May 18, 2012

sexual abuse in the US

I have no doubt in my mind that the prevailing laws in the United States are the best in the world when it comes to protecting women against serious forms of crime such as sexual abuse, rape and sexual harrasment at work.

Yet, there are some gaps in their laws currently which are making immigrant women, even though many of them are not legal migrants, extremely vulnerable to sexual abuse. Other countries, including my country, India, has the twin problem of weak laws and lack of enforcement of existing good laws with regard to protection of basic rights of female citizens.

Below is a latest Human Rights Watch report which provides the details on the US case.

US: Sexual Violence, Harassment of Immigrant Farmworkers [1]
Protect Immigrants Through Violence Against Women Act, Other Laws

May 15, 2012

(New York) – Hundreds of thousands of immigrant farmworker women and girls in the United States [4] face a high risk of sexual violence and sexual harassment in their workplaces because US authorities and employers fail to protect them adequately, Human Rights Watch said in a report released today. The current US Senate bill reauthorizing the Violence Against Women Act (VAWA) would go some way toward fixing the problem and should be enacted, but much more needs to be done, Human Rights Watch said.

The 95-page report, “Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the US to Sexual Violence and Sexual Harassment [5],” describes rape, stalking, unwanted touching, exhibitionism, or vulgar and obscene language by supervisors, employers, and others in positions of power. Most farmworkers interviewed said they had experienced such treatment or knew others who had. And most said they had not reported these or other workplace abuses, fearing reprisals. Those who had filed sexual harassment claims or reported sexual assault to the police had done so with the encouragement and assistance of survivor advocates or attorneys in the face of difficult challenges.

A group of farmworkers makes their way across a field, hoeing weeds out of the rows, in the early morning on July 11, 2011.

“Rape, groping, and obscene language by abusive supervisors should not be part of the hard labor conditions that immigrant farmworkers endure while producing the nation’s food,” said Grace Meng [6], researcher in the US Program at Human Rights Watch and author of the report. “Instead of being valued for their contributions, immigrant farmworkers are subject to a dysfunctional immigration system and labor laws that exclude them from basic protections most workers take for granted.”

The report is based on interviews with over 160 farmworkers, attorneys, members of the agricultural industry, service providers, police, and other experts across the country. More than 50 women were interviewed who work with a variety of crops in California, North Carolina, and New York.

Farmworkers described experiences such as the following:

A woman in California reported that a supervisor at a lettuce company raped her and later told her that she “should remember it’s because of him that [she has] this job.”
A woman in New York said that a supervisor, when she picked potatoes and onions, would touch women’s breasts and buttocks. If they tried to resist, he would threaten to call immigration or fire them.
Four women who had worked together packing cauliflower in California said a supervisor would regularly expose himself and make comments like, “[That woman] needs to be fucked!” When they tried to defend one young woman whom he singled out for particular abuse, he fired all of them..

The abusers are well aware of the relative power they have over their victims and so certain groups seem to be particularly vulnerable, Human Rights Watch found. These include girls and young women, recent immigrants, single women, and indigenous women, especially those with limited ability to speak Spanish or English.

“Farmworker women can feel utterly powerless in the face of abusive supervisors or employers, and with good reason,” Meng said. “The abusers often repeat their actions over long periods of time, even after some workers complain.”

Farmworker victims of sexual abuse face significant hurdles to obtaining justice. At least 50 percent of the agricultural workforce consists of unauthorized immigrants, who fear being deported if they complain.

One farmworker told Human Rights Watch that she had been deported while her sexual harassment lawsuit was pending. When another unauthorized immigrant overcame her fear of the police to report her rape to them, her supervisor was arrested. But rather than being charged and prosecuted, he was deported, and she had heard reports that he planned to come back.

Even the small proportion of immigrant farmworkers working with guest worker visas are vulnerable because they are dependent on their employers to remain in legal status, and thus are often just as reluctant to report workplace abuses.

The few victims who do report the abuse face lengthy and difficult legal processes that are sometimes impossible to access for migratory, low-income workers with limited English proficiency. Furthermore, the increased involvement of local law enforcement in immigration enforcement through programs like Secure Communities and state laws like Arizona’s SB 1070 and Alabama’s HB 56 have fueled fears of the police and other governmental authorities in rural immigrant communities.

US law does provide one limited but important protection for some immigrant farmworkers who are survivors of sexual violence, Human Rights Watch said. The U visa provides temporary legal status to victims of certain serious crimes if they have suffered substantial physical or mental abuse and if they cooperate with the investigation. The visa thus encourages unauthorized immigrants to report crimes to the police.

Yet even this limited protection could soon be eviscerated. As Congress debates the reauthorization of the Violence Against Women Act, proposed provisions to strengthen the U visa have come under attack, while some versions of the bill in the House have imposed arbitrary and unreasonable barriers to survivors applying for the U visa.

“Every day that it fails to enact immigration reform, Congress puts more farmworker women at risk for sexual abuse,” Meng said. “The least Congress can do now is to reauthorize VAWA with stronger protections for immigrant women.”

As important as they are, the proposed provisions strengthening the U visa would not overcome all the barriers that farmworkers face to seeking remedies for sexual abuse, Human Rights Watch said. To apply for a U visa the victim must get a certification that he or she cooperated with a law enforcement investigation. But law enforcement officials vary widely in their willingness to certify victims, due to a mistaken belief that they are helping unauthorized immigrants “get green cards.”

Farmworkers are also excluded from basic worker protection laws that apply to nearly every other worker in the US, including prohibitions against child labor and protection of the right to collective bargaining. The laws that do apply are not adequately enforced, and many farmworkers who spoke to Human Rights Watch reported experiencing or witnessing other workplace violations, such as wage theft, pesticide exposure, and child labor. In such an environment, farmworkers are unlikely to have faith in the ability of employers and authorities to rectify abuses, including sexual abuses.

Finally, like other victims of sexual assault in the US, farmworker survivors often encounter law enforcement agencies that do not vigorously investigate complaints.

Both international law and US law recognize that all workers, including unauthorized immigrant workers, are entitled to the same workplace protections as US workers. These provisions exist to minimize employers’ incentives to hire an easily exploitable workforce.

