AAP’s Intervention Application in Supreme Court on Black Money

This is the intervention application filed by Arvind Kejriwal in the black money foreign bank accounts case being heard by the Supreme Court. The next date of hearing is tomorrow (Oct 29, Wednesday).

Prashant Bhushan will appear on behalf of Arvind Kejriwal in the Supreme Court.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. NO. ________OF 2014

IN

WRIT PETITION (C) NO. 176/2009

IN THE MATTER OF:

RAM JETHMALANI & ORS.                                      ….PETITIONERS

VERSUS

UNION OF INDIA & ORS.                                         …RESPONDENTS

 

IN THE MATTER OF:

ARVIND KEJRIWAL

R/0 L-403, GIRNAR APARTMENTS

KAUSHAMBI

GHAZIABAD, U.P.                                                     ….APPLICANT

 

AN APPLICATION FOR INTERVENTION ON BEHALF OF THE APPLICANT

To,

The Hon’ble Chief Justice of India

And his companion judges of the Hon’ble Supreme Court

 

Most respectfully showeth:

 

1. That the present application, seeking permission to intervene in the present proceeding relating to ‘Black Money’, is being filed by the applicant who is a political activist and the Convenor of the Aam Aadmi Party. The Applicant is in personal knowledge of some of the names, having black money stashed in their foreign bank accounts, and also in possession of the statements made by such three persons before Income Tax Authorities at the time of raids of their respective premises, wherein they had made confession about having black money in their foreign accounts and also disclosed the entire modus operandi as to how illegal gotten money are being transferred from India to their foreign accounts and further, how these money are being brought back through hawala transactions. The aforesaid names/information, which have been given to the Applicant by a whistle-blower, were made public by the Applicant through a press conference almost two years back and they are otherwise also very much in possession of the Income Tax Authorities, but they have still not been supplied to this Hon’ble Court. The Applicant is placing all such names/information, which he has obtained through a whistle-blower, before this Hon’ble Court so that a thorough investigation could be ordered against the persons named in the present application and effective steps could be taken in order to check such illegal transactions of black money.
2. The Government has failed to share the afore-said information with this Hon’ble Court despite there being specific direction of this Hon’ble to disclose all such names in its judgment dated 04.07.2011, reported as (2011) 8 SCC 1.This Hon’ble Court in the aforementioned judgment had given specific directions and the same are extracted below:

(i) The Union of India shall forthwith disclose to the petitioners all those documents and information which they have secured from Germany, in connection with the matters discussed above, subject to the conditions specified in (ii) below;

(ii) That the Union of India is exempted from revealing the names of those individuals who have accounts in banks of Liechtenstein, and revealed to it by Germany, with respect of whom investigations/enquiries are still in progress and no information or evidence of wrongdoing is yet available;

(iii) That the names of those individuals with bank accounts in Liechtenstein, as revealed by Germany, with respect of whom investigations have been concluded, either partially or wholly, and show-cause notices issued and proceedings initiated may be disclosed; and

(iv) That the Special Investigation Team, constituted pursuant to the orders of today by this Court, shall take over the matter of investigation of the individuals whose names have been disclosed by Germany as having accounts in banks in Liechtenstein, and expeditiously conduct the same. The Special Investigation Team shall review the concluded matters also in this regard to assess whether investigations have been thoroughly and properly conducted or not, and on coming to the conclusion that there is a need for further investigation shall proceed further in the matter. After conclusion of such investigations by the Special Investigation Team, the respondents may disclose the names with regard to whom show-cause notices have been issued and proceedings initiated.

It is submitted that this Hon’ble Court, before issuing the aforesaid directions, had specifically rejected all the objections raised by the Union Government against the disclosure of any such names on the ground of them being bound by a specific treaty with Germany. Some of the relevant paras of the aforesaid judgment are extracted below:

65. We have perused the said agreement with Germany. We are convinced that the said agreement, by itself, does not proscribe the disclosure of the relevant documents and details of the same, including the names of various bank account-holders in Liechtenstein. In the first instance, we note that the names of the individuals are with respect to bank accounts in Liechtenstein, which though populated by largely German speaking people, is an independent and sovereign nation-State. The agreement between Germany and India is with regard to various issues that crop up with respect to German and Indian citizens’ liability to pay taxes to Germany and/or India. It does not even remotely touch upon information regarding Indian citizens’ bank accounts in Liechtenstein that Germany secures and shares that have no bearing upon the matters that are covered by the double taxation agreement between the two countries.                  

67……The above clause in the relevant agreement with Germany would indicate that, contrary to the assertions of the Union of India, there is no absolute bar of secrecy. Instead the agreement specifically provides that the information may be disclosed in public court proceedings, which the instant proceedings are. The proceedings in this matter before this Court, relate both to the issue of tax collection with respect to unaccounted for monies deposited into foreign bank accounts, as well as with issues relating to the manner in which such monies were generated, which may include activities that are criminal in nature also. Comity of nations cannot be predicated upon clauses of secrecy that could hinder constitutional proceedings such as these, or criminal proceedings.

 

 82…….We have perused the documents in question, and heard the arguments of the Union of India with respect to the double taxation agreement with Germany as an obstacle to disclosure. We do not find merit in its arguments flowing from the provisions of double taxation agreement with Germany.”

 

3. It is further submitted that, despite there being specific directions by this Hon’ble Court for disclosing the names of those persons whose names figure in the list of the persons found to be having illegally routed money in their foreign bank accounts and the fact that it was categorically held the agreement with Germany did not provide any hurdle or prohibition from disclosing such names, the Government has been avoiding the disclosure of any such illicit account holders name.
4.    Meanwhile, the Applicant was supplied some of the names and the documents relating to black money by a whistle-blower and therefore, the applicant through a press conference, held on 09.11.2012, made the entire information public. Copy of the press statement dated 09.11.2012 is being annexed hereto as Annexure A (from page nos. ____to ______). The names, as supplied by the whistle-blower, are mentioned below:

• Mukesh Dhirubhai Ambani
• Anil Dhirubhai Ambani
• Motech Software Private Ltd (Reliance Group company)
• Reliance Industries Ltd
• Sandeep Tandon
• Anu Tandon
• Kokila Dhirubhai Ambani
• Naresh Kumar Goyal
• Burmans (3 family members)
• Yashovardhan Birla

The Applicant had also obtained, as is mentioned above, the statements of three persons, namely, Parminder Singh Kalra, Vikram Dhirani and Praveen Sawhney, made before the Income Tax Authorities wherein they disclosed the entire modus operandi as to how money was illegally transferred from India to their foreign accounts and how such illegally gotten money were brought back through hawala. Copies of the statements of afore-named persons are annexed hereto as Annexure B (Colly) (From page nos. _____to _______). The summary of the aforementioned statements are as follows:

• Parminder Singh Kalra: He opened an account in HSBC, Zurich on 29.1.2001. He mentioned that he was introduced to the bank by Mr Charles Habnumch, investment consultant based in Zurich. He stated that the deposits in the bank account of around Rs. 8-9 crores were not disclosed to the Income tax authorities in India. After opening the account, he gave cash to some person in India as instructed by Mr. Charles for being deposited in his account in HSBC, Zurich. He stated that he gave the money in several instalments in Delhi to certain persons as instructed by Mr. Charles. Shri Kalra stated that sometimes in 2008 or 2009, he instructed Mr. Charles to close the account. Money of about Rs. 8 to 9 crores was delivered to Shri Kalra at Delhi in cash by several perosns from time to time as per instructions of Mr. Charles. He mentioned that the telephone number of Mr Charles in Zurich is +41-794203575.
• Praveen Sawhney: He opened an account in HSBC, Geneva in 2004 and that his father Shri Bhushan Lal Sawhney transferred an amount of US $ 1.8 million to his account. He accepted that he withdrew amounts from this account from time to time and as of now $ 4000 to $ 5000 might be remaining as balance. Regarding the modus operandi of withdrawal of money, he used to call the bank officials at Geneva for making withdrawal. HSBC, Geneva used to arrange for delivery of cash in India through their agents in hawala channel. All discussions with the bank officials used to take place telephonically. Arrangement for delivery of cash at Delhi used to be made by bank officials through the use of hawala. Every time a different person came to him to deliver cash at Delhi. Every time he needed to make withdrawal, he contacted the bank officials who arranged for delivery of cash at Delhi through hawala and every time delivery persons were different and he knew none of them.
• Vikram Dhirani: He opened an account in HSBC, Dubai in the year 2005 and closed it in 2006. Representatives of the bank came to him in Delhi to open the account. The formalities were completed in Delhi and he did not travel to Dubai for opening or operating the account. The Persons authorised by the bank officials used to contact him and collect the cash from him for depositing in HSBC, Dubai. After the money was deposited, he used to get a confirmation from the bank; however, no document was given. He admitted that around Rs. 12 crores of unaccounted income was deposited in the account over a period of time. Same was not disclosed to the income tax authorities. The account was closed in 2006. The representatives of the bank delivered the cash to him in India in case of withdrawal.

