Guest post: SOWL holds 2nd Annual Conference on 'Law, Social Change and Gender'

The India International Centre, hosted SOWL India’s 2nd Annual Conference themed “Law, Social Change and Gender” which brought together prominent lawyers, academics and policy-makers. The violent sexual assault perpetrated on a student last year in Delhi which served as stimulus for appointment of the Verma Committee and the legislative amendments thereafter along with a slew of ‘women-centric’ initiatives, formed the theme of this year’s conference. SOWL India brought together various voices that are influencing law and policy pertaining to violence against women, as part of its 2013 Annual Conference.

          The event commenced with a keynote address by Retd. Justice Leila Seth who reminisced about the challenges she faced as one of two lady lawyers in the Patna High Court. Her anecdotes drove home the misogyny that those of her ilk had faced and overcome for it to be smooth sailing for us thereafter. She talked about her experiences as a member of the Verma Committee and underscored her disappointment with the piecemeal amendments of the criminal law. She remarked that change was always incremental and although an 80 year old (Late Justice Verma) and an 82 year old (herself) had believed along with the solitary ‘young man’ on the Committee (Mr. Gopal Subramaniam) that it was time to outlaw marital rape, our law makers didn’t think it was time.

          The first panel moderated by Swathi Sukumar, Litigator and Member of the Governing Council focused on the inter-relationship between law and civil society. Nivedita Menon underscored her healthy distrust of the law and discussed the various feminist critiques of the law. With specific reference to women’s reservation in India she talked about how while one set of feminists advocate the ‘sameness’ approach that treats all beneficiaries as equal, it cannot work when women have traditionally been undermined either by patriarchal laws or misogynistic interpretations of the law (case in point: Justice Seth’s illustration of how despite the Constitution treating women as equals, they were considered persona non grata and were not allowed to practice law despite the Advocates Act applying to ‘persons’). On the other hand the ‘difference’ approach is fraught with risks in that it promotes protectionism. The next speaker was Colin Gonsalves who talked about a range of issues from the hurdles faced by legal aid warriors to the lethargy and lack of inertia in established legal aid centres to dispense genuine aid.

          Post lunch it was a panel that Shwetasree Majumder, General Secretary of SOWL, moderated. The opening speaker, Dr. (Prof.) Mrinal Satish, whose doctoral dissertation at Yale was on Rape Sentencing in India, highlighted the recommendations of the Verma Committee and the glaring procedural and substantive errors in the law as it was amended. For instance he highlighted how despite the legislators purportedly enacting the amendments in response for the public outcry for the death penalty have, on account of slipshod editing, omitted to add the death penalty for gang rape while proscribing it for aggravated rape by an individual. Advocate Malavika Rajkotia who spoke on the Women’s Reservation Bill thereafter viewed the legal instrument as doing only lip service and no real good for the cause of women. Noted criminal lawyer and Senior Advocate Rebecca John spoke thereafter on police reform and relied on a number of real life examples to demonstrate that the autonomy of the police is only one half of the picture and that if political control is removed and there is no civil society or judicial control to take its place corruption will be an even bigger malaise. She concluded on a poignant note with the words “When courts curtail liberty we trust them, when they defend liberty we are suspicious.” Karuna Nundy, a Delhi based lawyer spoke about the recently enacted and highly problematic Sexual Harrassment in the Workplace Act. Finally Nandini Sundar made an impassioned plea for repeal of the Armed Forces Special Powers Act for the havoc it wreaks on women in conflict zones.

          Meant to act as a platform for professional development, mentorship, pro-bono activity and legal activism, SOWL’s second Annual Event made a conscious attempt to involve the attendees in an active conversation with some of India’s foremost legal minds.

http://www.barandbench.com/content/guest-post-sowl-holds-2nd-annual-conference-law-social-change-and-gender#.UfdTEY2Nmss

Supreme court asks NGOs to suggest methods to strengthen clinical trial laws

The Supreme Court Friday asked the central government to discuss with states all facets of a legal framework to regulate and monitor clinical trials of new drugs by foreign firms across India. A bench of Justice R.M.Lodha and Justice Madan B. Lokur also asked petitioner Swasthya Adhikar Manch, the National Human Rights Commission (NHRC), NGOs and other organisations to submit their suggestions for strengthening the legal regime to regulate clinical trials so as to minimise the harm to the patients upon whom the new drugs were being tested.