Human Rights Watch urges the US government and employers to take the following key steps to ensure safer working conditions for immigrant farmworkers, including unauthorized workers:

To the United States Congress:

Pass the Senate version of the Violence Against Women Act (VAWA) reauthorization bill (S. 1952) or similar legislation, which would provide specific funding and attention to survivors of sexual assault, including stronger protections for immigrant farmworker women and girls.
Enact immigration legislation that would reduce the incidence of serious abuse of immigrant workers’ rights, including by reforming the existing agricultural guest worker program and creating a program of earned legalization for the unauthorized farmworkers already in the US.
Eliminate the exclusion of farmworkers from important laws providing labor protections like the National Labor Relations Act and the Fair Labor Standards Act.

To US Department of Homeland Security:
Repeal programs such as Secure Communities that require or encourage local police to enforce federal immigration laws.

To police and sheriffs:
Investigate vigorously all complaints by immigrants of sexual violence, regardless of immigration status.
Assure unauthorized immigrants that people who report crimes will not be reported to immigration authorities.

To agricultural employers:
Create and enforce clear policies prohibiting sexual harassment.

May 10, 2012

the heart-wrenching story of murdered teenager aarushi talwar

To me, this entire story is heart-wrenching.

Four years ago, on May 15, 2008 to be precise, a 14-year old teenager girl, Aarushi Talwar, was murdered in her bedroom in her home where she lived with her parents. An elderly servant, working in their home, was also murdered the same night. 

This case is important for many people because the investigating authority, Central Bureau of Investigation (CBI), has accused the parents of their daughter's murder as well as that of the servant and absolved other suspects in the case who were basically employees of the Talwars. 

My personal understanding of the case, after reading reams of written material on the case as well as the contrasting cases made out by two CBI teams, is that the father and the mother are not the murderers. It is very likely that a group of persons involving one or two employees of Talwars are behind the murders. My judgement is not influenced by any class bias (the employees are from non-affluent backgrounds, and generally, many affluent people tend to have a anti-underpriveleged class bias) but purely based on a honest interpretation of all the facts and statements made by all the affected parties in the case.

The parents are on trial in the Indian courts and this trial begins tomorrow. Based on my carefully-arrived-at conclusion that they are innocent, I really pray to our universal energy that the wheels of man-operated justice system moves in their favour and that the real culprits are caught and bought to justice.

I do not subscribe to the thinking that parents can never take the life of a child. In this day and age, anything is possible. But in the case of Aarushi the parents did not take her life. On the contrary, they simply adored their daughter and were not the kind of people who would even in a moment of rage, if any, (as being alleged by those who believe they committed the crime), entertain the ghastly thought of getting violent against their daughter.

I share below an article written by a non-Indian which was published in February 2011 in the Open magazine. I found this article to be quite useful in getting sharp insights in the matter.

Here is the article:

5 February 2011
Worse than a Daughter’s Death
A different view of the Aarushi murder case
BY Patrick French

For more than two years, the Aarushi Talwar case has rarely been out of the news. On 25 January, while petitioning a court in Ghaziabad against the way the CBI was handling the investigation into the murder of his daughter, Dr Rajesh Talwar was attacked by a man with a cleaver. He received serious injuries to his face, cutting a facial artery and nerve. While shielding himself, he also received deep wounds to his hands. The attacker—who has been widely hailed on the Internet as a hero—said he had targeted Dr Talwar ‘for becoming popular, for being featured in the media.’

Given all the things that have been said about the case on television and in the press—with some reports based on completely inaccurate information—it was not surprising that a deranged vigilante should choose to attack Rajesh Talwar. As the Talwars’ lawyer, Rebecca John, told me: ‘I have held the media responsible for creating this atmosphere around the case, and I have appealed for calmer days. Like you, I am involved in this case because I genuinely believe that a grave injustice has been done.’ Dr Talwar has told me in the past that the harassment he was receiving from the media and the CBI was so intense that he did not see how he could carry on. The only thing that kept him going, day by day, was his work as a dental surgeon. Now, his hands are so badly damaged that he may never be able to work again.

Last year, I spent some time with Rajesh Talwar and his wife Nupur, trying to reconstruct what had happened on the night of 15 May 2008. Many people have already made up their mind about this case, and have strong opinions about the guilt or innocence of Aarushi’s parents. Amid all the noise and speculation, I felt the story of the two people who were actually there on the night was being forgotten. This is the story of Aarushi Talwar, written in the context of a wider social shift.

For Rajesh and Nupur Talwar, a middle-class couple who employed a cook and a maid, the lack of knowledge about the people in their home was to destroy their lives—aided and exacerbated by the administrative dystopia of the state of Uttar Pradesh.

Their daughter, Aarushi Talwar, was murdered in her bedroom on the night of 15 May 2008. She was a few days short of her fourteenth birthday, a star student at Delhi Public School in Noida, a talented dancer and a keen reader. She had suffered stab wounds to her head and neck. The story of what happened to Aarushi, as reported by a voracious media over the two days following her death, was presented as a salutary tale for every middle-class Indian parent.

It was presumed her killer was Hemraj Banjade, a Nepali household servant who had drunk most of a bottle of whisky, broken into Aarushi’s bedroom, assaulted and murdered her. He was missing, and a cash reward of Rs20,000 was offered for news leading to his capture. The killing was said to have been done with a khukri, a curved Gurkha knife. In the words of one report, the case was ‘an eye-opener to the vulnerability of Indian homes and the murderous tendencies of the domestic servants’. It listed examples of respectable families who had been attacked by their own staff: a child slain by a driver, an old woman killed by a greedy maid. The moral, according to the author of this article, was that police verification of a new servant’s identity was essential and that ‘domestic servants are exposed to temptation when the dwellers talk of money or jewellery or other financial secrets in their presence.’ The fact Hemraj came from Nepal was an additional lesson, since north India had many Nepalese household workers, and there was a porous border between the two countries.