The aforementioned facts clearly establish that the bank officials are providing illegal channels for transfer of cash from their client account holder in Delhi to Zurich and subsequently are also instrumental in delivering cash withdrawn by the account holder from Zurich to Delhi. However, the Government, despite having the aforementioned categorical information of names and the modus operandi, has been sitting idle on this entire issue and has been looking for one excuse after another in order to avoid taking action as per the directions of this Hon’ble Court.

5. On 27.10.2014, the present Union Government, after great deliberation and ostensibly under huge public pressure as well as fear of prospect of facing contempt proceeding for non-compliance of the directions of this Hon’ble Court, has disclosed three names, one of which happens to be Pradip Burman. This name was there in the list disclosed by the applicant two years back and hence, it further validates the aforementioned list. The government should have clarified whether the other names mentioned above also appear in the list of persons found to be having ill gotten money stashed in their foreign accounts. As mentioned above, the Income Tax Department had raided a few of those whose names appear in this list. On 9th Nov 2012, the Applicant had disclosed the statements made by the afore-named three individuals before Income Tax authorities, when their premises were raided. These three individuals admitted their offence. However, their names do not appear in the list of three people, whose names have been disclosed by the Government before this Hon’ble Court.

Moreover, as per the information supplied to the Applicant, the Government is taking action against the persons above-named selectively. Whereas harsh actions (like tax raids and prosecution) are being taken against some, the powerful ones are being let off.

6. The growing black economy propelled by widespread illegality in a variety of economic activities coupled with the misuse of the democratic institutions has fuelled corruption in this country. Given its all-pervasive character, the black economy has become “systematic and systemic” having widespread, social, political macroeconomic and institutional implications. However, so far the successive governments have shown total apathy in taking actions against the persons involved in this illegality. The Applicant is, therefore, feeling compelled to approach this Hon’ble by way of the present intervention application. The Applicant prays that the Government be asked to immediately take the following action –

• disclose the names of all such illicit foreign account holders;
• confirm whether the persons above-named figure in the list which the Government has got of illicit foreign account holders;
• obtain the bank statements of last ten years of all such illicit accounts from these account holders and investigate each of the transactions therein;
• Complete investigations in all such cases in a time bound manner;
• Take strictest action against those who are guilty;
• The statements made by the three individuals named above before the Income Tax Department shows that how easy it is to open a foreign bank account with illicit money, sitting at home in India and this is still going on, therefore,

1. The government should immediately stop this hawala route.
2. Initiate prosecution against the banks which have so far been involved in soliciting illicit money and transferring it abroad through hawala.

PRAYERS

In view of the aforementioned facts, this Hon’ble Court may be pleased to:

• Allow the applicant to intervene in the present writ petition; and
• Pass any other order as this Hon’ble Court may deem fit and proper in the facts and circumstances.

 

 

Applicant

Through

 

(Prashant Bhushan)

Counsel for the Applicant

New Delhi

Dated: 28.10.2014

 

 

 

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. NO. ________OF 2014

IN

WRIT PETITION (C) NO. 176/2009

IN THE MATTER OF:

RAM JETHMALANI & ORS.                                      ….PETITIONERS

VERSUS

UNION OF INDIA & ORS.                                         …RESPONDENTS

AFFIDAVIT

I, Arvind Kejriwal, age 46 yrs, s/o Shri G. R. Kejriwal, R/o L-403, Girnar Apartments, Kaushambi, Ghaziabad, UP, presently at New Delhi, do hereby affirm and state as under:

1. That I am the applicant in the present application and, being well aware with the facts and circumstances of this case, am competent to swear the present affidavit.
2. I have read and understood the accompanying application and I state that the facts mentioned in para 4 are based on the basis of information supplied by a whistle-blower and the facts mentioned in rest of the paras of the application are believed to be true and correct to the best of my knowledge.
3. That the annexures annexed to it are true copies of their respective originals.

 

 

DEPONENT

VERIFICATION:

I the above named deponent do hereby verify that the contents of the aforesaid affidavit are believed to be true and correct to the best of my knowledge and belief, no part of it is false nothing material has been concealed there from.

Verified at New Delhi on this the 28^th day of October, 2014.

 DEPONENT

Note: The Annexures can be found here:

1. https://app.box.com/s/m8kfkzwc6sid2nvzpbk8
2. https://app.box.com/s/q9x7h1nzio01khqpbajd
3. https://app.box.com/s/o70pqqkymlpc582ss1ut
4. http://www.aamaadmiparty.org/why-is-bjp-govt-not-disclosing-all-names-of-foreign-bank-account-holders-0
5. https://app.box.com/s/plt1kknqh6l7g7kup1km

Tareek pe Tareek, Lekin Insaaf Nahi Mila: Story of AAP’s Supreme Court Petition

The Aam Aadmi Party government resigned on 14 February 2014 after 49 days of honest and efficient government. This was an account of the BJP and Congress joining hands to stop the Janlokpal Bill that attempted to give power to the people. The Arvind Kejriwal government took moral responsibility for not being able to deliver on just one of their campaign promises and resigned. And that’s where the propaganda machine kicked in, and targeted Arvind Kejriwal and the Aam Aadmi Party as a “Bhagoda” or runaway. However, they forget that in September 1956, Shri Lal Bahadur Shastri was the original “Bhagoda”. He offered his resignation after a railway accident at Mahbubnagar that led to 112 deaths, which Nehru didn’t accept, at first but accepted after another accident in Ariyalur in Tamil Nadu. Constitutional propriety and moral responsibility are concepts that are alien to the BJP and Congress in recent times but they should do better to remember the leader that they have so wonderfully co-opted.

Anyway, the Delhi AAP government resigned on February 14th 2014. Today, as I write this, it is 28th October 2014. And we don’t have an elected government that serves the people of Delhi for the last 8.5 months. Why? I’m sure you’ve asked that question before, and have analyzed the electoral math that doesn’t add up for the BJP. You’ve probably read about the fallacies in the BJP argument on “secret ballot” before.  Today’s post is to inform you about the Supreme Court petition and its status over the months that it has dragged on for no reason. If you don’t have the time to read through the post, read just this and ask your local BJP MLA or MP these 4 questions. Actually, no, since they’re rather inaccessible ask your local BJP and Modi fan these questions and see if you can get a fitting answer 🙂

1. The Congress and BJP, while making bold statements about morality and minority governments, have not once demanded the dissolution of the Delhi assembly in the Supreme Court. Not once in any of their submissions in the last 8.5 months have they ever asked for the dissolution of the assembly. But they feel free to do so outside court. Ask them why they indulge in this doublespeak.
2. On 12 December 2013, Dr. Harshavardhan had clearly said that he doesn’t have the numbers to form the government. He had 31 legislators then. While losing numbers in the Assembly due to Lok Sabha polls, how has the position changed in the last agonizing year?
3. Why is there a sudden convergence between the Lieutenant Governor’s decisions and deliberations with the rulings of the Congress and BJP respectively, when they were in power, but none with the Aam Aadmi Party?
4. Despite victories in the Lok Sabha elections in 2014, Maharashtra and Haryana, why has the BJP not gone for fresh polls in Delhi? Surely a 56 inch chest on our Prime Minister Modi could surely get them as many seats in the Delhi Assembly.

THE STORY OF A SUPREME COURT PETITION

February 14th 2014: On Valentine’s Day 2014, the Delhi Government due to the new relationship between the BJP and Congress asked for a breakup. The cabinet asked the Center for the dissolution of the assembly and conducting fresh polls for the people to give a clear mandate, one way or the other.

16 February 2014: The Center run by Congress-UPA refuses (surprise!) to accept AAP’s recommendation for dissolution. They keep the assembly in suspended animation and refuse to accept the Delhi cabinet’s recommendation for dissolution. President’s Rule is imposed.

 February 20th 2014: Aam Aadmi Party moved the Supreme Court challenging the decision to impose President’s rule in Delhi on the recommendation of the Lieutenant Governor Najeeb Jung alleging it was done to protect Congress leaders and former Chief Minister Sheila Dikshit from corruption charges. Supreme Court issues notice to the Center for a response. The order to impose the President’s rule was “illegal, arbitrary and in violation” of Article 14 of the Constitution as after the resignation of Arvind Kejriwal government neither BJP nor Congress was in a position to form the government and they had already expressed their unwillingness in this regard.

March-April 2014: The Center opposes the dissolution of government in Delhi. It says that there is a possibility of AAP MLAs to break away. And also, that elections happened only a few months back.

