiamust haveatransactionalapproach ontheAzharepisode.
  27. 27. Global Trends/ Malaysia/ Zakir Naik 30 April 1, 2019 N 1970, Dr Mahathir bin Moha- mad wrote a controversial book, The Malay Dilemma. As prime minister of Malaysia for the second time at the ripe age of 93, he faces another dilemma—how to deal with the presence of fugitive controver- sial Islamic preacher Zakir Naik in his country. In fact, Naik has become a Hafiz Saeed of sorts for Malaysia. His presence has frayed racial ten- sions and is posing a headache for the new Malaysian government. It cannot deport him because of his popularity among the Malay Muslims but, at the same time, wants to keep a check on his controversial sermons as they threaten to rip apart the multi-racial fabric of Malaysian society. Unlike India, where he faces terror and money-laundering charges, the hardline Islamic preacher is a popular figure in Malaysia where more than 60 percent of the population is Muslim. This is the reason why both Mahathir and his predecessor, Najib Razak, ref- used to deport him to India because it could be interpreted by hardline Muslim organisations as “anti-Islam”. Murmurs against Naik started in 2016 when it emerged that two of the militants who had stormed into an upmarket café in Dhaka, Bangladesh, killing 22 people, were “inspired by his preaching about Islam”. At that time, the Barisan Nasional (National Front) government led by Razak was in power. The Barisan Nasional coalition comprises three major ethnic political parties—United Malays National Organisation (UMNO), Malaysian Chinese Association (MCA), and Malaysian Indian Congress (MIC). For the first time in the history of Malaysia, the MCA and MIC questioned their government’s continued support to Naik as they felt that his presence in Malaysia was detrimental to society. The then health minister in the Razak government and MIC president, S Subramaniam, was the first one to express his disagreement with Naik’s stay in Malaysia and said that his activi- ties “are outside the Malaysian context”. “I don’t think Malaysia needs Zakir Naik. Is he going to contribute to the advancement of Islam in the country? The answer is no,” said Subramaniam. The issue took a serious turn when a OnATightLeash TokeepboththeMalaysandnon-Malayshappy,PMMahathirbinMohamadhasallowedthe controversialIslamicpreachertostayinthecountrybutwithanunannouncedgagorder By Asif Ullah Khan I THE FUGITIVE PREACHER Zakir Naik’s stay is threatening the multi-racial fabric of Malaysia and he is now a major problem for the government canselori.umt.edu.my
  28. 28. | INDIA LEGAL | April 1, 2019 31 group of 19 human rights activists filed a civil suit against the Malaysian gov- ernment in March 2017, accusing it of failing to protect the country from the controversial televangelist. The suit, am- ong others, sought a government decla- ration that Naik was a threat to national security, called for a ban to prevent him from entering the country, and sought his arrest and deportation immediately. The group, comprising different reli- gious and ethnic backgrounds, said that Naik was an “undesirable person” and “a preacher of hate” who was currently roaming free in Malaysia. Soon rumours started doing the ro- unds that the reason why the Razak gov- ernment was taking no action against Naik was because it had already granted him Malaysian nationality. Finally, on April 18, 2017, then Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi clarified the government's posi- tion, saying that Naik had not been granted citizenship but admitted that he was granted permanent resident (PR) status about five years earlier when Hamidi was not the home minister. The Chinese coalition partner of the then Razak government, Malaysian Chinese Association (MCA), questioned the granting of PR status to Naik. The MCA’s religious harmony bureau chair- man, Datuk Seri Ti Lian Ker, said the government should not risk the coun- try’s spirit of mutual understanding and respect. “The government, especially the home ministry, must also account as to why Zakir was granted PR status and special consideration, seeing that he is known for creating tension,” he said. T his led Naik’s supporters to mount a counter-offensive. The first one to come to his rescue was PAS (Pan-Malaysian Islamic Party), which made it into an “us” versus “them” issue. PAS information chief Nasrudin Hassan, hitting out at Subramaniam said Naik was a renowned scholar, respected by Muslim clerics and the Muslim world as a whole. He then “advised” Subramaniam not to go over- board with his statements, especially related to the interests of the Muslims in the country, and added that being a health minister, he should not interfere in this matter. Another right-wing group, Perkasa or Pertubuhan Pribumi Perkasa (Malay for “Mighty Native Organisation”), which honoured Naik with an award for his contributions to the struggle for Islam, also jumped into the fray and took offence to Subramaniam, a Hindu, interfering in Muslim affairs. Perkasa president Datuk Ibrahim Ali said that Subramaniam should resign from the Razak cabinet if he could not agree with the government’s decision to grant PR status to Naik. Perkasa even told its members to campaign against Subra- maniam and other MIC candidates in the general election. However, things changed completely when Malaysia’s landmark 2018 general election brought the 93-year-old Mahathir back to power in his new avatar as the head of the Alliance of BothPrimeMinisterMahathirbinMohamadandhispredecessor,NajibRazak,have refusedtodeportZakirNaiktoIndiabecausetheyfeeltheiractioncouldbeinterpreted as“anti-Islam”bythehardlineMuslimorganisationsinMalaysia. LOCAL SUPPORT Zakir Naik is a popular figure in Malaysia where Muslims are in a majority UNI