The Talwars lived in a second-floor apartment in a housing colony populated largely by naval and air force families in the ‘green city’ of Noida, on the outskirts of Delhi. Aarushi’s parents were both successful dentists in their mid-forties, and had met and fallen in love at medical school. Her mother Nupur was an orthodontist, and her father Rajesh was a dental surgeon. Aarushi’s maternal grandparents lived nearby. In the family photographs and video clips that were shown by the media, they appeared to have been a particularly happy unit—the mother, father and only child. As television channels broadcast and rebroadcast their story, the Talwars looked like every family, the one that had suffered the inconceivable fate other families feared. Viewers of the rolling news could watch mother and daughter holding parrots at a bird park, father and daughter playing by a swimming pool, Aarushi dancing with her school friends and flicking her hair shyly when she saw she was being filmed. Her distraught friends set up a page on Facebook: ‘R.I.P. ♥ Aarushi’.

The Talwars were, before their tragedy, the successful family next door. Instead of one of the parents being a popular dentist, they both were. Instead of having a child who did alright at school, they had a pretty daughter who topped 90 per cent in her exams. Their home, Noida (New Okhla Industrial Development Authority), was an aspirational city that had been planned sector by sector for a modern middle-class lifestyle. Noida had a huge mall called The Great India Place, several new metro stations connecting to Delhi, and restaurants like Domino’s and Papa John’s. It was full of children, many of them slipping in and out of tuition centres after school and going gaming at Future Zone, or playing pool or table tennis at the many kids’ clubs.

Aarushi’s body was found by her parents on a Friday morning. ‘Rajesh started shouting and screaming,’ her mother Nupur said later. ‘The maid came and called some neighbours, and the police came. The police were fine then. They were so certain about what had happened that the senior officer said, “It’s an open-and-shut case. The servant has done this. Send a team to the housing colony where the Nepalis live, send a team to the railway station and send a team to Nepal to his village, to see if he’s gone there.” I was senseless, I couldn’t cry or scream. I was inanimate, like a stone. People were in and out of the place: police, neighbours, relatives, onlookers, the media. There must have been a hundred people in our home that morning.’

The next afternoon, a retired police officer who lived nearby came to pay his condolences. In India, after a death, a house will fill with friends, neighbours, acquaintances and family, all come to pay their respects. Diyas—burning wicks floating in bowls of oil—will be set in front of garlanded pictures of the deceased. In this case, the officer appears to have been just plain curious, or ghoulish, since the Talwars did not know him and they were not at the apartment when he visited. He found his training taking over while he was there: he reconstructed the sequence of the crime, and noticed bloody marks in unexpected places. It seemed to him something was wrong. ‘I checked Hemraj’s room and the bathroom and then noticed the bloodstains on the stairs leading to the terrace,’ he said later. ‘When I reached the door, I saw that it was locked and then I broke open the door [with the assistance of the police] and found Hemraj’s body lying in a pool of blood on the floor. He had a slit mark on his throat and many injury marks on his body. His body was severely decomposed.’ Hemraj Banjade, the servant, had been lying dead on the roof terrace in the scorching summer sun for almost two days, and the police had failed to notice.

Once again, reporters and film crews from Delhi were swarming around the property: a faithless servant had become a murder victim, and a tragedy had become a mystery. The country grew riveted by the case. It was a growing media obsession, and everyone became an expert, with their own explanation of the double homicide. Endless theories were constructed as to what might have happened. Since there was no sign of forced entry, the presumption was that Hemraj had known his killer or killers. There seemed two likely explanations. The first was that Hemraj had been trying to protect Aarushi, and been killed for his pains. The second was that Aarushi had seen somebody attacking Hemraj, and been killed as a witness.

The pressure on the Noida police to solve the case was intense. They had to find the murderer, and fast. Their failure to investigate or even to secure the crime scene the previous day was a shocking demonstration of incompetence. It became known the police had allowed the media and even passers-by to enter the Talwars’ apartment after Aarushi’s body was found. All forensic evidence had been compromised or destroyed, leaving them with no leads. They were assailed by questions: Why had they not bothered to check the terrace? How could they have bungled so badly? Two years earlier, the Noida police had been in the news for failing to detect a serial killer who was murdering children, and now they needed to get a quick result if senior officers were to avoid a transfer to some obscure rural posting. Although the city was next to Delhi, it fell in the jurisdiction of Uttar Pradesh, where police had a reputation for being criminals in uniform who did nothing unless they were paid a bribe.

Under pressure from above, poorly trained and badly paid officers fell back on methods they could get away with in Mau or Kanpur, and applied them in Noida. Their investigation was haphazard, absurd and defamatory, targeting those who were closest to the murder scene. They informed the press now that the killing of both victims had been done not with a khukri or a knife, but with ‘a sharp-edged surgical instrument’, suggesting it might be the handiwork of a medical professional. Next, a police officer went on the record: ‘The way in which the throat of Aarushi was cut points out that it is the work of some professional who could be a doctor or a butcher.’ The family were unaware of this statement, and its implication.

‘I had banned TV from our house by this time,’ Nupur said bitterly two years later. ‘Whenever we turned it on, there was always news about the murder. So I hid the remote. Then the mother of Aarushi’s close friend Fiza, who had a contact at NDTV, warned me the police were saying they were suspicious we were involved in the killing, and were gunning for us. I took no notice, and I was quite angry and upset with Fiza’s mother. The police had told us not to talk to the media, so we didn’t. Then the same police officer who had said this to us, the SSP [Senior Superintendent of Police], gave a press conference saying they were looking at the family.’

Nupur’s husband, Rajesh Talwar, was now the prime suspect. I had been Dr Talwar’s patient, and had sat in his dentist’s chair. I knew him only as a bearded, avuncular man who had gentle hands, even when he was probing your molars.

‘I had lost my beloved child, so why were they doing this to me?’ he asked. ‘The cops thought we were an “immoral” family because Aarushi made 300 calls a month to her friends and went on Orkut and Facebook. These people are backward. They are not fit to do their job. They said I did an honour killing because she was having an inter-caste relationship with the servant. My wife and I had an inter-community marriage, so how on earth would I think of doing what they call an honour killing? I told them Aarushi was reading two books, Shantaram and Chetan Bhagat’s 3 Mistakes of My Life. So the police say, “Hah, you’re saying she was reading this book because she has made three mistakes in her life? What are the three mistakes?” She had joined the “I Decide” club at school, and the last project she did was on addiction—in fact she won the first prize for her effort, but was not there to see it. She had looked up addiction on the internet, so the Noida police then say on television: “We think there was some addiction in the family. She may have had a drug addiction, or she may have thought members of her family needed help with it.” I told them, go to her school and look at her project or talk to her teachers. I wondered if this was my destiny, and if the universe was conspiring against me, or if I had been caught in a whirlpool.’