The court asked the union health secretary to call a meeting of the chief secretaries/health secretaries of the states and union territories and report to it on the outcome as it directed the next hearing Sep 24. The court’s order came on a public interest litigation by Swasthya Adhikar Manch of Indore and others who sought a halt to ‘unethical’ clinical trials by multinational drug companies of their new products in India and treating of Indian patients as guinea pigs.

Complimenting the NGO and others for focusing on the issue, Justice Lodha said: ‘Your efforts have brought some changes. They (government) have become conscious of difficulties or the problems people are facing.’ Noting that the central govenment has taken some measures to strengthen the mechanism to regulate the clinical trials, the court said: ‘What we are interested in is that what has happened in the past should not get repeated. Arrest the recurrence of death and side effects because of clinical trials.’

The court’s observation came after Additional Solicitor General Siddartha Luthra told the court that the government was bringing amendments to the law that will put in place a stringent regulatory mechanism and provide for punitive punishment for those violating it. He told the court that amendments would be effected in the monsoon session of parliament. Making clear that it was up to the government to take the call to put in place a strong legal regime to regulate the clinical trials, the court said that alternatively it will have to step in. In the course of the hearing, the court asked Luthra why can’t there be a committee to oversee the clinical trials.

‘Why don’t you consider constitution of an oversight committee to oversee all such clinical trials?’ it asked. ‘Technology must grow’, Justice Lodha said, adding that ‘regulation has to be in such a way that no harm is caused (to the patients tht was begin tested upon) or it is minimized’. The court’s observation came in response to Luthra’s submission that the available medicines had to develop to treat new strains of diseases. He said that people suffering from ailments defying treatments volunteer to be tested on new medicines. Senior counsel Colin Gonsalves, appearing for one of the petitioners, said the statutory provision for regulating clinical trials was good but was not being enforced.

On the other hand, senior counsel Sanjay Parikh told the court that there was nothing new in the government response and it was same as it had given to the Parliamentary Standing Committee on Health. ‘New chemical entities that have not been tested should not be allowed to be tested in India as they were resulting in deaths,’ Parikh said, alleging that in fact it were the drug companies that were authoring reports on their drugs on which the drug controller was putting his signatures.

http://health.india.com/news/supreme-court-asks-ngos-to-suggest-methods-to-strengthen-clinical-trial-laws/

Court notice to centre, Reliance on gas price

New Delhi, July 29 (IANS) The Supreme Court Monday issued notice to the central government, Petroleum Minister Veerappa Moily and Reliance Industries Ltd on a PIL seeking review of the recent government decision to hike natural gas prices from $4.2 to $8.4 per million British thermal unit (mmBtu) from April 2014.
Besides Reliance Industries Ltd, notices have also been issued to NIKO Resources Ltd and BP Exploration (Alpha) Limited.

A bench of Chief Justice P. Sathasivam, Justice Ranjana Prakash Desai and Ranjan Gogoi issued notice on the public interest litigation (PIL) by Communist Party of India leader Gurudas Dasgupta contending that the government decided to hike the gas prices without taking into account its disastrous consequences on the country's economy, particularly power and the fertiliser sector.
Former petroleum secretary E.A.S. Sarma is second petitioner along with Gurudas Das Gupta.

The PIL has urged the court to direct the government to produce records of its decision increasing the price of the gas and thereafter quash the said decision.

Dasgupta has contended that the price hike was decided even when four cabinet ministers had opposed the move.

Accusing the government for batting for RIL, Dasgupta, after the court hearing, told media persons that for every trivial issue, the government sets up a group of ministers (GoM) but for doubling the prices of natural gas, it did not done so.

"I wrote four letters to the prime minister (Manmohan Singh). He acknowledged my letters but did not give answers to the points raised by me," he said.

"Prime minister is insensitive to what remains of fruitful democracy," the CPI parliamentarian said, alleging that after then petroleum minister Jaipal Reddy was removed, every decision he took was changed by Moily.
Appearing for the petitioners, senior counsel Colin Gonsalves told the court that Moily over-ruled all the objects raised by his own ministry's officials and that by Director General of Hydrocarbons.

Both Gupta and Sarma have sought direction to the cabinet secretary to place before the court the entire records relating the gas exploration by RIL in KG basin, the price increase effective April 2014 and other aspects raised in the PIL.