Interestingly, The Supreme Court asks whether BJP and Congress want to form a government together. They say that they had come together during the Janlokpal bill. Why couldn’t they do it again?

17th April 2014: The Congress and BJP send affidavits with exactly the same language opposing the dissolution of the Delhi government.

14th May 2014: Supreme Court direct the LG to take a decision.

July 5th 2014: The Aam Aadmi Party’s petition seeking dissolution of the Delhi Assembly and fresh elections was referred to a five-judge Constitution Bench of the Supreme Court while making it clear that lieutenant-governor Najeeb Jung was free to take a call on government formation and set the matter for hearing on 5th of August, 2014.

A bench of Chief Justice R M Lodha and Justices Madan B Lokur and Kurian Joseph, was requested by senior counsel Fali Nariman, appearing for AAP,  for an early hearing of the issue in view of the important constitutional issues involved in the matter. He, however, alleged that “the BJP has been inducing some MLAs of the AAP for defection” and now “there is no justification for not dissolving the House.”

August 5th 2014: A Constitution bench of the Supreme Court today gave the Centre five weeks to decide on the fate of the Delhi Assembly, saying legislators cannot idle at home at taxpayers’ expense.

“You are not in a position to form a government. You are paying salary to the elected members while they don’t do any work. You are not doing any service to anyone. Why should the people suffer? Therefore, you take a decision,” the bench, headed by Justice H.L. Dattu, told additional solicitor general P.S. Narasimha.

The bench, also comprising Justices J. Chelameswar, A.K. Sikri, R.K. Agrawal and Arun Mishra, said: “This can’t go on. One party does not have the strength, another does not have a desire. The third has no numbers. Why should the people suffer when elected members sit at home? You have to take a view. Either the existing House must be allowed to function or a new House must be elected.”

 September 10th 2014: The Supreme Court told the Centre that horse-trading would continue if steps were not taken soon to form a government in Delhi. “Things better be done at the earliest, otherwise horse-trading will continue,” a five-judge Constitution Bench led by Justice H.L. Dattu told the Centre. The observation was made with reference to a footage released by the Aam Aadmi Party, the petitioner in the case, showing some Bharatiya Janata Party leaders inducing its party MLA with money and perks to support the BJP. The Centre sought time till October-end, but the court refused and fixed the next date of hearing for October 10.

The Supreme Court on Tuesday had turned down the Centre’s request to dispose of the AAP’s petition demanding fresh polls in Delhi, and asked it to take a decision by October 10 on government formation in Delhi “in the interest of everybody.”

October 10th 2014: The Centre informed the Supreme Court on Friday that the President was yet to take a decision on whether to invite a party to form the government or to order fresh polls in Delhi. Solicitor General Ranjit Kumar informed a bench led by Chief Justice H L Dattu that the Lieutenant-Governor’s report is pending with the President for his decision.

AAP’s PIL on Delhi Assembly formation adjourned to Oct. 28 on a request made by Solicitor General Ranjit Kumar. Kumar sought an adjournment also on the ground that the law officer, who had been handling the matter, was indisposed because of his father’s surgery.

It had added: “Our thinking is that it is the interest of everybody that a government is formed and if it cannot be formed in the current situation, election should be held. That is the only interest of this court in this matter.”

The bench had, however, declined to take on record for the time being an additional affidavit and other materials, including a CD of a sting operation, purportedly showing Delhi BJP vice-president Sher Singh Dagar and his aide Raghubir Dahiya offering Rs 4 crore to Dinesh Mohaniya, the AAP MLA from Sangam Vihar, for his resignation.

October 28th 2014: The Supreme Court today pulled up the Centre and the Delhi Lieutenant Governor over the delay in government formation in Delhi, saying: “In a democracy, President’s Rule cannot go on forever.” It observed the following in open court today:

•  In a democratic setup people have the right to be ruled by a democratically elected government.
• “We have given you enough time but nothing seems to come out”, Supreme Court on Centre’s delaying tactics in govt. formation in Delhi.

The Road Ahead

So that’s where we’re at right now. The Supreme Court is powerless to give executive orders to a Lieutenant Governor who’s either suspiciously batting for either BJP or Congress, or is blatantly incompetent to discharge his duties and give Delhi an elected government in 8.5 months. The President’s Rule with an assembly in suspended animation suffers from malice-in-law since whilst exercising the discretionary power, the constitutional authorities have failed to take matters into account which they ought to have taken into account and used this power for an unauthorised purpose.

If this were cricket, the BJP and Lieutenant Governor would have been timed out by now, but alas, our umpire, the Supreme Court, despite having all the willpower, is powerless to give these miscreant players their rightful place back in the pavilion. We wait for justice to be delivered, as the city of Delhi is given more time under President’s Misrule. Delhi’s citizens deserve their voice and choice to be heard, and we will continue to be its microphones in the upper echelons of power.

Tweaks or Reforms?: Modi’s Experiment with Labour Policy

The BJP-led Modi Government has recently announced several labor law improvements. A computerized inspection scheme, single window compliance system, PF portability and promoting industrial training institutes amongst others are the low hanging fruits and are good process-related improvements, and I welcomes these initiatives. The Prime Minister has picked on excellent themes to use his political capital, like sanitation, labour reform and sterner foreign policy. However, as has been portrayed in the media, they are not the sweeping and game-changing labour reform that was promised. They are closer to technological tweaks or pre-existing changes that haven’t worked. Here’s how.

Interestingly, states in India, including Gujarat, Maharashtra, Punjab, Haryana and Rajasthan, have had such schemes for years. It’s not radical, by any sense of the word. Self-certification, for example, in Maharashtra had only 5 takers in total, in the year of 2010. Across the whole state. This process may not be feasible in rural or semi-rural areas due to infrastructural constraints. Most companies haven’t taken to these initiatives by themselves. In fact, there is an additional legal concern that Professor K.R. Shyam Sundar, a human resources management professor at XLRI, Jamshedpur. In his opinion,

This has brought up regarding centralized labour inspections and controlled visit timings, which might violate the International Labour Organization’s labour inspection convention 81 (1947). The government must ensure that our commitments to international treaties and conventions are not circumvented or forgotten. Thus, even these limited initiatives in improving processes need a thorough study before implementation.

Simplification of process has long been the concern of industry and these initiatives, if implemented correctly, will certainly increase the ease of doing business. However economic growth is meaningless if it does not translate into better opportunities for employment, learning, and improved living for the vast majority of people. India has an increasing workforce with a huge demographic dividend but undergoes a constant reduction in organized labour.

In the recent few months, the BJP-led Rajasthan government has undertaken labour reforms, and if that’s the model that the BJP-led Modi government believes in implementing, it may be quite dangerous for workers and employers alike. This hypothesis that gains credence due to the recent appointment of Rajiv Mehrishi as Secretary, Economic Affairs, from his recent posting as Rajasthan’s Chief Secretary. We believe that similar new reforms will only increase the degree of informalization of labour benefiting certain industries and not the labourers at large.

In Rajasthan, the key proposals made as part of their labour reforms package included amendments to the Industrial Disputes Act, the Factories Act and the Contract Labour Act. It empowered employers to ease out up to 300 employees without the government’s permission; making having 30% of workers as members a condition for setting up a trade union; raising the threshold limit of employment for factories operating without power; making the Contract Labour Act applicable only to companies employing more than 50 workers.

While these are seemingly pro-business legislative amendments, they don’t address the de facto realities of today’s labour and also takes away powers from trade unions and worker’s rights organizations. These laws confer different rights to the labour like right to organize and strike, right to job security and rights of the contract workers. However, they have been replaced by de facto flexible labour rules and employers’ rights, which are in vogue in enterprises of all kinds.

Further, as Pranab Bardhan, an economist at Berkeley writes, it is not clear that the rigid law on retrenchment is always the binding constraint on manufacturing expansion. He illustrates his statement by using the highly labor-intensive garments industry, the bunching of firms is around the eight-employee size, not the below-100-employee size, as one would have expected. The binding constraints on the expansion of that eight-employee firm may have to do with inadequate credit and marketing opportunity, erratic power supply, wretched roads, bureaucratic regulations etc. The government is thus, treating the symptom and not the disease.

Additionally, as Supriya Sharma reports in Scroll, there is something to be said about the process of Rajasthan’s labour reforms, something that is becoming characteristic of the Modi government as well. The reform proposals were rushed through without any public consultation or policy deliberations. Chief minister Vasundhara Raje’s cabinet approved the amendments in the first week of June. By the end of July, the assembly passed them through a voice vote, with reportedly less than half the members of the assembly in attendance. The government would do well to involve every stakeholder in the system to ensure that adoption of such reform is successful and long-standing, as opposed to, forcing it on people.