We were in the sitting-room of the Talwars’ apartment in south Delhi. It was nearly two years since Aarushi’s murder. They had left Noida and moved back to the building they had lived in during the first few months of her life, when she was a baby. She was all around us, in blown-up photographs on the wall, in the crystal ornaments on a low table, in their memories. Her bedroom had been faithfully reconstructed in the new home with her clothes, desk, cushions and toys. Propped up on her bed was her favourite stuffed Bart Simpson, which she liked to have beside her at night. They had the mementoes: the photos of Aarushi growing up, as a little girl, as a teenager with kohl around her eyes sitting in the back of a car with her school friends. They had the cards, the one saying: ‘MOM … L.O.V.E you 4ever!’ and the one saying: ‘Dad u r da bestest dad any1 can have. U rok ma world.’

‘For her birthday weekend,’ said her mother, ‘we’d planned a sleepover for four-five girls on the Saturday night.’ Dr Talwar was a nice-looking woman whose face was marked by deep shadows beneath her eyes. She wore a silver kameez over black trousers, and her watch was turned to her inner wrist. ‘The CBI say to me, “What is a sleepover? Were there adults involved?” I had to explain what a sleepover was—chatting, music, raiding the fridge while we stay in the next room. I explained that the kids would say, “Go from here”, in the way kids do, and again the police were saying to me, “Why would you have to go, why would your daughter not want you there?” They wanted to know why Aarushi had deleted some of the pictures on her new camera. “Who has deleted these images? Why has she done this?” I had to explain, that is just how kids are, they take some pictures of themselves, they delete the ones they don’t like.’

‘They found an email she had sent me a year before,’ said her father, ‘apologizing and saying she had just wanted to try out something with her friends. So the police take it and flash it on TV. All the channels are asking, “What was Aarushi going to try out? Why did she say it wouldn’t happen again? Why does a daughter send an email to a father?” Well, she didn’t send emails to me, it just happened one evening when she was twelve years old, and Aarushi wanted to go to the cinema in the mall to watch Namaste London with a group of friends—just the girls together. We didn’t want her going without an adult, but in the end we gave our consent and dropped her off and collected her from the cinema. It was peer pressure that made us agree, because her friends were allowed to go. Aarushi knew we weren’t happy about it and that’s why she sent me the email. She had a very sensitive nature. Not even once did I have to raise my voice to her. If there had been an occasion, I would have raised it.

‘It was no issue if we had a boy or a girl,’ he continued, referring to the social pressure in the north of India to have male children. ‘From a young age Aarushi wanted to be a “baby’s doctor”—she said that before she knew the word paediatrician. She loved babies. Her friends told her she was being a geek, studying too hard. I put money aside as an investment, put it into a flat and told her this is not for your marriage, it’s for your studies. She would tell family: “Don’t worry, I’ll get into AIIMS, but Dad has kept this for my education.”’

‘She was good from the first standard,’ said Nupur. ‘At her school, if you get above 85 per cent for three years consecutively, you get a blue blazer. Only one or two children get it each year. There was no question of Aarushi not getting a blue blazer. She was fond of dancing. She went every Sunday with other girls to a class at Danceworx studio in Noida, and danced for hours, learning Ashley Lobo jazz dancing. She and her friends made a dance group, and called themselves the Awesome Foursome.’ Nupur showed me a photograph of the girls on which Aarushi had written: ‘AWESUM 4SUM!’

We sat in silence together. ‘Aarushi was an avid reader too, always reading, her iPod headphones stuffed in her ears, and texting as well, sending messages on Orkut at the same time.’ Rajesh stood up and went to Aarushi’s bedroom, and brought back some of his daughter’s books to show me: Anne Frank’s The Diary of a Young Girl, Chetan Bhagat’s Five Point Someone, Khaled Hosseini’s A Thousand Splendid Suns, Jean Sasson’s Love in a Torn Land, JK Rowling’s Harry Potter and the Half-Blood Prince, Jhumpa Lahiri’s Unaccustomed Earth—sophisticated books for a girl of her age. ‘She preferred Anne Frank,’ he said. ‘She didn’t like fantasy so much.’

‘I can’t listen to songs or watch movies any more,’ said her mother. ‘I never watched a movie without Aarushi. Our life has been taken away from us.’

‘When she was small,’ said her father, ‘she used to clutch a sari which belonged to my mother. She had picked it from a collection of my mother’s saris which Nupur had, and went to sleep with it. In fact she went with it everywhere and used to call it her “papamummy”. By the time she outgrew it, it was completely in tatters.’

Rajesh and Nupur Talwar had been raised in an older India. She was from an air force family and had lived in military housing wherever her father was posted. Rajesh’s father was a cardiothoracic surgeon. ‘When we both finished the Bachelor of Dental Surgery course in Maulana Azad Medical College,’ he said, ‘we married and went to Lucknow for our postgraduate. We both came from liberal families, and they had no hesitation about our marriage. At our wedding we had one Punjabi pandit and one Maharashtrian pandit, and because we [Punjabis] like to get married early in the morning and they like to marry in the evening, we did it in the middle of the day. We waited a bit for children because we were studying, and had Aarushi on 24 May 1994. We only had one child, because we wanted to be able to give her the best possible.’

‘Initially Rajesh was a bit of a weekend father,’ said Nupur. ‘By the time he got back from work, Aarushi was asleep. We thought it would be better for her if she grew up near her grandparents, where we would have a support system, which is why we moved to Noida. My mother brought her up. She always did her cooking and cared for her with her own hand. Even at weekends, Aarushi would ask to see her grandparents—“Ajja [a diminutive of ajji, the Marathi word for mother’s mother] isn’t feeling well, let’s go to see her.” When Aarushi’s life ended, she was in a stage of transition. It was all about friends, friends, who had fallen out, who had broken up with someone else, breakup-patchup.’