It also sought the enforcement of relinquishment clause by which government should reclaim 80 percent of the KG Basin gas field that has not been utilised by Reliance.

The PIL has sought direction to RIL and NIKO to "forthwith relinquish those areas of KG basin as are recommended by the CAG in its report... and delineated by the DGH" and further direct the government to "forthwith take the possession of the relinquished area".

Seeking direction that the price of domestically produced gas be fixed in rupee and not in dollars or any other currency, the PIL has sought the setting up of a court commission to "inquire into the real cost of gas at the well-head in the KG basin and also into the capacity of the basin itself and other related issues".

The PIL has also sought direction to the CAG to "expeditiously complete the performance and fiscal audits of the project costs" and with the liberty to approach the court for directions as and when obstacles are put in the way of said audit.

If any criminal conduct surfaced in the findings of the CAG, the PIL urged the court to set up a Special Investigating Team to probe the findings of criminal conduct and prosecute the offenders.

The court has also been asked to direct the government and others to proceed with the arbitration of the financial dimensions on account of shortfall in production in natural gas production.

The arbitration is rooted in the government informing the RIL that based on the cumulative shortfall in the production vis a vis approved production target upto year 20111-12, $1005 million would be disallowed from the cumulative cost incurred till that time.

Senior counsel Harish Salve sought to debunk this prayer contending that it was RIL which had sought the arbitration of the issue and government back-tracked on it.

Salve accepted notice on behalf of Reliance. Notices are returnable in four weeks.
The court directed listing of the matter Sep 6.
http://www.newstrackindia.com/newsdetails/2013/07/29/379--Court-notice-to-centre-Reliance-on-gas-price-.html

Gas pricing: SC to examine policy, issues notices to Centre, RIL

New Delhi: Government's controversial decision to raise the price of natural gas reached the Supreme Court which today agreed to examine the matter.

Taking up a PIL filed by CPI MP Gurudas Dasgupta, the court issued notices to the Centre, Reliance Industries Ltd (RIL) and the Petroleum Minister Veerappa Moiley.

The bench headed by Chief Justice P Sathasivam said that the issue raised by the senior MP needs examination and the petition cannot be rejected at the initial stage.

The apex court also sought response from BP Exploration (Alpha) Limited, NIKO Resources Ltd and Ministry for Petroleum & Natural Gas on a PIL filed by CPI MP Gurudas Dasgupta who alleged that no due diligence was done by the government while increasing the price of natural gas.

The court directed the parties to file their response within four weeks and posted the matter for further hearing to September 6.

The MP pleaded for a slew of directions including review of Centre's decision to increase the price of natural gas from USD 4.2 per million British thermal unit (mbtu) to USD 8.4 mbtu from April 1, 2014.

Senior advocate Colin Gonsalves, appearing for Dasgupta, submitted that the decision to raise the price needs to be examined as the Petroleum Minister has overruled the opinion of senior officers of the ministry and his predecessor.

He also sought direction to RIL and NIKO to relinquish those areas of the KG basin forthwith as are recommended by CAG in its report and Centre to take possession of the area.

The petition alleged that Moily was stalling arbitration proceedings against the RIL to recover a penalty of USD 1 billion from the firm for allegedly violating contractual obligations in gas extraction in the Krishna-Godavari basin.

The petition pleaded for appointment of a third arbitrator (umpire) and expeditious completion of arbitration within 6 months.

Senior advocate Harish Salve, appearing for RIL, opposed the petition and said that there is no point in "junking" arbitration proceedings.

Dasgupta, in his petition, said that Moily was going against the recommendations of the Directorate General of Hydrocarbons (DGH) and the Comptroller and Auditor General (CAG) that the Mukesh Ambani-owned RIL should surrender a part of the gas block allotted to it and pay additional penalties.

"It is therefore most respectfully prayed that this Court may graciously be pleased to issue an order directing the respondents no. 1 to 3 (Centre, Moily, Petroleum Ministry), in addition to the order disallowing cost recovery of USD 1 illion, to additionally and forthwith disallow cost recovery for the period 2012-13 to the extent of USD 1.7 billion and for the period 2013-14 to the extent of USD 2.4 billion," the petition said.

It also said that CAG be asked to expeditiously complete financial audits of the project costs and Cabinet Secretary be directed to produce the entire record relating to the subject matter before the apex court.