The Aam Aadmi Party believes that it is important to create a flexible labour regime to facilitate growth and development whilst protecting labour rights and garnering social security for the vulnerable and marginalized poor labour. There is a need to facilitate and encourage more workers to be brought under the organized workforce, so that some basic protections are extended to a large segment of laborers. We believe that incentives should be provided to industrialists to put employees on formal employment rolls and punish non-compliance. When thinking of labour reform, flexibility shouldn’t be uni-dimensional or purely numerical, but should consider wage flexibility amongst others. Workers’ rights to organize and form trade unions should be given top priority, however they should not hold industry to ransom. We must ensure equal employee benefits for contract labor, whilst ensuring enforceable contracts and termination procedures. Recommendations from the Second National Commission on Labour should be considered for implementation, and a simplification of India’s complicated labour law structure should be immediately undertaken. The Aam Aadmi Party believes that the approach to solving India’s labour, job and growth problem has to be comprehensive and transformative, without being incremental in nature. Only then can it be genuinely called labour reform.

Why is Ram Jethmalani Fuming?: Or why Black Money will remain Black

Black Money is in vogue again. On Diwali, Supreme Court Senior Advocate Ram Jethmalani just wrote a hard-hitting letter to India’s Finance Minister Shri Arun Jaitley regarding the issue of black money and flagged our Finance Minister’s incompetence, negligence and what could possibly be sins of omission and/or commission. This post attempts to bring context to the recent news on black money as well as give perspective to the economics and politics of black money in India.

Why is Black Money such a big deal, politically?

Prime Minister Narendra Modi’s top priority was to bring back the black money as he reinforced in every speech and rally during the election campaign leading up to the general elections in 2014. Here’s an example of a scathing attack he made on then UPA Chairperson Ms. Sonia Gandhi with respect to black money. The current Home Minister Rajnath Singh said that he would bring back the black money from foreign countries within 100 days.

BJP leader Subramaniam Swamy even proclaimed:

To bring relief to common man, immediate measures have to be taken. And, I feel we should first abolish income tax during this period of inflation. India’s lost 1.76 lakh crore in 2G scam, 1.86 lakh crore in coalgate scam. There is about 120 lakh crore of black money in foreign banks. With this money we could survive for the next 60 years without collecting income tax.

The talk was loud. It was one of the main planks on which the current BJP-led government came to power. So, the seriousness with which the BJP government deals with this issue is rather important to note. If they’re not serious about it, there’s probably nothing from the campaign that they actually meant. And rather unfortunately, the current BJP government has not walked the talk. It has yet again, overpromised and underdelivered.

May 2014: The Election that Changed India, but not the status of Black Money

After the election of the new government, Ram Jethmalani, an open Narendra Modi supporter said that a senior minister was stopping investigations and creating big roadblocks. It wouldn’t stretch of one’s imagination to think that this Minister is Shri Arun Jaitley. Ram Jethmalani has criticized Arun Jaitley even in the past. When the SIT on Black Money was formed, he had this to say about him and now, Minister for External Affairs, Shrimati Sushma Swaraj.

On the legislative floor, BJP MPs like Nishikant Dube even publicly admitted that there was no way in which black money could be brought back to India. More recently, the government told the Supreme Court that it can’t release the names of those with black money.

During the UPA government, many supported the adjournment motion against black money, brought in parliament by Shri LK Advani in 2011. Shri Pranab Mukherjee, the then Finance Minister argued on the floor of the house that any disclosure of names would violate the understanding reached with sovereign governments. Many were then tripped into believing that it’s only the Congress which wants to conceal the black money and the identity of the holders of such money.However, the BJP which promised complete disclosure of information on the issue of black money is making a plea in the Hon’ble Supreme Court identical to the one used by the Congress in 2011 to safeguard the interests of black money holders. It is now doing yet another U-turn by indicating that it’ll disclose a limited number of names, cherry picked from the list of foreign bank account holders possessed by the government through formal/informal sources. The Finance Minister needs to make up his mind, once and for all.
What is even more astonishing is the fact that the Hon’ble Finance Minister, Shri Jaitley is misleading the country on this issue. The Indian government has been in receipt of two substantial sets of information of foreign bank holders of illicit money. One is pertaining to banks in Liechtenstein and other of HSBC bank of Switzerland.More on that later in this post.

Is Black Money a big deal, economically?

There are various estimates out there for the actual amount of black money that’s out there. Subramaniam Swamy said Rs. 120 Lakh Crore which is about $2 trillion. IMF Economist Dev Kar at Global Financial Integrity Institute pegs the number at $462 Billion from 1948-2008 with 86% of this amount is after 1991. However, this counts money only through banking channels. So this is a really small amount as compared to over-invoicing, under-invoicing and through hawala transactions. Governmental kickbacks are not taken up in this number, so while the number is big, the real number is probably much bigger. Professor Arun Kumar, author of “The Black Economy in India” and an economics professor at Jawaharlal Nehru University in New Delhi, has done an extensive calculation on the total amount of black money and pegged it at $2 trillion. Another Bloomberg report also pegs the hidden assets and black money number at $2 trillion. So, for argument’s sake, let’s go with this number.

It’s difficult to calculate but it’s clear that the black money in its various forms is a rather important issue for India. For comparison, India’s GDP is just about touching $2 trillion. So it is a big deal. You could technically fund all the planned expenditure (defence, health, education and everything) in India as proposed by Union Budget 2014, 7 times over without having to touch or raise any tax or non-tax revenue. It is enough to meet the MDG in 10 years and still have around $1.4 trillion left. {The World Bank estimates the costs of reaching the Millenium Development Goals at $60 billion per year.}
So, when the amount of money that India’s missing could eradicate extreme poverty and hunger, achieve universal primary education, promote gender equality and empower women, reduce child mortality, improve maternal health and combay HIV/AIDS, malaria and other diseases, ensure environmental sustainability and develop a global partnership for development, there is cause for much worry.

It could fund all this expenditure but as an MC Joshi Report on Black Money in 2011 noted, it’s probably going elsewhere:

The two major national parties (an apparent reference to Indian National Congress, BJP) claim to have incomes of merely INR5 billion (US$83 million) and INR 2 billion (US$33 million). But this isn’t “even a fraction” of their expenses. These parties spend between INR100 billion (US$1.7 billion) and INR150 billion (US$2.5 billion) annually on election expenses alone. And in this 2014, election, they have spent astronomical levels.

The Curious Case of Liechtenstein and Switzerland

Black Money is popularly associated with these mysterious foreign accounts with secret codes and Da Vinci code type protectors. The more accurate truth is that most of the black money is in India. However, since the popular notion is these foreign bank accounts, let’s study their legal grounding.

With regard to the information pertaining to bank accounts in Liechtenstein shared by the German government, the Hon’ble Supreme Court of India in its judgement on 4th July 2011 has made it amply clear that the argument that India’s 1995 agreement with Germany prohibits any disclosure of relevant documents and details doesn’t hold.

Shri Jaitely, Hon’ble Finance Minister, in his media address made a claim that the Double Tax Avoidance Agreement between India and Germany, signed in 1995 restricts the sharing of information only to cases where chargesheet has been filed. The Hon’ble SC had in its 2011 judgement not found merit in this claim and made the following observations:

Here is an extract of Para 56 of the judgement:

We have perused the said agreement with Germany. We are convinced that the said agreement, by itself, does not proscribe the disclosure of the relevant documents and details of the same, including the names of various bank account holders in Liechtenstein.

The Supreme Court then goes on to analyse the clause of the agreement which the government is pleading to be a hindrance for disclosure of information. Extract of para 58 of the judgement:

The above clause in the relevant agreement with Germany would indicate that, contrary to the assertions of Union of India, there is no absolute bar of secrecy. Comity of nations cannot be predicated upon clauses of secrecy that could hinder constitutional proceedings such as these, or criminal proceedings.

Extract of para 71 of the judgement:

The actions of governments can only be lawful when exercised within the four corners of constitutional permissibility. No treaty can be entered into, or interpreted, such that constitutional fealty is derogated from. The redundancy, that the Union of India presses, with respect to the last sentence of Article 26(1) of 47 the double taxation agreement with Germany, necessarily transgresses upon the boundaries erected by our Constitution. It cannot be permitted.

Extract of para 72 of the judgement:

We have perused the documents in question, and heard the arguments of Union of India with respect to the double taxation agreement with Germany as an obstacle to disclosure. We do not find merit in its arguments flowing from the provisions of double taxation agreement with Germany.

Another claim made by Shri Jaitely was that Germany has objected to revelation of names pertaining to Liechtenstein. This argument also doesn’t hold true as this information pertains to Liechtenstein, which is an independent sovereign state. The 1995 agreement between India and Germany has neither any jurisdiction nor any authority over information pertaining to banks of Liechtenstein.