‘On the 15th,’ said Rajesh, ‘I had bought her a Sony 10 megapixel camera for her birthday. It was better than the one she was expecting. I showed it to Nupur and she said let’s give it to her now. We went to Aarushi’s room. She was so happy, clicking some pictures of herself, trying out the camera. That was our last evening together.’

‘I heard the doorbell ring in the morning,’ said Nupur. ‘It rang a second time. I knew it was the maid, and wondered why the servant hadn’t opened the door for her. It was a little while after six o’clock. I got up, and realized the door of the flat had been locked from the outside. So I phoned the servant, and the call was cut. I phoned again, and it was cut. By this time Rajesh had got up and noticed a three-quarters empty bottle of whisky lying on the dining-table. We got worried as we always kept alcohol in the cupboard. He said, “Go and see Aarushi.” I went into her room just ahead of Rajesh. The first thing I saw was the blood on the wall behind her. She was lying on the bed covered with a blanket. I put my hand on her head. Rajesh began to scream.’

‘Later in the day, I had to write the FIR in Hindi,’ said Rajesh, ‘and I hadn’t written the language for twenty years. I just couldn’t write it. The principal of Aarushi’s school had come to see us. She used to be my own class teacher when I was a boy at another branch of Delhi Public School, and in my mind I was saying, “Ma’am, get her back. Ma’am, get her back.” I didn’t say it out loud.’

‘At about 1 pm they brought back Aarushi from the autopsy,’ said Nupur. ‘We put her in the drawing-room. It was a hot day. At about 4 p.m. we took her for the cremation. When we got back home from that, the police were there and the media had broken our doorbell. They kept on trying to push the door open. I couldn’t sleep or eat.’

‘I thought it was Hemraj and he was on the run,’ remembered Rajesh. ‘I said, I hope they get this guy and kill him. The next day we collected her ashes from the cremation ground early and drove to Hardwar to immerse the ashes in the Ganges. While we were driving, Hemraj was found on the terrace. We were asked to come home and identify him. We parked the car a few blocks away, since according to Hindu custom you should not take ashes into the home. Nupur waited in the car with Aarushi’s ashes while I went back in. They asked me to identify the servant’s body. It had been decomposing for two days in the heat and the face was swollen. I couldn’t be sure, but I said I think it looks like him. Later, the police said I had refused to ID him positively, and used that against me. We went to Hardwar and did the religious rituals, fed some poor people and had a bath in the Ganges, like you are meant to do.’

‘Hemraj liked cooking and doing things around the home,’ said Nupur. ‘He was not an ambitious Nepali. He would call her “Aarushi Baby” and she would call him “Bhaiyya”. We would give him her old clothes for his grandchildren. He’d been with us for eight months, and had been highly recommended by the previous fellow, who had been with us for ten years. I know now that Hemraj let some people into our home, and I ask why, why, why? It was a case of trusting too much. Obviously the company he kept was not good. We realized later he had lied to us—he said he had been doing a job in construction in Malaysia, but he had never been there, and was a rickshaw driver. But we trusted the servant who recommended him, so we didn’t check.

‘On the next day, which would have been the day of Aarushi’s sleepover, we had a puja and a havan, the lighting of a sacred fire. Her friends came to the house and they all sat in her room, touching her things. We served them food in the room. They took out her clothes and her books and were looking at them, all crying, grieving.’

The police now asked the Talwars to come with them to identify a suspect. They found a Maruti Zen car waiting outside the gate of their apartment, so they got in their own car and followed it, as instructed, pursued by a flock of media vehicles. The couple drove behind the police Maruti Zen at high speed for about four kilometres before being told to go home again. When Rajesh Talwar was taken to the police lines the next day, one of the pieces of evidence offered against him was video footage of this car chase—proof that he intended to flee, and should be denied bail when he was arrested. Another cause for suspicion was that in his pocket he had the business card of one of his patients, Pinaki Misra, a Supreme Court lawyer. [Full disclosure: Pinaki Misra is my wife’s uncle.] If he were innocent, asked an investigator, why would he need to be in touch with a hotshot lawyer?

By this time, Nupur and Rajesh had been separated into different rooms. She received a telephone call from a family member to say that television channels were reporting that her husband had been arrested. At first she could not believe it was true, and reassured the caller that he was only having a conversation in the next room. Then, after some hours had gone by, the constable who was guarding her said, ‘Arrest ho gaye’ (He’s been arrested). Rajesh, meanwhile, was manhandled into a car and driven to Ghaziabad, an industrial city in Uttar Pradesh, to be remanded in judicial custody.

‘We were driving along,’ he recalled, ‘and the driver started abusing me. “You’re the bastard who did this.” I was really scared. I said, “You can’t say things like that.” They gagged my mouth. I was abused by these policemen the entire way, and after reaching the shabby courtroom, two of them held my hands and dragged me to a room by the side of the court. I was presented before the magistrate. There were a huge number of people present, and I pleaded with this man to at least let me make a phone call or call a lawyer. I said, “I’m entitled to it. It’s my fundamental right as a citizen of this country.” The magistrate just looked at me in disgust. “Ja yahan se” (Get out of here). They’d chosen Friday to arrest me, because we wouldn’t be able to apply for bail until Monday. The policemen produced a paper and asked me to sign it, and I had the presence of mind to tell them I will not sign anything. They threatened me with dire consequences. I was dragged back to the car by the police while I kept screaming that I was being framed. By this time the TV channels were all over the place. My mind had gone completely numb. A policeman was saying, “Hum tere ko maar denge” – “We will kill you.” I just said they could kill me wherever they wanted.

‘We reached Dasna jail. It’s a different world in that place. Time just stopped. I was told to sit in a line on the floor. They frisked me with aggression. There are thieves, drug addicts, all spitting on the floor. I was crying. I was sent to barrack number 7, bed number 60. But there’s no bed, only a stone floor. It’s a big, noisy room, filled with half-naked people, with hardly enough room to move. You get watery daal and chapati. I was given a sheet and it was stinking, but you have to put it over your face to keep the mosquitoes and flies off you at night. I kept thinking that someone would come and say, “Sorry, we made a mistake.” When I went to the toilet, I slipped a bit and realised there was no toilet, just a layer of shit on the floor. I puked there.’