The decision of the Petroleum Minister to overrule the CAG and the Director General, Hydrocarbon and not insist on relinquishment is illegal and malafide.

"All these decisions have been taken against the national interest and for collateral gain....The minister has made up his mind to overrule CAG and to provide windfall and unjustified gain to Reliance," the petition said.

Dasgupta submitted that he had filed a complaint to the PMO on the issue but the prime minister did not take any decision on it and that he was forced to approach the Supreme Court.

http://zeenews.india.com/business/news/companies/gas-pricing-issue-sc-issues-notices-to-ril-centre_80777.html

Supreme Court seeks response from Centre, RIL on gas pricing

The Supreme Court on Monday issued notices to the Centre and Reliance Industries (RIL) on a public interest litigation (PIL) against the increase in natural gas price, filed by Communist Party of India leader Gurudas Dasgupta and former Union power secretary E A S Sarma.

A bench headed by chief justice P Sathasivam asked the Centre and RIL to respond within four weeks. The next hearing is scheduled on September 6. The central government, petroleum minister M Veerappa Moily, the petroleum ministry, RIL, Niko Resources and BP are among the respondents in the PIL.

“The bench has asked us why Moily is included in the list. To which, we responded there are charges levelled against him which need to be addressed,” Dasgupta’s counsel Colin Gonsalves told Business Standard. The PIL prayed for a stay on the decision to increase the price of domestic natural gas from $4.2 per million British thermal unit (mBtu) to $8.4 a mBtu, applicable from April 2014.

The PIL has also sought the apex court’s intervention in the appointment of a presiding arbitrator for a panel looking into RIL’s right to recover its investment in the KG-D6 block from gas sales, thereby completing the process within six months.

Dasgupta had alleged that the petroleum ministry was sitting on a penalty of $1 billion imposed on RIL in FY12 and also failed to implement relinquishment of 86 per cent of the KG-D6 block area held by RIL.

The Rangarajan committee had proposed a pricing by taking an average of the prices in US, Europe and Japanese hubs and then averaging it out with the netback price of imported liquefied natural gas to give the sale price of domestically-produced gas.
Netback is the total cost of bringing crude oil to the marketplace and the revenues from all the products that are generated from it.

When Harish Salve, who appeared for RIL, notified that a Comptroller and Auditor General report cannot be the basis to maintain such a petition, the Bench indicated the petition cannot be ignored as Dasgupta is a senior Parliamentarian.

While those supporting the price hike claim the move would boost further investment in exploration, those against it say the move would raise the government’s subsidy outgo in sectors like fertiliser and power.
http://www.business-standard.com/article/economy-policy/supreme-court-seeks-response-from-centre-ril-on-gas-pricing-113072900919_1.html

Conspiracy behind move to double gas price: PIL

NEW DELHI: The Supreme Court on Monday issued notices to the Centre, RIL and petroleum minister Veerappa Moily and sought their replies on a PIL which alleges conspiracy in the government's decision to double the price of natural gas from April 2014.

Before seeking replies from the respondents within four weeks, a bench of Chief Justice P Sathasivam and Justices Ranjana P Desai and Ranjan Gogoi sought clarifications from Colin Gonsalves — counsel of petitioners MP Gurudas Dasgupta and ex-power secretary E A S Sarma — and heard RIL counsel Harish Salve.

To Salve's preliminary objections, the bench said, "We cannot brush aside the assertions of an MP at the preliminary stage. You (respondents) file your replies and we will consider it." It fixed hearing on the PIL for September 5.

The petitioners alleged that KG basin gas exploring contractors, RIL and NIKO Resources, entered into a conspiracy with the Centre "to provide exorbitant, unreasonable and excessive profits to the contractors, which will bankrupt the exchequer and severely affect the Indian economy".

They sought quashing of the gas price hike and requested the court to direct the government to ensure that henceforth "the price of domestically produced gas is fixed in rupees and not dollars or any other currency".

"Appoint a court commission comprising independent and fearless officers and experts having expertise in the area of this dispute to inquire into the real cost of gas at the well-head in the KG basin and also into the capacity of the basin itself and related issues raised in the petition," they said.

Dasgupta and Sarma also alleged that certain benefits were being granted to the contractors by government for mala fide and collateral gain which would increase the subsidy burden enormously. They also said the gas price hike would "enormously impact" food and energy security resulting in higher prices of fertilizers, food products and cooking gas affecting the poor.