Here is an extract of Para 56 of the judgement:

In the first instance, we note that the names of the individuals are with respect to bank accounts in the Liechtenstein which though populated by largely German speaking people, is an independent and sovereign nation state. The agreement between Germany and India is with regard to various issues that crop up with respect to German and Indian citizens’ liability to pay taxes to Germany and/or India. It does not even remotely touch upon information regarding Indian citizens’ bank accounts in Liechtenstein that Germany secures and shares that have no bearing upon the matters that are covered by the double taxation agreement between the two countries.

It is also pertinent to note that the Government has never ever revealed any evidence, either in court or otherwise, to effect that the German Government objects to sharing of information. This was also remarked by the SC in Para 59:

the Union of India did not provide any evidence that Germany specifically requested it to not reveal the details with respect to accounts in the Liechtenstein even in the context of proceedings before this court.

And finally the Supreme Court in para 56 goes on to say:

It is disingenuous for the Union of India, under these circumstances, to repeatedly claim that it is unable to reveal the documents and names as sought by the Petitioners on the ground that the same is proscribed by the said agreement. It does not matter that Germany itself may have asked India to treat the information shared as being subject to the confidentiality and secrecy clause of the double taxation agreement. It is for the Union of India, and the courts, in appropriate proceedings, to determine whether such information concerns matters that are covered by the double taxation agreement or not.

What does the United Nations have to say on this issue?

With regards to the sharing of information pertaining to HSBC Switzerland, the United Nations Convention Against Corruption (UNCAC)mandates the signatories to the convention to take several steps to help eradicate the problem of money laundering from the global economy.

Both India and Switzerland are signatories to the UNCAC which emphatically empowers the two countries on following counts:

1. UN Convention Against Corruption gives full sanction to make simple changes in the laws of our country to tackle black money menace permanently
2. UN Convention Against Corruption overrides ‘bank secrecy laws’
3. UN Convention Against Corruption empowers to freeze, seize and confiscate illicit money
4. UN Convention Against Corruption on Mutual Assistance by different tax jurisdictions

Therefore the remarks made by Shri Jaitely, in his media address- of the India government achieving a breakthrough with the Swiss government, Swiss Federal tax authorities now agreeing to confirm genuineness of documents, and initiation of discussion on a bi-lateral agreement between India and Switzerland on automatic exchange of information- were long ago well established by virtue of UNCAC.

It is also pertinent to note that the provisions of Double Tax Avoidance Agreement, which are being repeatedly pleaded as the sole reason for Central Government’s inability to share information don’t quite apply in the case of HSBC bank account details possessed by Indian authorities, as the same wasn’t made available to Indian authorities by the sovereign government of Switzerland. It was made available through other informal channels and therefore doesn’t fall under the ‘Exchange of Information’ clause of the Double Tax Avoidance Agreement between India and Switzerland.

Another prime instrument that has been used over the years to frustrate efforts of the Indian law enforcement agencies to bring individuals indulging in money laundering to book, has been the notion of ‘bank secrecy laws’ that were instituted in Switzerland and other tax havens, to protect racketeers from being exposed

Thankfully, the UNCAC recognizes the impediments that such laws may place in the way of law enforcement, and has, in several places, mandated that global public interest must override any such domestic bank secrecy laws.

Article 40 squarely deals with the impediment that bank secrecy laws may pose, and states:

Each State Party shall ensure that, in the case of domestic criminal investigations of offences established in accordance with this Convention, there are appropriate mechanisms available within its domestic legal system to overcome obstacles that may arise out of the application of bank secrecy laws.

Most importantly, Paragraph 7 and 8 of the Article 31 of UNCAC states:

7. For the purpose of this article and article 55 of this Convention, each State Party shall empower its courts or other competent authorities to order that bank, financial or commercial records be made available or seized. A State Party shall not decline to act under the provisions of this paragraph on the ground of bank secrecy.

8. States Parties may consider the possibility of requiring that an offender demonstrate the lawful origin of such alleged proceeds of crime or other property liable to confiscation, to the extent that such a requirement is consistent with the fundamental principles of their domestic law and with the nature of judicial and other proceedings.

So, what could have been done by the government to bring back or curb black money?

By making a few simple changes to the laws of our country, which possess full sanction by the UN Convention Against Corruption, one can severely curtail the flow of black money in this economy. Two sessions of parliament have passed and if this government were serious about tacking this problem in an effective manner, then some of the changes required to be made in our current legal framework as mentioned below, would have been made. Here’s a list of things that could have been done to improve status quo:

1. In Union Budget 2014 or in any Ministry of Finance announcement, no action was taken by the government on past requests by the CBDT (Central Board of Direct Taxes) to fill more than 30,000 vacant spots in our different financial intelligence departments, which could hunt down black money and tax irregularities.
2. In the Union Budget 2014, It was particularly concerning to hear nothing about the revision or repeal of double tax avoidance treaties, especially with Mauritius and the usage of participatory notes in India’s financial landscape, both of which cause huge amounts of revenue losses.
3. The Government of India received many interesting and innovative solutions when a White Paper on Black Money was submitted for perusal in Parliament in 2012. It said that lower taxes and simpler compliance process reduces black money. They said that this could be a method to ensure voluntary compliance amongst those with high net assets. A lot of black money can’t be touched legally and needs to be brought in through institutional reform.
4. Removal of high transaction costs in vulnerable sectors like gold trading and real estate, where there is high incentive and cost saving to not pay taxes and thus, pay money in black. Real estate transaction process and tax structure needs to be simplified to get a bigger tax base.
5. Credible deterrence for black money generators and storekeepers can be achieved by information technology (integration of databases), integration of systems and compliance departments of the Indian government, direct tax administration, adding data mining capabilities, and improving prosecution processes.
6. A new law, or an amendment to an existing law (such as the Prevention of Money Laundering Act), requiring all Indian citizens to disclose all their assets and bank accounts in India and abroad needs to be introduced. Such a law would require citizens to annually disclose a full list of their assets and liabilities, including their stakes in companies or trusts registered abroad.
7. Any income or assets that are not disclosed in the required form would be deemed to be “proceeds of crime”, and included as ‘predicate offences’ defined under the UNCAC. This would enable the law enforcement agencies to recover the said assets under provisions of the Prevention of Money Laundering Act, or the provisions of the UNCAC allowing for seizure and confiscation of assets that are proceeds of crime.
8. Instruments such as participatory notes and anonymous investments by funds or shell companies could have been disallowed with immediate effect. Every time a company invests in stocks or other financial instruments in the Indian Stock Exchange or elsewhere, the relevant authority must be able to determine the exact ownership of the investment, ending in the final individuals who hold the money that is being invested. In the case of investments made in the name of a company or a trust, the major stakeholders of the company, or the trustees of the trust, must be determined and duly recorded, before the investment is allowed.

The black money issue in India has multiple facets which need to be solved in a comprehensive manner. The holders of these large amounts of money have vested interests that won’t allow them to let this money go, and power to ensure that it doesn’t. My worry is not the speed of the government’s progress, which they did, admittedly over-promise. My worry is the direction that the present day government is taking is in completely in the wrong direction. For their sake, I hope they course correct soon and deliver on the promise that Shri Narendra Modi made to the country. The 2014 elections were the biggest in terms of the sheer money spent by India’s political parties. Inaction on this issue will only indicate that it’s payback time.

Note: This post combines research done on Black Money by researchers of the Aam Aadmi Party. This does not reflect the party’s official stand. One part of the content (on the legal background and United Nation’s role) comes entirely from this post on Newsroompost. It was written by Raghav Chadha,with valuable inputs from AAP leader and Supreme Court Senior Advocate Prashant Bhushan.

What You Need to Know About the Uniform Civil Code

The Uniform Civil Code has been raised by the BJP in its manifesto and its recent public utterances to make a common civil law for everyone. The manner in which it has been raised has given it the usual “communal vs. secular” overtones and not addressed the crux of the issue. This complex legal and societal issue has been tied with ridiculous and nonsensical notions like the “Love Jihad” which has polarized thought-leaders in different communities, parties and civil society in the rigid pigeonhole binaries of “for” or “against”. There has been little debate about what a uniform civil code means, why it is needed, what are the arguments for or against it, and what process or procedure is needed to revamp our legal code if a common civil code needs to be implemented. As usual, most public statements from political leaders, Facebook posts from your friend lists and belligerent Virat Kohli-esque Twitter feeds haven’t quite captured the nuances involved.