Rajesh stopped speaking. Nupur was looking at him. It was the first time he had ever told his wife about this aspect of his incarceration. All through the Saturday and the Sunday, Nupur had waited outside Dasna jail to see her husband, together with Rajesh’s brother Dinesh, an ophthalmologist at AIIMS.

‘I managed to see him on Sunday,’ said Nupur. ‘It was the day after Aarushi’s birthday. He was banging his head on the bars, shouting, “Get me out of here.” He was crying all the time, saying, “Where’s my Aaru, where’s my Aaru?” It was a forty-minute meeting. During the day, we got a call on someone’s cellphone. A man said to meet him in the dhaba by the prison. He explained he would be able to provide food and good treatment for Rajesh in jail. I gave him Rs 25,000. We never saw him again. Later we heard about another person who could provide this service for him, a convict who was trusted by the jail administration. These men are called numberdars, and they wear a yellow kurta pyjama. So we slipped him money.’

‘Without him, I couldn’t have survived in there,’ said Rajesh. ‘He showed me kindness, got me some mosquito repellent and some fruit. Before Aarushi died, I had been reading a book about Iraq which described what happened in their prisons. I remember thinking at the time, at least that couldn’t happen in our country, in India.’

Dr Talwar was to be dragged through a netherworld of courts, jails, lies, insinuation and state harassment. The process would last not for days, but for years, and the second Dr Talwar—Nupur, Aarushi’s mother—would be drawn into the cavalcade too, harassed alongside her husband as both he and their murdered daughter were accused of various retrospective offences. At a bizarre press conference, an inspector general of police from Meerut stood in front of the cameras and said Rajesh Talwar was ‘prime accused’. He was apparently in a relationship with a fellow dentist and family friend, and had committed an honour killing. ‘The doctor’s extramarital affair was known to both the girl and Hemraj. The two used to discuss this and had come close. Dr Rajesh could not tolerate this even though his own character was not good,’ the officer announced in Hindi. It sounded like a story from one of the badly printed ‘shocker’ magazines on sale at street corners, like Crime & Detective with its lurid headlines: ‘Acid Treatment for Malady of Love’ or ‘Queen of Nefarious Designs’. ‘Dr Rajesh came home,’ the inspector general continued, ‘and found his daughter and Hemraj in an objectionable position—but not in a compromising position. Dr Rajesh took Hemraj to the terrace and killed him. He then drank whisky and killed Aarushi… He killed her in a fit of rage even though he is as characterless as his daughter.’

The police had no basis for the character assassination of a dead thirteen-year-old girl and her grieving father. They had no witnesses, no murder weapon, no forensic evidence and no reason for deducing that Aarushi had been in an ‘objectionable position’ with a recently hired servant who was himself a grandfather. Nor did they have a plausible motive for this savage double murder. For much of the media, in particular the English-language tabloids and Hindi news channels, this was less important than the sensation. Repeatedly, they showed footage of a dishevelled Rajesh Talwar shouting: ‘They’re framing me!’ as he was dragged roughly through the gate of a jail. When Nupur, glazed and dazed, gave a television interview the following day, people complained she was not in tears. As a viewer wrote on a message board: ‘The reporter looks much sad then Aarushis mother.’ Then there was the email message Aarushi had sent to her father, which the police released: ‘I just wanted to try it out coz I heard from mah frndz… so wotz da harm… I wnt do it again n I kinda noe hw u r feelin.’ What did it mean? And could her parents, who were in the next room with a whirring air-conditioner on, have slept through the killing?

More ‘proof’ arrived when the police claimed the Talwars were part of a ‘wife-swapping racket’ run by a ‘kingpin industrialist’ in Noida. A newspaper, Mid-Day, quoted an unnamed police officer saying that ‘whenever such meetings happened the Talwars kept Aarushi locked inside her room. “That happened only when the members of the club met at Talwar’s residence. But Hemraj knew everything and shared the details with Aarushi.”’ The newspapers reported these stories, although no evidence was given to support the claims. Old-fashioned extortion had landed at the edge of the capital, in a modern world of shiny malls, where middle-class children lived a very different life to the children of the police. The inhabitants of Noida might feel as if they were in Delhi, and could lead a progressive, metropolitan life, but they faced Uttar Pradesh street justice, in which nobody was protected from wrong. Taking shreds of evidence and gossip, and making assumptions about a social world they were not able to comprehend, the police had concocted a story in the hope they could close the case. They nearly succeeded. Much of the media ran with the idea that Rajesh Talwar must be guilty, and blogs and websites were filled with foul insinuations. To quote just one: ‘This is a simple case of sexual perversion, maybe incest, and pedophilia that got integrated with a culture of swinging between families and swapping. Matter of family honour thus comes first and foremost.’

The police interrogations continued, as did the Kafkaesque form of investigation.

‘You never knew where you were with the police,’ said Dr Talwar. ‘Some were fine. A policeman read the Hanuman Chalisa and started to cry, saying, “Doctor, a very bad thing has been done to you.” Another time, they took me back to Hardwar in a Jeep and I was troubled the whole way by two young policemen. The vicious guy who had threatened to kill me was singing as if he was going on vacation. They forced me to sign a confession. I wrote on the piece of paper in English—which they couldn’t read—that it was not true. I was in the prison for fifty days and nights. The numberdar in the yellow pyjama helped me. He would arrange for my clothes to be washed, and would send a boy called Goli to make nimbu pani for me. Goli had been in and out of prison all his life, for small thefts, and so on. Apparently he would be picked up by the police whenever they needed a suspect for some crime. I found it hard to talk to most of the prisoners because they were from a very different social group to me. Some would come and say, “I hear you’re a tooth doctor.” So I started seeing patients in the prison hospital. I arranged for proper medicines, antibiotics, painkillers to be brought in. I found a broken dental chair, and fixed the compressor on it. I succeeded in getting a mirror, a probe, tweezers, a handpiece. I had hoped to get zinc oxide eugenol, to do temporary fillings for the prisoners. The prison authorities were very grateful. I would like to go back and do more work there now, but it would be impossible, with the media.’

