THE HINDU – CURRENT NOTE 15 February
SC verdict endsSasikala bid to become CM
•“We have analysed the evidence adduced by the parties and we come to the conclusion that A1 to A4 (Jayalalithaa, Sasikala, Sudhakaran and Elavarasi) entered into a conspiracy, and in furtherance of the same, A1 (Jayalalithaa), who was a public servant at the relevant time, had come into possession of assets disproportionate to her known sources of income during the check period (1991-96) and had got the same disbursed in the names of A2 to A4 and the firms and the companies involved to hold this on her behalf with a masked front,” the SC held.
•In its main judgment, spanning 570 pages, the Supreme Court indicted Jayalalithaa for conspiring with her three co-accused at her Poes Garden residence to launder her illegal wealth to purchase huge properties in the names of ‘masked fronts’ and shell entities.
•The court said Jayalalithaa did not accommodate Ms. Sasikala at Poes Garden out of some ‘philanthropic urge’ but with cold-blooded calculation to keep herself secure from any legal complications, which may arise from their criminal activities.
•‘Conspiratorial design’
•The Supreme Court concluded that in 1991 the assets of the accused were valued at Rs. 2.01 crore. By 1996, the accused were worth a whopping Rs. 66.44 crore.
•“Attendant facts and circumstances encountered in this case demonstrate a deep-rooted conspiratorial design to amass vast assets without any compunction and hold the same through shell entities to cover up the sinister trail of such illicit acquisitions and deceive and delude the process of law,” Justice Roy wrote in his separate concurring judgment.
•For the offence of criminal conspiracy leading to criminal misconduct of a public servant [Section 120 (B) IPC read with Section 13 (2)] of the Prevention of Corruption Act, all three were sentenced to simple imprisonment for six months and a fine of Rs. 10,000 each.
•The court described Jayalalithaa as a mastermind who misused her public office, who ‘masked banking exchanges’, who acquired ‘vast tracts of land’ for pittances and conspired with her co-accused at Poes Garden only to later ‘feign ignorance’ about any crime committed.
•It methodically gave reasons why all four accused were guilty of criminal conspiracy.
•One, the fact that Jayalalithaa had executed a General Power of Attorney (GPA) in favour of Ms. Sasikala in respect of Jaya Publications. This was done, the court said, for Jayalalithaa to maintain a respectable distance from inflow and outflow of money meant for property acquisitions. The court said Jayalalithaa “knew fully well that Sasikala would be dealing with her funds credited to her account in Jaya Publications.”
•Two, the court pointed out that the next proof of conspiracy was the speed and manner in which firms were created by the accused persons. “It has come in evidence that 10 firms were constituted in a single day. A2 and A3 started independent concerns and apart from buying properties, no other business activity was undertaken by them,” the SC noted. The court concluded that these shell entities were mere extensions of Namadhu MGR and Jaya Publications and they owed their existence to Jayalalithaa and Ms. Sasikala. All the business they did was buy property.
•Further, the court said there was no use of Jayalalithaa pretending that she was not aware of the activities of Ms. Sasikala and the other two at Poes Garden. “Constitution of firms and acquisition of large tracts of land out of the funds provided by A1 [Jayalalithaa] indicate that all the accused had congregated at Poes Garden neither for social living nor had A1 allowed them free accommodation out of humanitarian concern,” Justice Ghose wrote.
•“Rather facts and circumstances provided in evidence undoubtedly point out that A2 to A4 were accommodated in the house of A1 pursuant to the criminal conspiracy hatched by them to hold the assets of A1,” the court held.
Weather officialsto study possibleemergence of El Nino
•Meteorologists are likely to review the threat to the Indian monsoon from a possible El Nino. Scientists from the India Meteorological Department, Indian Institute of Tropical Meteorology and the Ministry of Earth Sciences are expected to meet in Pune later this week to analyse a range of forecasts from international climate models – and their own –that suggest waters are likely to warm and change wind patterns enough to El Nino-like conditions.
•El Nino refers to an anomalous heating up of the waters in the central-eastern regions of the equatorial Pacific and implies a consistent, average rise in temperature of 0.5 degree Celsius above normal. Historically that translates to the monsoon drying up over India six out of 10 years.
•In the normal course of events, the Pacific waters ought to have been in the converse cool, La Nina mode and only begin a warming trend late after India’s summer monsoon period of June-September.