Recently, I had the pleasure of attending my first and one of the very few public and open debates about the uniform civil code. The panel was held at the India International Center and featured the following panelists:

1. BG Verghese, Leading Journalist and Information Advisor to PM Indira Gandhi
2. Justice Leila Seth, first Woman Judge in the Delhi High Court and first Woman Chief Justice of a State High Court
3. Advocate Rajeev Dhawan, Advocate at the Supreme Court of India
4. Professor Tahir Mehmood, Law Commission Member and expert specializing in Islamic Law, Hindu Law and Religion
5. Peter DeSouza, Political scientist at CSDS
6. Seshadri Chari, BJP Policy Cell

For the readership of this blog, I reproduce the contents of this excellent debate below at the end of my short note. Along with this, since I’m not a law studen, let alone being constitutional scholar, I have attempted to educate myself on the issue by reading a series of articles on the issue as well as opinion pieces by various individuals. I list some of them here for your convenience. Please feel free to read these links and comment with papers/articles that you think should be read.

1. Uniform Civil Code: State of the Debate in 2014
2. Uniform Civil Code Debate: Do Not Confuse Religion with Personal Law
3. Mani Shankar Iyer on the Special Marriage Act
4. Being Cynical on the UCC
5. Women and family law reform in India. Uniform Civil Code and gender equality.
6. Women between Community and State: Some Implications of the Uniform Civil Code Debates in India
7. Uniform Civil Code in India–still a distant dream
8. Hindu Men, Monogamy and the Uniform Civil Code
9. Gender Implications of a Uniform Civil Code
10. Goa’s Civil Code has backing of the BJP, but it’s not truly uniform
11. Justice Katju on the UCC in 2 parts: 1, 2
12. Towards a Uniform Civil Code
13. What is the Uniform Civil Code proposed by the BJP Manifesto
14. Why I Support the Uniform Civil Code?

The TLDR version of this post, which I write upfront, is that the idea and implementation of the Uniform Civil Code is a complex issue encompassing civil liberties, free speech, gender justice, including divorce, maintenance, marriage, equality amongst religions, child rights and property rights amongst many other issues. I’ve read the first 100 papers on Google Scholar and most news articles that I can find, and I’m pretty sure there are many aspects I’ve missed out on. The Law Commission, Supreme Court Advocates and the best legal minds in the country with all their collective brainpower have different views and opinions on how to go about tackling this issue. It’s a hard problem to understand, let alone solve. And there are way too many stakeholders and issues involved for your opinion on it to be determined by some asinine bigoted polarizing figure.

Anyway, on to the transcription of the debate on the Uniform Civil Code. Any errors in transcription are mine and regretted. Let me know if there’s something factually incorrect and I’ll correct it with a thank you note! 🙂

Debate on the Uniform Civil Code: Notes from the Indian International Center

BG Verghese

In 1941, Roosevelt had said that there are four freedoms that he wanted. Freedom from Speech, Worship, Want and Fear. Bob Hope added to that list adding the “Freedom from Humbug” in it. I endorse his opinion wholeheartedly. And unfortunately, on the topic of discussion today, that’s exactly what all governments and political parties want.

Article 44 of the Directive Principles states that the state shall endeavour to give its citizens a uniform civil code.

At the same time we are to be governed by our own personal code. Projected under Article 25, each citizen has the freedom of religion which excludes more secular activities like marriage and divorce. Uniform Civil Code looks at things like marriage, divorce, succession, joint family and property, some of which are already part of the central list.

One argument made by many people is that the Hindu Code has been reformed, why can’t the other personal codes be reformed? There is an inherent fallacy in this argument in that this is just not true. We have to be disabused about the fact that Hindu Codes have been reformed. When the former PM PV Narasimha Rao was asked this question and his opinion on it, he quite clearly mentioned that Andhra Pradesh, his home state, itself had 6 Hindu Codes in addition to the numerous personal codes. Since states can legislate on many of these individual issues, the idea of One Nation, One God is one that is rather difficult to attain with immediacy. Not to mention there is tribal law relating to custody in the 5th and 6th Schedule. Don’t remain under the notion that there’s one act.

Coming to marriage, there are informal arrangements of many kinds. People including the prime minister should remember that Rajasthan and his native state of Gujarat have friendship marriages, a precursor to live-in relationships, where the live-in partners have no claim on their partners. The idea of Natha-Pratha is also worth thinking about. Many leading politicians and bureaucrats have entered into such informal relationships. Abrogation of personal law is the main context in which things are talked about in relation to marriage.

As a layperson, there are two incontrovertible things that exists as of now, in relation to marriage:

1. Special Marriage Act of 1954: Uniform Code as far as Marriage is concerned still exists. It is optional but it hasn’t been abrogated.
2. Portuguese Common Civil Code: Presently existing in Goa, it hasn’t been challenged despite many spirited attempts by the Shariat.
   So, maybe it’s not a question of either/or. Maybe a personal and common code can co-exist?

Another important issue to talk about is property law, where women are discriminated against and treated as 3rd class citizens. Only 2% of land in India is in the name of women and this is abominable.

The Hindu Undivided Family has been used as a tax haven and people don’t want to give it up. Any serious attempt at making a uniform civil code must address this financial issue as well. The Uniform Civil Code if anything has to be taken up by the gender justice and women’s empowerment community.

I remember once when as information advisor to PM Indira Gandhi, I had gone to visit Calicut in 1976. The Common Civil Code had come up in controversy and on reaching Calicut as soon as Mrs. Gandhi got down, the first thing she said, as soon as the usual “Indira Gandhi ki Jai” drowned out was “No Common Civil Code” which was met with rapturous applause by the crowd. This was a backward looking statement and representative of the politics that has been played on the uniform civil code since then.

For purposes of succession, Hindu code of succession has been the object of vote bank politics and the Congress, BJP and the Left have played this dirty game.

My personal belief that there should be an optional uniform civil code and that should be enough. Our personal lives shouldn’t be governed by fundamentalists who want to keep us as medieval barbarians.

The best way to frame a uniform civil code would be pick out the best of all the laws, take the personal code of all the religions and combine them to make the best possible uniform civil code.

The Uniform Civil Code’s idea may be used as a pretext to prevent any sensible piece of legislation but all parties who believe in fundamental social reform and liberal modernisation must think of a way to address these serious issues. They must give though to the fact that women hold up half the sky but we don’t empower them to actually to do so. We must think about lessons from Goa. We must think about the best way to crack this issue without making it a politically and communally charged issue.

Justice Leila Seth

Justice Leila Seth began by saying that the Hindu act of monogamy has to be compulsory and applicable to everyone.

In 1954 the Special Marriage Act was passed where you could renounce your religion and keep the marriage within society. Society and law is completely different. There are many reasons why we should talk about it:

Let’s look at a case of clear discrimination. Take a study of 2 servants who were going through divorce proceedings: Anissa and Parvatii. Parvati was going to get maintenance, Anissa wasn’t going to get maintenance. What sort of country is this? There should be no discrimination.

When I spoke to the Law Commission to do a paper on this, they said that this is not the right time. People are not ready. I ask, when will people be ready? There’s never a good time to start but when doing the right thing, we have to start as soon as possible, and not look for an opportune political or societal moment.

I’d like to bring up another example. The Indian Divorce Act. It has a discriminatory clause, wherein a man could get divorce on adultery whilst women had to prove adultery and cruelty. Years and years, it went on and Christians were also subject to this law. The law was finally brought up and was changed.

In 1955/56, it was seen that daughters had rights in the parental property but not in the ancestral property. After decades of legal battles, from 2005 women and men can be co-partners in property.

I believe that the Hindu Undivided Family should be done away with, and that we must ask ourselves more fundamental questions such as “Why should sons get more than our daughters?”. If we ask ourselves such easy and truthful questions, we will find our views on a uniform civil code that empowers women getting stronger everyday.

Women should get up and demand it now. The idea of a uniform civil code being that of the Congress, BJP or any other political party needs to be done away with.

I remember making these strong points in front of a packed audience where every politicians remained silent and no none except Fali Nariman, Ram Jethmalani, Justice Ahmadi clapping for it. And therein perhaps lies our greatest tragedy.

Advocate Rajeev Dhavan

After expressing disturbance and anger at the format of the debate, Advocate Rajeev Dhavan presented his views.

Once, I don’t exactly remember which President, President Roosevelt or Truman, one of them, was asked: Did you go to Church? He replied, Yes. In reply came another question, so what did the priest say about sin? The president said, He said he was against it.

And that is exactly my stand on the uniform civil code. I’m against it.

I will frame my comments as follows: What is the Uniform Civil Code? Who will frame it? Uses and abuses? Is this about men and women? Can I believe in opposing uniform civil code?

The constitution doesn’t mention personal law. You can study the Napoleonic code, all civil codes of Eurpe and the Anglo-Indian code. What the British left out when they framed legal codes for us were customs, personal law and law of torts.
A neat controversy that has been woven around the “optional” personal law on who should be subject to it and whether people have the “option” to get away from it. Every law and custom has to be tested by fundamental rights but not personal law because it involves the religious freedoms that the state guarantees including its practice.

