India legal 01 april 2019

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
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April 1,2019
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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

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

ContentsVOLUME XII ISSUE20
APRIL1,2019
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Senior Content Writer Punit Mishra
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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

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
Drinking Blues
REGULARS
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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

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

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
—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

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
?
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

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

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

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

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
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

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

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
T
UNLAWFUL CONDUCT
The two law firms advertised themselves as
having expertise in political party registration

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

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.
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

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

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.
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

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

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
Doctorsinmanygovernmenthospitals
areirregularinattendingduty,resulting
indeathsofseveralpatients,notallof
whomareinapositiontoaffordquality
treatmentincorporatehospitals.

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

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
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.

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

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

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
LiuZongyi,afellowofa
think-tankinChina,saysif
IndiasucceedsinhavingJeM
andAzharblacklisted,Islama-
badwouldbeisolatedglobally.
Internationalcolumnist
FareedZakaria’sviewthat
“foreignpolicyisamatterof
costsandbenefits...”applies
toChina’sstandonAzhar.
GautamBambawale,former
ambassadortoIslamabadand
Beijing,saysthatIndiamust
haveatransactionalapproach
ontheAzharepisode.

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

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

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
Theissuetookaseriousturnwhen
agroupofhumanrightsactivistsfiled
acivilsuitagainsttheMalaysian
government,accusingitoffailingto
protectthecountryfromZakirNaik.
THREATENING RELIGIOUS HARMONY
Naik even proposed that Malaysia should not
allow churches to be built
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