•However these trends are expected to begin around March and – the part that’s still contentious – have an El Nino during the latter half of the monsoon.
•Meteorologists however say it’s too early to be sure of an El Nino and its impact on the monsoon.
•For one, predictions made from a climate model before March could dramatically differ from that in April or later because of the way oceans and atmosphere influence each other, a phenomena that meteorologist call the Spring Barrier effect. Secondly, according to K.J. Ramesh, Director General of IMD, an El Nino by itself wasn’t enough to disrupt a monsoon.
•“We have to study how it influences the sea around India and there could be local factors that may be stronger,” he told The Hindu. However, one significant influencer, the Indian Ocean Dipole (IOD), doesn’t bode well for India. According to a report by the IMD in mid January: “…positive IOD conditions weaken in MAM (March, April, May) and turn to negative IOD conditions from AMJ (April, May, June) onwards.” A positive IOD is traditionally known to bolster monsoon rains in India.
The long and winding roadto justice
It has taken over two decades, but the conviction of V.K. Sasikala has come not a moment too soon. Now the Governor has to ensure that the MLAs are able to choose their next leader without fear or coercion
•Finally, the curtain has come down on one of India’s most high-profile corruption cases. Twenty-one years after the case began, State Of Karnataka v. Selvi J.Jayalalithaa & Others has ended with the conviction of all the accused under the Prevention of Corruption Act. Two judges of the Supreme Court, each authoring a judgment, allowed the appeal of the State of Karnataka against the Karnataka High Court judgment and restored the judgment of the trial judge, John Michael D’Cunha. The sentence of the main accused, former Tamil Nadu Chief Minister Jayalalithaa, abates since she is no longer alive. V.K. Sasikala must now go to prison for four years, and for six years more she cannot stand for election. With two strokes of the pen, the political landscape of Tamil Nadu has been drastically altered. With the finality of this ruling, the long arm of the law has caught up with the accused, but it also needs to be noted that it took a long and meandering course to do so.
From the beginning
•In 1996, Subramanian Swamy filed a criminal complaint under the Act, alleging accumulation of vast wealth through corrupt acts by the erstwhile Chief Minister abetted by her close aide. What is required under Section 13(1)(e) is for the prosecution to prove that the assets of the public servant are disproportionate to his or her known sources of income. Once done, there is a presumption of guilt. It is a provision designed to combat corruption by public servants, and for guilt or innocence to be quickly established.
•Except that in this case it took 18 years for the judgment of the trial court to be handed down. A battery of ingenious lawyers filed a steady stream of jurisdictional objections and interim applications on technical and procedural aspects, and then spun them out through appeals to the High Court and Supreme Court. Some were remarkably innovative; for example, the plea that Ms. Sasikala did not understand English and therefore the hundreds of pages of documents should be translated into Tamil. It took several years to resolve this issue, and then some more time before the documents were translated. (They were probably never referred to again.) One thing this case demonstrates is the failure of the courts to speedily dispose of such petitions and ensure that these cases are fast-tracked, which is what proper governance demands.
•The case was transferred to Karnataka following attempts by prosecutors in Tamil Nadu to oblige the principal accused, who by this time was back in power as Chief Minister. Two appointments made there proved crucial — the no-nonsense trial judge, Judge D’Cunha, and a seasoned prosecutor, the eminent lawyer B.V. Acharya. In September 2014, the former rendered the judgment, 18 years after inception of the case. He found that during the period 1991-1996, the extent of disproportionate wealth was to the tune of ₹58 crore. The main accused was sentenced to four years of imprisonment and asked to pay a fine of ₹100 crore. Ms. Sasikala, guilty of abetment, also got a four-year term with a fine of ₹10 crore.
•An appeal was filed in the Karnataka High Court. Bail was denied and the accused moved the Supreme Court. Chief Justice H.L. Dattu granted bail. But curiously, he directed the disposal of the appeal by the High Court in three months. He did so without any request from the accused, and gave no reason. The last thing an accused wants is an early trial, and the first thing a convicted leader wants is an early hearing of the appeal. The accused in this case benefited on both counts. This capsulated time period would deprive the prosecution of adequate time to present its arguments.