Justice Gajendra Kakkar had said that minorities and religious freedom have their right to their personal code. The Madras High Court said that it wouldn’t touch the personal laws, while the Allahabad High Court said that working out the equities and inequities is not its mandate. They said that personal law is not supposed to be tested by any of these rules and regulations. I respect Kuldeep Singh but have no respect for Chief Justice Khare.

They said that one should go to the Parliament to seek resolution on personal laws. It’s not about men and women. It’s about one of the most complicated things in modern India because personal law belongs to a holistic faith.

The question is complication. We still don’t know who we should go for our Uniform Civil Code? Will it be a larger bench of the Supreme Court? With women on it? Maybe somebody later will reverse all the decisions that we don’t like. The bottom-line is that we don’t want to look after this baby.

A lot of effort was needed to get the Hindu Code Bill through. The effort started way back in the 1930s and continued till 1956. It was a long process with the real reform in joint family property coming only in 2005 through Parliament.

On the issue of Muslim Jurisprudence, using the 9th Century Shafi as a standard, the Dissolution of Marriage Act was brought in 1939 which was rather difficult. The issue of Optional Marriage came up in 1937.

Condorcet’s jury theorem is a political science theorem about the relative probability of a given group of individuals arriving at a correct decision. As we think of the problem of uniform civil code, through the Condorcet lens, we must think about who will lead the charge on this issue? The community or the liberals of India? What is the balance? Men or women? The problem with any solution that can emerge from this is that there will be no balance and thus we must not persuade a community to give up its personal law.

On the last point of the uses and abuses of the uniform civil code. The controversy about majority faith and its political followers and the possible question of this being about minority bashing cannot be taken away from the problem that faces the uniform civil code. The only reason that BJP supports it is that their idea of the uniform civil code is against just one community. There is no sense of gender justice in their ideals.

So, how do you do gender justice? Is it achieved only by banning Muslim polygamy? Look at the recent judgments by the Supreme Court on issues of one wife and one mistress. These judgments are enough to tackle problems that don’t need a separate common civil code. It is something that we have to take up on a strident platform with the language of persuasion.

India has more Muslims than Pakistan and is second only to Indonesia. This incremental exercise of reforming our laws has to be separated from politics and not subject to any kind of majoritarianism.The discussion on practice and propagate in Article 25 should be brought back to the fore. Again, to sum up, I’m saying that what women go through is difficult and it’s getting worse. But starting the idea of a uniform civil code is the wrong way to go about it.

Professor Peter DeSouza

My comments on this issue will not be going by the letter of the law, but will rather take us to the geniality of the debate. During the codification process, earlier matters were done by British judges and men of the Hindu community in India. So, we must recognise that we have to take a stand on the genealogy of this body of law.

Over time there has been a change in discourse, with the debates on personal law going through different phases.

First there was the debates in constituent assembly, which were there to build and stabilise the nation. A certain position at that point of time was taken to ensure its stability.

The Shah Bano case brought in a new set of factors and a bill was passed which brought a new body of cases. It is important to recognise that a lot of things we’d like to recognise in gender justice are in the process of contestation. Justice DP Mishra is already looking at maintenance and its provision and attempting to deal it through stealth. Look at the Dangi Latifi case. The state of Kerela has produced a body of law through contestation. There’s a special issue of the Frontline documenting the processes of stealth and the conceptual pincer movement. This body of laws has nothing to do with personal law. I feel that Gender justice is promoted better by jurisprudence than uniformity.

Goa case is very important because it presents to us, some form of a uniform civil code. The civil code of Portugal went through changes from 1867 to 1939 to 1966 in 2 major reform phases. The same laws were extended to India. India received the benefit of the first wave of reforms, not the second because we were a free nation by then.

The importance features of this code are as follows:

1. Registration: All communities have the responsibility of registration as the burden of the state. Thus, if the registration is there, you can’t register again.
2. Man cannot disinherit his wife by leaving a will for someone else. 50% can be given to someone else. 50% for family and children have right to property.
3. There are a series of protections enjoyed by women. There are special laws on succession and inventory of property.

Seshadri Chari

In principle, I agree with everything that Mr. Verghese said. He mentions the list of issues raised and spoke about marriage, property rights and inheritance issues and agreed with the panelists till now. He is curious about the identity loss that has happened due to uniform civil code in Goa? What has happened?

He feels that on the issue of Hindu Undivided Family, income tax lawyers should operate out of it and the joint family system needs to be looked into properly without. He urges people not to make it a Hindu Muslim issue.

Dr. Tahir Mehmood

Rather endearingly, he says “Jaan ki aawar miley to arz karoon?”

Personal law is not protected under religious freedom. It is mentioned in the constitution and it is in the hands of the union and state legislatures. Only 2 options have been provided to the Muslims: either allow for reform of muslim personal law or abolish muslim law which leaves you to stagnate by backward interpretation of your laws.

When the 1954 Special Marriage act was there, what was the need to enact the Hindu Marriage Act. If the government had any guts to say that it wasn’t needed in 1954, all minorities would have had the same code.

Look at the Hindu Minority and Guardianship Act and Caste Disabilities Removal Act from 1850 to see the issues at hand. If the son converts he still inherits from the property. This law was enacted in 1850. It was amended by Hindus in the Hindu succession act while the rest of India and all other communities follow it in its original form. Look at the 26(2) of the Hindu Succession Act. The same story can be seen in the Special Marriage Act of 1954.

Gajendra Gadkar made this recommendation and within 13 hours this amendment was made into Parliament. Under the Indian Succession Act and Hindu Succession Act, if a Hindu marries under Special Marriage, he would follow the Hindu Succession Act, while a Muslim would be subject to the Indian Succession Act. This is unconstitutional. Now, who is dragging the feet? Who is putting the clock back?

Addressing Mr. Chari: When these kinds of laws were being made. Why didn’t your party oppose it? This is against the idea of uniform civil code. This is not fancy or my imagination. Read the statute book. What’s the justification for such legislation?

What is the need for the amendment to the Caste Disabilities Removal Act. We need a secular act by a secular Parliament.

On the issue of Goa, a large furore was made by the majority Hindu community in 1880, which issued the Gentile Hindu Usages Decree. It said that the basic customs of Hindu Community had to be respected and were subject to the provisions of this decree. This decree is enforced even today. Any other secular advocate of Uniform Civil Code should ask why can’t this be repealed to make the law in its original form without any exceptions to the majority community.

The Goa Bench of the Bombay High Court and the Judicial Commissioners of Goa still follow this. It is respected by the central government and by Goa which is a state. The decree was enforced in Goa(1880), Daman(1888) and Diu(1912). r by Goa which is a state. Thus the Hindu Law in itself is against the idea of uniform civil code.

It’s not a majority-minority question but the reality needs to be faced. Those who are vociferous in demanding uniform civil code should know that Article 44 needs to be made equal. However, it is not being done for the sake of gender justice and not for the sake of gender integration. It is only being used as a political stick to beat the minorities.

To put the blame squarely on Muslims is not fair. The idea of a Uniform Civil Code itself will be thwarted. Will the Hindu community agree to abandon due to Joint Family? Will they allow same law related to joint family? Will they allow land laws, tenancy laws and the peculiarity of Hindu family to be standardised?

Professor Peter DeSouza
I’d like to point out that we must go back to the debates in the feminist movement. You have to make it a common civil code, which is better than uniform civil code.

1. Argue for reform within communities. Eg: Rukma Bai in 1888
2. Personal is political and that is must be treated as that.
3. Women face injustice and fighting that injustice must be of paramount importance.

This 3-pronged approach must be used to make the issue of gender justice stronger. If the idea of a uniform or common civil code is propped as that of Hindus vs. the Others, it will not make any progress.

Justice Leila Seth

As a woman, I find the idea of triple talaq is abhorrent. You need to straighten it from the point of view that is discriminatory of women. I don’t care whether it is a uniform civil code or common civil code or any other method. But the issues of divorce, marriage, adoption, property, maintenance, taxation among many others need to be reformed for the women of our country to be given an equal footing.

Dr. Tahir Mehmood

Koran and Islamic law doesn’t provide for it. Distortion isn’t being allowed to be removed by civil code. When the triple talaq came into being, it was passed by a voice vote.

There are 4 model acts of Hindus which need closer scrutiny

For example, if a lady who has a child, she’s a Hindu and converts to become a Sikh or Buddhist religion, according to Hindu Law, she can remain a legal guardian of the children. However if the woman becomes a Muslim or Christian, she is not fit to be a mother or legal guardian.

If a Hindu man undergoes the process of adoption, he needs the permission of his wife. If he’s not Hindu, he doesn’t need any permission.