During these days, Nupur stayed at her parents’ house. She did not return to the apartment. She endured what her husband endured, not knowing if he would be released. ‘Grieving for Aarushi took a back seat, because I was running from pillar to post the whole time. I didn’t turn on the AC the whole time Rajesh was in prison, because I couldn’t bear to think of him being in that heat, lying on the floor. All the time was spent going to lawyers, going to courts, trying to set him free. I felt I was losing my sanity and I wanted to kill myself, to go away from this world, but I knew I had to keep strong for him. Over the weeks, people melted away. On the day he was arrested, Fortis Hospital, where he was working, threw him out. A lot of our dentist friends didn’t want to know once Rajesh was in jail. People don’t like to come close to a tragedy. I would sit alone. I only cried for Aarushi when her father came home.’

Although they felt abandoned, Rajesh and Nupur Talwar were also aided by a public outcry by their own and Aarushi’s friends. Several hundred children from Delhi Public School in Noida took out a march with banners saying: ‘Justice for Aarushi’, lit candles in her memory and condemned the police for maligning their fellow student. National child protection charities and even a cabinet minister spoke out against the defamation of the dead girl and her father. Nobody spoke for Hemraj, the dead servant; he became just another crime statistic. Patients at Rajesh’s practice gave their support, including a high-ranking Delhi policeman, BK Gupta, and the lawyer Pinaki Misra, whose card had been found in his pocket. Misra pressed for the case to be transferred away from the Uttar Pradesh police to the federal Central Bureau of Investigation. Once the chief minister, Mayawati, agreed to this demand, the prospects for Dr Talwar’s release grew and the chances of evidence being fabricated were reduced. It would not have been hard for the police to give the suspect an object and ‘discover’ it a few days later as a murder weapon, covered in his fingerprints.

Rajesh Talwar was eventually released on bail, but the investigation was far from over. By now the police had arrested three more men, including a compounder or dental assistant named Krishna who worked at his clinic, and whose family came from Nepal. Over the succeeding months and years, the harrowing of Dr Talwar continued as he was subjected to polygraph tests and narcoanalysis (the drugging and interrogation of a suspect, which is illegal in many countries). The investigators continued to come up with outlandish stories, destroying his name, which were happily repeated by the media with scarcely a murmur of dissent. One improbable report suggested he had somehow ordered medical staff to destroy evidence following Aarushi’s autopsy, another that Nupur was now the principal suspect and would shortly be arrested. Next it was claimed that Rajesh’s brother was also involved, as was the passing policeman who had found Hemraj’s body on the terrace.

‘I was released on 11 July 2008,’ said Rajesh Talwar. ‘Before my court appearance, I was put in a prison van with the other three accused.’ He was referring to Krishna and the young men who were detained with him, who worked locally as domestic servants. At this point, Rajesh had no way of knowing whether they were guilty or were being framed too. But their behaviour made him believe the worst. ‘Krishna didn’t say anything at all to me. He had no reaction. This man had worked as my own dental assistant. He looked as if he was relaxed. One of the others pointed at him and made a sign with his hands, as if to say, “It wasn’t me who did it—it was Krishna.” I panicked. I was in the police van, knowing this man might have done this thing to my child. They handcuffed me with Krishna. I was begging them to not do it, but they said they had only one handcuff. They removed the handcuffs when we reached the court. The heat was terrible. When I was attached to Krishna, I was literally begging, I was saying, “This man has killed my child.” The policeman said, “I don’t have another handcuff.” That was the worst moment I have ever had. I felt I was dying. I was taken back to Dasna jail from the court and released the next day. When I came out of the jail, the media surrounded me completely. My brother and my wife had to pull me into the car. We went straight to the Shirdi Sai Baba temple, and prayed.

‘You have rights as a citizen of India,’ he said, speaking calmly but passionately, ‘but in certain places like UP and Bihar, unless you are a politician or a very rich person, you have no protection at all. We have suffered at the hands of the institutions that are there to protect you. We thought India was a good place to live, but there is so much of incompetence everywhere that people don’t know what they are doing.’

Rajesh was shown the results of the narcoanalysis tests done on the three men. They contained incriminating information, some of which was corroborated independently. To date, no one has been charged with the murder of Aarushi Talwar.

‘Each day,’ said Nupur, ‘you wake up and you think, oh no, I’ve got another day to go through. We never did anything wrong. No police and media have admitted they were mistaken. If I go somewhere, everyone will stare at me. You can see people recognizing us, and spreading the word. I go only to two or three shops, where they know us. Our work is the only thing that has kept us going. The people we saw as a social group when Aarushi was alive—how do you talk to them? When the three girls from the Awesome Foursome came round, I couldn’t communicate. I feel jealous that something so special has been taken away from us. Our support now is mainly from people who have also lost children. I’m an orthodontist, so when a child gets up from the chair, I see her hairstyle, her shoes, and think—would Aarushi be this tall, this thin now? Her friends are still my patients. She used to say to me: “Mummy, my friends are coming for braces. Don’t charge any money.” So I don’t charge them. We have had two lives in one lifetime.’

‘We miss her so much,’ said Rajesh, ‘that we just don’t know what to do.’

(An excerpt from India: A Portrait by Patrick French)

May 03, 2012

good impact of india's new tax avoidance rule

A little over a month back I was asked to write an editorial (in the newspaper I work for) on Indian direct tax system's new General Anti-Avoidance Rule. With the help of the very useful insights provided by my much-senior colleague, I came up with the following:

GAAR & the Mauritius route

No tears will be shed if the Mauritius route is closed for those investors who not being genuine residents of that country are using it only for tax mitigation purposes just because it is legally possible for them to do so. True, the general anti-avoidance rule (GAAR) for direct taxes, which can make this happen, is being sought to be implemented earlier than the entire Direct Tax Code of which it has been an important part for the past few years. But any progressive measure is welcome, even if it comes a tad earlier than some others.