Then, an acquittal
•In May 2015, Justice C.R. Kumaraswamy of the Karnataka High Court acquitted all the accused. A cursory reading of his judgment shows up its errors. He sharply reduced the value of assets. He steeply increased the income, inflating the amount of loans taken. He brought down the disproportionate wealth to about ₹2.8 crore. Even then, there was an 8.12% gap which he sought to overcome by applying a 1976 judgment of the Supreme Court in Krishnanand Agnihotri v. State of Madhya Pradesh. There the disproportionate amount was only ₹11,000, which was less than 10% of the total income, and the court said that this small difference could be condoned. Justice Kumaraswamy did not explain how that could become the norm for a case such as this. It was a judgment crying out for reversal.
Sharpening the fightagainst tobacco
Towards the end of 2016, the Commerce Ministry sent a note to the Cabinet proposing a blanket ban on foreign direct investment (FDI) in the tobacco sector. Although India banned FDI in tobacco manufacturing in 2010, foreign tobacco companies are allowed to invest through technology collaboration, licensing agreements and by forming a trading company. The Commerce Ministry’s proposal, which NITI Aayog has opposed, would put an end to all kinds of participation of foreign companies in the tobacco sector. The government cites the World Health Organisation (WHO) Framework Convention on Tobacco Control (FCTC) as the reason for this step. As per this convention, India is under an obligation to reduce high consumption of tobacco products which pose a grave public health danger.
However, this proposal has not gone down well with the American tobacco giant, Philip Morris International (PMI), which has invested in the Indian tobacco market through a licensing agreement with Godfrey Phillips India. Additionally, the Swiss affiliate of PMI has also entered into a joint venture with some Indian companies to form a wholesale trading group involved in selling tobacco products. As recently reported, PMI, keen to maintain a foothold in the $11 billion Indian tobacco market, has written letters to the Commerce Minister and to NITI Aayog arguing that such a ban would be ‘discriminatory’ and ‘protectionist’.
Risk of investor-state dispute settlement claims
It is quite possible that PMI might challenge any such blanket ban under India’s bilateral investment treaties (BITs). This is especially so given the two recent instances of PMI opposing anti-tobacco measures of two countries under BIT’s investor-state dispute settlement (ISDS). First, Philip Morris Asia (PMA) challenged Australia’s plain packaging regulations under the Hong Kong-Australia BIT. However, the ISDS tribunal refused to hear this case for lack of jurisdiction. Second, PMI challenged Uruguay’s regulation requiring tobacco companies to put pictorial warnings on 85% of the area on cigarette packets, under the U.S.-Uruguay BIT. The arbitration tribunal, rejecting the claim of PMI, held that it was within the sovereign regulatory powers of Uruguay to impose such restriction to protect public health.
Though PMI cannot bring a BIT case against India because there is no India-U.S. BIT, its Swiss affiliate could surely bring a claim under the India-Switzerland BIT, which protects not just direct investment but also shares,
stocks and other forms of participation in a company. As PMI has already indicated, the FDI blanket ban could be challenged as being discriminatory by favouring domestic tobacco investors over foreign investors. India might be asked why it didn’t consider adopting other less foreign investment-restrictive regulatory measures to meet the objective of reducing tobacco consumption. The reported termination of this BIT by India will not impact any such claim because the treaty contains a survival clause promising protection to existing foreign investment for the next 10 to 15 years.
Plain packaging regulation
In view of this, India should consider alternative regulatory measures, which will better achieve the objective of reducing tobacco consumption and be less investment-restrictive as well. One such measure is adopting plain packaging regulation. This is better than banning FDI completely for two reasons: one, while the FCTC does not contain any provision on banning FDI as a means to reduce tobacco consumption, it specifically talks about countries adopting packaging and labelling requirements to create better awareness about the harmful effects of tobacco consumption. Thus, even if Philip Morris or any other investor were to challenge a plain packaging regulation, India would be on a much stronger legal wicket in defending it than defending a complete ban on FDI. Second, we are unsure how prohibiting FDI through licensing arrangements, etc. would help reduce tobacco consumption. Domestic players could occupy the market freed up by foreign players. Also, did banning FDI in tobacco manufacturing in 2010 result i
n reduced tobacco consumption? On the other hand, studies from Australia show that smoking rates plunged by 12.2% after plain packaging regulations were introduced.
In the past, some efforts have been made to introduce plain packaging regulations in India. In 2012, Baijayant Panda introduced a bill in the Lok Sabha to amend the Cigarettes and Other Tobacco Products Act (COTPA) proposing plain packaging of cigarettes in India. However, the bill failed. In 2014, the Allahabad High Court allowed a petition on plain packaging regulation and said that the Central government must implement it. A petition on this was also filed in the Supreme Court last year. However, the plain packaging regulation still remains a pipe dream.