Quoting comptroller and auditor general's report, they sought a direction to RIL and NIKO to "forthwith relinquish those areas of KG basin as recommended by the CAG and delineated by the Director General of Hydrocarbon". Salve said RIL was ready to relinquish these and had already written to the government in this regard.

The petitioners quoted DGH to allege that only 18 wells against the required 50 had been drilled by RIL, which incurred expenditure of $5,693 million but till March 31, 2011 had recovered $5,258 million.

The petitioners said the petroleum ministry on May 2, 2012 issued a notice to RIL informing it that breach of production sharing contract and failure to comply with the approved plan had resulted in heavy loss of production and sought to disallow $1005 million from cumulative cost incurred by the contractor.

They said the matter went to arbitration with RIL appointing Justice SP Bharucha as its arbitrator and government choosing Justice VN Khare. When they were in the process of appointing the third arbitrator, the petroleum minister gave an interview saying he intended to junk arbitration and push for a negotiated settlement.

The petitioners said the arbitration must proceed expeditiously and be completed within six months. But Salve objected to it saying both arbitrators were eminent retired chief justices of the Supreme Court and nothing should be said which would hurt them and the process of arbitration.
http://timesofindia.indiatimes.com/india/Conspiracy-behind-move-to-double-gas-price-PIL/articleshow/21474395.cms

Justice Ganguly replies to government posers on Pakistan trip

KOLKATA: A state government questioning the human rights commission (HRC) chief, who enjoys pay parity with a high court's chief justice, about his leave of absence is unheard of. But that's the uncommon situation Justice Asok Kumar Ganguly found himself in earlier this week when the Mamata Banerjee government shot off a letter seeking clarifications about his recent trip to Pakistan.

The West Bengal HRC chief, who visited Karachi in the first week of June to attend a two-day seminar, sent his reply to home secretary Basudeb Banerjee on Friday. The seminar on June 4 and 5 was jointly organized by the Pakistan Institute of Labour Education and Research and the Hamdard School of Law in collaboration with the Human Rights Law Network. Besides Justice Ganguly, others invited from India as speakers were lawyers Prashant Bhushan, Mukul Sinha and Colin Gonsalves. Justice Ganguly returned to the city on June 6 and joined office from June 7.

Since he took charge in April 2012, the WBHRC has proactively taken up cases ranging from the cartoon controversy to the Kamduni rape-murder in which the government has been embarrassed. WBHRC sources felt the letter could be a sequel to that.
The home secretary's letter, which was sent on Monday, "requested" Justice Ganguly to answer five questions about his trip: whether it was official or private, what its purpose was, who funded it, whether there was any FCRA (Foreign Contribution Regulation Act) violation and if prior permission was taken from the governor.

Justice Ganguly replied the trip wasn't official but was undertaken on a private invitation from Justice Nasir Alam Zahid, dean of the Hamdard School of Law, and its purpose was to attend a law seminar that covered issues like PILs, human rights and judicial activism. The funding, he said, was done by the organizers. To the poser on FCRA, he replied FCRA is applicable only to sitting judges, not retired ones (Justice Ganguly retired as a Supreme Court judge in February 2012). As for permission, he said since the tour was not an official one, the question of obtaining permission did not arise.

"The government probably cannot tolerate the no-nonsense attitude of the commission chairperson. He has never hit the headlines for the wrong reasons through his career. And this letter from the government was only to embarrass him," said a source in WBHRC.

Under Justice Ganguly, the commission has taken up a number of cases, including the arrests of Jadavpur University professor Ambikesh Mahapatra for forwarding a cartoon lampooning the CM and Shiladitya Chowdhury, the Belpahari resident who was branded a Maoist by the CM at a rally, in which its recommendations put the government in a tight spot. The WBHRC's findings in the Kamduni rape-murder case and SFI leader Sudipto Gupta's death in police custody also raised hackles in the government.

The commission had also taken on Trinamool Congress MP Kakoli Ghosh Dastidar for her comments on the Park Steet rape victim, for which the MP later apologized.

Many feel the government's letter to Ganguly was nothing but a move to keep the upright retired Supreme Court judge under leash. During his tenure as the apex court, Justice Ganguly had delivered significant judgments, including the one in the 2G spectrum scam.

http://articles.timesofindia.indiatimes.com/2013-07-13/kolkata/40553472_1_fcra-justice-ganguly-wbhrc