India has double taxation avoidance (DTA) treaties with over 70 countries, including Mauritius. The foreign portfolio investments and foreign direct investments coming into the country from Mauritius is certainly not small. The intention of any DTA treaty between two countries, whose businesses trade with each other, is that no income should be taxed twice and not that it is tax-free or taxed at unrealistic low rates. But some countries inevitably get tempted to structure their laws such that they become tax havens for companies operating elsewhere.

But India is not a tax haven to encourage such practices by any such country. Tax havens do not attract investments in their own economies, otherwise the Mauritian stock exchange would be much larger than the Indian stock market. The benefits of a DTA treaty should accrue to genuine domestic businesses. If non-domestic businesses operating in a country counterparty in a DTA treaty which India has signed up it is a violation of the core principles and ethics behind a DTA treaty.

It is not that foreign investors or global businesses want to evade the payment of tax on their income but in planning for their taxes (a legitimate act any tax payer in the world has the right to perform) they scan the globe for structures which enable them to pay the lowest taxes. Their search ends at countries which serve as tax havens.

Mauritius, for instance, offers very attractive term for global businesses and investors to seek a domestic corporate registration even if little or no activity of that business or investor would take place in the domestic economy. The maximum income tax on declared income is just 3 per cent. The DTA treaty between Mauritius and India is the first reason why global companies wanting to invest in Indian assets would want to consider routing their investments through Mauritius.

India also has DTA treaties with those very countries which are the real home countries of the Mauritius-based global companies. If Mauritius did not offer them a way to obtain residency permits and avail of the India-Mauritius DTA treaty benefits then they would stay in their home countries, invest in India and avail of whatever benefits DTA treaties between their home countries and India offered.

Mauritius has not been amenable to repeated Indian government efforts, in the past decade, to stop the misuse of residency permits given to businesses that are not truly domestic. If the GAAR provisions are able to plug the loopholes that tax havens such as Mauritius offer then it will serve a great purpose which India has been struggling to achieve for the past one decade.

The India-Mauritius DTA treaty took place in mid-1980s when there were geo-strategic reasons for the Indian establishment to overlook the possibility of Mauritius becoming a tax haven. Today, India is in a position to be unafraid to face any geo-political consequences. Using the GAAR fearlessly, therefore, will be a welcome step in that direction.

May 02, 2012

financials of clearing corporations of nse & bse

I share below a story on the financial health of the clearing corporations of National Stock Exchange of India and Bombay Stock Exchange which I wrote, recently, for the newspaper I work for.

NSE’s clearing subsidiary earned net profit of Rs 238 crore in FY11
Sebi’s new norms will require stock exchanges to divest at least 49 per cent in their 100 per cent subsidiaries

Like the stock exchange, National Stock Exchange of India (NSE), it does all risk management, clearing and settlement activities for, the National Securities Clearing Corporation (NSCCL) is the largest in the country not just in terms of scale of operations but also in its revenue-earning ability and profitability.

This is likely to fetch the clearing corporation a high valuation when the NSE, which owns 100 per cent equity capital of NSCCL, begins to comply with the new Securities and Exchange Board of India (Sebi) policy on market infrastructure institutions (MII) which prohibits a stock exchange from holding more than 51 per cent in a clearing corporation. As per the MII policy terms, NSCCL has three years to comply with the 51 per cent norm.

On the other hand, BSE’s 100 per cent subsidiary, Indian Clearing Corporation (ICCL), had not yet begun carrying out clearing corporation functions for BSE’s equity cash and equity derivatives segments, although the new Sebi policy for MIIs will make itcompulsory for BSE to get its trades in these two segments cleared and settled by an independent clearing corporation.

FC Research Bureau learns from NSCCL’s statutory filings it had a total income of Rs 377 crore in financial year 2010-11 (FY11), up from FY10’s total income of Rs 345 crore. Its net profit in FY11 was Rs 238 crore, more than Rs 226 crore in FY10. These represented decent financials given that they were not too far from its parent  NSE’s total income and net profit in FY11 of Rs 1,378 crore and Rs 637 crore respectively.

More signficant, however, was the accumulated un-appropriated profit figure of Rs 105 crore that NSCCL carried to its balance sheet, at the end of FY11, after appropriating Rs 130 crore towards general reserve, Rs 90 crore towards equity dividend and Rs 14 crore towards equity dividend distribution tax. The accumulated general reserve at the end of FY11 was Rs 891 crore while the paid-up equity capital was Rs 45 crore.

Starting with equity cash segment of NSE in April 1996, NSCCL current clears and settles trades NSE’s equity cash, equity derivatives, currency derivatives and retail debt segments. It also provides a legal guarantee of the settlements on these segments.

NSCCL receives clearing and settlement charges from NSE for all this. In FY11, of NSCCL’s gross revenue of Rs 377 crore, Rs 120 crore was by way of clearing and settlement charges paid by NSE, Rs 205 crore was in the form of income from investments and Rs 27 crore were other receipts which included Rs 20 crore worth of fines and penalities collected from NSE’s clearing members.

NSCCL’s income from investment included income it earned from investment of funds from accumulated cash reserves, accumulated un-appropriated cash profit and the cash component of settlement guarantee fund (SGF). NSCCL is empowered to collect cash and non-cash deposits from NSE’s clearing members to run the SGF. At the end of FY11, NSCCL had a total SGF of Rs 35,717 crore across its four segments of equity cash (Rs 5,100 crore), equity derivatives (Rs 29,760 crore), currency derivatives (Rs 853 crore) and retail debt (Rs 3 crore). Of this, the cash component was Rs 1,407 crore and non-cashcomponent was Rs 34,310 crore comprising of fixed deposit receipts, bank guarantees and securities.

Set up in April 2007, ICCL, BSE’s clearing corporation, had a gross revenue of Rs 4.9 crore and a net profit of Rs 2.3 core in FY11, as per its statutory filings gleaned by FCRB. These muted financials were on account of ICCL clearing and settling trades of only the corporate bond and mutual fund segments of BSE and also the currency derivativessegment of the United Stock Exchange of India in which BSE is a partner. At the end of FY11, ICCL had a paid-up equity capital of Rs 50 crore and reserves plus of just Rs 3.3 crore.