Another effective measure is to increase taxes on tobacco products. Though they have increased over the years, some studies argue that overall taxes on
cigarettes in India are still low relative to other countries. Also, for strange reasons, bidis have often been exempted from increase in excise taxes despite being the most commonly used tobacco in India. The 2017-18 Budget has only marginally increased the excise duty on handmade bidis, from ₹21 to ₹28 per thousand.
We also need a proactive government that does not drag its feet when it comes to adopting tobacco regulations as it happened in the case of implementation of the 85% pictorial warning requirement on cigarette packets. Despite notifying this regulation in October 2014, the government didn’t implement it because it was ostensibly red-flagged by Parliament’s committee on subordinate legislation, which had the owner of a bidi empire as one of its members! This notification was finally implemented from April 1, 2016 after the Supreme Court’s intervention. In sum, the government needs to demonstrate strong political will and carefully choose policies to deal with the menace of high tobacco consumption.
Prabhash Ranjan and Pushkar Anand are Assistant Professors of Law at South Asian University and University of Petroleum and Energy Studies. Views are personal.
No need to stand ifNational Anthemis part of film, clarifies Supreme Court
•There is no need to be on your feet inside a cinema hall when the National Anthem is featured as a part of a film, documentary or a newsreel.
•The Supreme Court issued this second clarification on its November 30 order, directing all to mandatorily stand up when the National Anthem is sung or played in a cinema theatre.
•“It is clarified that when the National Anthem is sung or played in the storyline of a feature film or as part of the newsreel or documentary, apart from what has been stated in the order dated 30.11.2016, the audience need not stand,” Justice Dipak Misra, heading a Bench, also comprising Justice R. Banumathi, directed.
Several applications filed
•The court’s clarification came after several applications were filed on the question, including from the Conference for Human Rights and the Kodungallur Film Society.
•On December 9 last year, the Supreme Court first modified its November 30 order by exempting physically challenged or handicapped persons from standing up when the National Anthem is played before film screenings.
•On November 30, the court had ordered cinema halls to mandatorily play the anthem and had directed all those present there to stand up to show respect.
•The court said the practice would instil a feeling of committed patriotism and nationalism.
•It also ordered cinema halls to display the national flag on the screen when the anthem was played. The playing of the anthem in cinema halls, it said, was to be conceived as an opportunity for the public to express their “love for the motherland”. “It is time people feel ‘this is my country’,” Justice Misra had remarked. The order came on a writ petition filed by Shyam Narayan Chouksey in October this year.
•The petition, which referred to the Prevention of Insults to National Honour Act of 1971, claimed that the “National Anthem is sung in various circumstances which are not permissible and can never be countenanced in law”.
‘Thubber’ for use insoft,stretchable electronics
•In a breakthrough for creating soft, stretchable machines and electronics, scientists have developed a novel rubber material with high thermal conductivity and elasticity.
•The material, nicknamed ‘thubber’, is an electrically insulating composite that exhibits an unprecedented combination of metal-like thermal conductivity, elasticity similar to soft, biological tissue, and can stretch over six times its initial length.
•“Our combination of high thermal conductivity and elasticity is especially critical for rapid heat dissipation in applications such as wearable computing and soft robotics, which require mechanical compliance and stretchable functionality,” said Carmel Majidi, an associate professor at Carnegie Mellon University in the US.
Diverse applications
•Applications could extend to industries like athletic wear and sports medicine — think of lighted clothing for runners and heated garments for injury therapy.
•Advanced manufacturing, energy, and transportation are other areas where stretchable electronic material could have an impact, researchers said.
•“Until now, high power devices have had to be affixed to rigid, inflexible mounts that were the only technology able to dissipate heat efficiently,” said Jonathan Malen, an associate professor at Carnegie Mellon University.
•“Now, we can create stretchable mounts for LED lights or computer processors that enable high performance without overheating in applications that demand flexibility, such as light-up fabrics and iPads that fold into your wallet,” said Mr. Malen.
•The key ingredient in “thubber” is a suspension of non-toxic, liquid metal micro-droplets.