The Hindu Adoption and Maintenance Act,1956 which is supposedly a model for a civil code is abhorrent and will not get any acceptance. Reform the four acts which have already been passed. Then we can talk about Uniform Civil Code.

Reform will come only through judiciary. We will never be able to introduce any reform through the Parliament. Judiciary has to play its role.

In the Shabnam Hashmi adoption case, the court gave a good judgment but it could have been better.  Finally, I’d just like to say that politics should not be played by appointing former CJIs as Governors.

Advocate Rajeev Dhavan

The Directive Principles of State Policy gave us the idea of the uniform civil code. On the issue of conversion of people to Christianity, I would also like to suggest a book by Sudheer Chandra that I co-wrote. I feel that there’s no need to come to a consensus on the civil code. The first issue is about stealth. These reforms are achieved one by one, with or without stealth. To reform the Hindu Law was not an exercise in hypocrisy.

I’m not persuaded by Goa example. The Napoleonic code or Bismarck hadn’t occurred till the Portuguese civil code came up. The controversies came later. Portugal didn’t follow it to be followed in its entirety and was treated as canonical law. It eventually became a community law. Personal law should be held by the communities themselves.
How do we achieve speed on this reform? A feminist program or plan which starts with the community and believes in the incremental impact of law. Lets the instrumentality of law take over. If you say that we should take the Goan/Muslim example, what happens to the tribals?
We must show faith in the constituent assembly and in the power of people to take the task upto the courts.

Supreme Court is supreme but not infalliable. The Court avoids getting into the politics of minorities. We need to further explore the interrelationship between 14 and 25. Look at the Chhota Nagpur case where Only K Ramaswamy said I strike this down. So, who do we turn to? Not the BJP. Not the politicians. While we need to have consensus from Parliament moving forward, Parliament isn’t a place to have too much faith on it.

Accountability in AAP’s Participatory Democracy: MLA Report Cards

The Aam Aadmi Party attempts to improve and transform the way in which elected representatives interact and work with their constituents. Participatory democracy and true consensus-based governance is a difficult concept to grasp especially when the country has been sold upon the idea of “rulers” and “leaders”. People have forgotten that involving the people and its constituents in the process of governance can make local decisions effective, transparent, accountable and efficient.

To further this spirit, the Aam Aadmi Party will attempt to bring out report cards regularly from each of the 27 constituencies in Delhi to give its citizens a closer peek into the work that is going on right now and the process being followed. For your information, the guidelines for Delhi’s MLA Development Fund are given here.

In this post, I have 2 report cards for you: Shri Arvind Kejriwal as covered by Times of India and Shrimati Bandana Kumari.

MLA Report Card-Bandana Kumari

MLA Report Card- Arvind Kejriwal

Aside (in the vein of Shekhar Gupta’s National Interest Column): It was a few days after I had officially joined the Aam Aadmi Party and the BJP was (as it continues to) attempting to swing AAP and Congress MLAs in Delhi away from their parties to help BJP form a minority government by either resigning or absenting themselves or abstaining. As the newest policy, media and research recruit, I was being shown the ropes and the different people in the organization, when I attended my first MLA meet. In this internal meet, I saw a pale shadow of a woman, Shrimati Bandana Kumari, who was shuddering and afraid of the death threats meted out to her and her school-going children by some goons of the BJP. Her story had knives, abusive language, brash men with more power than the police and threats to kidnap her children in it, which had obviously gotten on her nerves. And that’s when I realized, while people were finding different reasons to jump from this ship, why her story was another reason to stay with the party and attempt to rebuild it. A true Aam Aurat had now become a Member of Legislative Assembly. She was someone who didn’t wield armed strength and was someone who feared for her children to the point of thinking of resignation from this seat of power. Someone who is as simple as the homely pictures in her Facebook album, and yet someone who doesn’t yield to muscle strength and leads the AAP Women’s Wing in Delhi that truly attempts women’s political participation within the party. Her report card only shows that the people of Shalimar Bagh made a good choice.

BJP’s Swachh Bharat Abhiyan = UPA’s Nirmal Bharat Abhiyan

Prime Minister Narendra Modi’s oratory is winning new fans everyday, whether it be his remarks on sanitation in the Independence Day speech or his usage of Star Wars references in New York. In yet another excellent PR move, his team has timed the BJP government’s cleanliness campaign to perfection, starting it off on October 2nd, the birth anniversary of Mahatma Gandhi, the father of the Indian nation, who tried hard and sincerely to convince fellow countrymen about the virtues of scavenging. PM Modi’s self-proclaimed deadline to end open defecation, human scavenging and improving sanitation facilities is 2019, one year ahead of the MDG-2020, timed to perfection, to Gandhiji’s 150th birth anniversary in 2019.

On the issue of a clean India, Yogendra Yadav makes some excellent points about accountability, untouchability, stigmas associated with cleaning and working conditions of our safai karamcharis (cleanliness workers) in his latest op-ed in the Indian Express. However, he really sums up my views and that of almost every Indian, skeptical or not, in this paragraph:

When the prime minister spoke from the Red Fort about the Swachh Bharat Abhiyan and the need for toilets for girls, it resonated with many Indians like me. At long last, a PM was talking about a real, mundane problem that affects peoples’ everyday lives. Granted, every sarkari function has a degree of tamasha and farce built into it. Yet, a campaign like this one can serve to focus on an issue that badly needed national attention. The sight of a national political leader picking up a broom can be empowering and liberating. So, the real question is not why the government wants to push the Swachh Bharat Abhiyan. The real question is what the government wants to pack into this campaign, and how it is going to approach this issue.

India shares the burden on 59.8% of the world’s open defecation, with 597 million Indians practising open defecation (Figure 1). Furthermore, the rural-urban inequality in usage of sanitation facilities is stark, with open defecation rates in urban areas at 12% while the same number in rural areas is 65% in 2012 (Figure 2).

Figure 1: Open Defecation in India: 2012 WHO Report

Figure 2: Usage of Sanitation Facilities: Rural-Urban Divide: 2012 WHO Report

Common sense would state that a radical overhaul of our drinking water and sanitation policy is required with targeted focus on rural areas. However, a close look at the new government’s first Union Budget reveals budgetary manipulation rather than radical overhaul.

Figure 3 and Figure 4, pasted below, are taken from the Expenditure Statement of the Union Budget 2014-15 for the Ministry of Drinking Water and Sanitation (MoDWS), which clearly show that allocations made by UPA have simply been transferred over by the BJP. The total allocation made by P. Chidambaram and Arun Jaitley for the MoDWS stands at Rs. 15,260 crore with the National Rural Drinking Water Programme receiving Rs. 11,000 crores and the Nirmal Bharat Abhiyaan (NBA) receiving Rs. 4,260 crores. The budgetary allocation and line items for the Nirmal Bharat Abhiyaan and the Swachh Bharat Abhiyaan are exactly the same. When I spoke to some budgetary experts, they told me that this same allocation keeps happening every budget, and all that every government does, is to tweak a few crores here and there, and give it a new name. The newest incarnation is the Swachh Bharat Abhiyaan, a project that has been renamed 4 times in the past.

Drinking Water and Sanitation Expenditure Budget Statement from 2014 Budget: Part-1

Drinking Water and Sanitation Expenditure Budget Statement from 2014 Budget: Part-2

I hate to bust your bubble but at least from an accountant’s perspective, this “Clean India” campaign or Swachh Bharat Abhiyaan is exactly the same as any of its predecessors. I love it that the Prime Minister is taking a special interest in this issue but the devil, unfortunately, lies in the details and not in press releases, high-definition Twitter photographs or brilliant executed speeches. But I’m sure our Prime Minister knows all this. I’m just hoping that he acts on it as soon as possible.

As this program rolls out, it is my fervent hope that this program doesn’t suffer the fate of India’s previous sanitation campaigns. Radical overhaul might not even be needed, but an honest effort towards implementation is necessary. The total allocation to the sector of drinking water and sanitation is 0.85 percent of the total Union Budget expenditure 2014-15 (BE), which is abysmally low and should be increased. The monitoring and reporting of the program should include a provision for social audits. The rural sanitation program should focus more on the usage of toilets, apart from building. Implementation should be efficient, effective, transparent and devoid of corruption, which is one of the biggest areas of pilferage in any social sector project undertaken by the Government of India. PM Modi’s ALS Ice Bucket Challenge and Salman Khan’s Jai Ho inspired viral cleaning challenge is awesome and quite smart but as long as the builder-contractor-politician-legislator nexus exists in India, I find it very hard to believe that this problem can be solved realistically in the long run, especially in rural India, where social media challenges don’t tend to reach but corruption does. To “Clean India”, we will have to cleanse its politics as well.