  29. 29. Global Trends/ Malaysia/ Zakir Naik 32 April 1, 2019 Hope (Pakatan Harapan), which com- prises mostly multi-racial, secular and centre-left parties. Since then, Naik has been lying low. He lives in a condomini- um in Putrajaya, the administrative cap- ital of Malaysia, and is only seen during Friday prayers. He had made repeated attempts to meet Mahathir and even jostled with the crowd to greet him when the latter came to Putrajaya mosque to offer prayers. And finally, when he met Mahathir last July, he tha- nked the new government for not dep- orting him to India and vowed that he would abide by all laws of the country. M ahathir, on his part, said that as long as Naik was not “cre- ating any problems” in Mal- aysia, he would not be deported. But the prime minister has tactfully banned his public lectures and appearances, although the official government version denies that there is any ban on Naik’s lectures. All his attempts to appear in public have been nipped in the bud on the basis of “technical grounds”. Recently, an Islamic NGO called the Islamic Propagation Society Interna- tional (IPSI) had sought permission to use the city stadium in the Malaysian state of Penang for Naik’s lecture but the Penang Island City Council refused the permission on “technical grounds”. Its community service director, Rashidah Jalaludin, in a letter dated February 13, said that IPSI’s request “could not be considered” as the city stadium had been recently upgraded and was being used for sports. Perhaps the venue was not suitable for the “ceramah” (lecture), the official added. Interestingly, Penang Deputy Chief Minister Ramasamy Palanisamy, a member of the Democratic Action Party (DAP), a coalition partner of Pakatan Harapan, has on numerous occasions questioned the government’s decision not to extradite Naik to India. In April 2015, Ramasamy called Naik “Satan” and accused him of making speeches “designed to promote hatred of other faiths”. He urged, via Facebook, “peace-loving Malaysians” to lodge police reports against Naik so that he can be banned from entering the coun- try. “Let us get ‘Satan’ Zakir Naik out of this country! He is a Muslim preacher and evangelist who has nothing but hatred and contempt for non-Muslims,” wrote Ramasamy. “He has been banned in Canada and UK (United Kingdom) for his hate lec- tures. Even some sections of the Mus- lims in India have termed him a liar, man of half-truth and purveyor of hate,” Ramasamy wrote. However, this did not go down well with the Malay Muslims. Not only did he face an “online onslaught”, even his office in Penang was bombed with a petrol explosive. The question is: Can Malaysia afford to defend such a polarising figure at a time when a very mellowed Mahathir heads a coalition government which comprises multi-ethnic, secular parties? Many Malaysian commentators say Naik has become a national dilemma as his presence continues to cause uneasiness and discomfort in the multi-religious and multiracial community. They say that although Naik talks about propagating Islam and social har- mony, there is a distinct waft of cultural and religious imperialism in his record- ed comments. Among them is the infa- mous statement to the effect that an Islamic country should not allow churches to be built because Christianity is a religion that is “wrong”. Christianity is practised by more than nine percent of the Malaysian population and there are five Christian ministers in the Mahathir cabinet. Is Naik worth the rift he is causing in Malaysian society? The reasonable answer will be a big “No”. But to keep both the Malays and non-Malays happy, Mahathir has allowed Naik to stay in Malaysia and at the same time has tight- ened his leash over him by imposing an unannounced gag order. —The writer is a former deputy managing editor of The Brunei Times Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Theissuetookaseriousturnwhen agroupofhumanrightsactivistsfiled acivilsuitagainsttheMalaysian government,accusingitoffailingto protectthecountryfromZakirNaik. THREATENING RELIGIOUS HARMONY Naik even proposed that Malaysia should not allow churches to be built maxpixel.net
  • gopinath007

    Apr. 9, 2019

BANKING CRISIS Is Compensation Reform the Answer? Financial analyst Sanjiv Bhatia analyses the impact of excessive government control over assets

Views

Total views

300

On Slideshare

0

From embeds

0

Number of embeds

139

Actions

Downloads

0

Shares

0

Comments

0

Likes

1

×