•The liquid state allows the metal to deform with the surrounding rubber at room temperature. When the rubber is pre-stretched, the droplets form elongated pathways that are efficient for heat travel. — PTI
Trade unions opposechangesto Factories Act
•The central trade unions, in a meeting with Labour Minister Bandaru Dattatreya, have opposed the Centre’s proposed change to empower states to increase threshold limit for coverage of factories under the Factories Act, 1948.
•“The central trade unions strongly object to the amendment proposed to the definition of ‘factory’ giving powers to State Governments to increase the threshold limits of workers up to 20 and 40 in the case of establishments working with and without the aid of power respectively,” a joint memorandum submitted by 12 central trade unions to the Labour Minister said.
•The unions demanded covering all manufacturing firms under the Factories Act. The present Factories Act, 1948 applies to establishments with 10 or more workers, if the premise is using power and to establishments with 20 or more workers, without electricity connection.
•The Centre has proposed an enabling provision that lets State governments decide the threshold over which a unit will be considered a factory for the purpose of the law.
License needed
•The unions also opposed another proposal allowing entrepreneurs to set up factory without getting a license. The Centre believes that the registration of factories on a web-based portal would be enough.
•“In the name of online registration, the process of self-certification coupled with deemed approval and the removal of licencing will result in freeing the employer of any regulatory control. This will endanger the health and safety of workers and society at large,” the unions said.
•A trade union leader said the Labour Ministry officials remained tight-lipped on its earlier proposal to create a new for factories with less than 40 workers, proposed as the Small Factories Bill, 2015.
•The labour unions requested the government to circulate the draft Bill to amend the Factories Act, 1948.
The Labour Ministry circulated a note to the unions stating the proposed changes to the Act instead of copy of the draft Bill. “The Labour Minister assured that the copy of amended Bill will be sent to trade unions for their comments,” D.L.Sachdev, Secretary, All India Trade Union Congress said.
NSA’s exit could hitTrump’s Russia reset
•Michael Flynn’s resignation as the National Security Adviser to Donald Trump over his Russia contacts could reset the U.S. President’s attempts to reset ties with Moscow.
•Mr. Flynn said in his resignation letter that he held numerous phone calls with foreign diplomats and officials in course of his duties as the incoming NSA. At the core of the controversy is whether or not Mr. Flynn told the Russian ambassador in Washington that Mr. Trump would reverse the new sanctions that Mr. Obama was imposing on Russia for allegedly interfering in the U.S. elections.
•Democrats, critical of Mr. Trump’s overtures to Russia have seized the opportunity to attack the administration. John Conyers Jr and Elijah Cummings, senior members of the House committees, have demanded a classified briefing on the entire fiasco. “We were shocked and dismayed to learn this evening of reports that three weeks ago, U.S. law enforcement officials warned the White House Counsel that General Flynn had provided false information to the public about his communications with the Russian government, but that the Trump Administration apparently did nothing about it,” they said.
More worries
•More challenging for Mr. Trump will be questions about the extent of his own knowledge of Mr. Flynn’s contacts with the Russian envoy. “Great move on delay (by V. Putin) — I always knew he was very smart!” Mr. Trump had tweeted on December 30, after Mr. Putin held back on retaliatory expulsion of American diplomats from Russia.
•After initial news reports about the monitored phone calls, Vice-President Mike Pence and White House spokesperson Sean Spicer had defended Mr. Flynn. They said the conversations did not touch upon sanctions. Mr. Flynn and the Russian ambassador spoke several times during the transition, but in one conversation on December 29, 2016 — the day Mr. Obama announced new sanctions on Russia and ordered 35 Russian diplomats to leave the country — he apparently said the incoming administration would review the sanctions, according to fresh reports last week.
•Not only that the new revelation put Mr. Flynn in a spot, but also triggered strife within the close circle of presidential advisers. With nobody willing to defend him any longer, Mr. Flynn put in his papers.
•“Unfortunately, because of the fast pace of events, I inadvertently briefed the Vice-President-elect and others with incomplete information regarding my phone calls with the Russian ambassador,” he wrote. “I have sincerely apologised to the president and the vice president, and they have accepted my apology.” “In just three weeks,” Mr. Trump “has reoriented American foreign policy in fundamental ways to restore America’s leadership position in the world,” according to Mr. Flynn.
•Democratic lawmakers and some commentators have said Mr. Flynn’s promise to the Russian ambassador to review the U.S. sanctions was in violation of the Logan Act that forbids any private U.S. citizen from conducting foreign policy.
