Saturday, May 23, 2009

Sikh Refugees


Sikh Refugees

The conflict between the Pakistan Armed Forces and the Taliban militia has escalated leading to mass displacement of persons. Tens and thousands of people are fleeing the conflict zone. Many displaced Sikhs (around 1200) have taken shelter in a Gurudwara in Punjab (Pakistan).

We urge:

(i) India should ensure that Pakistan provides relief and rehabilitation package to the displaced Sikhs in a manner consistent with their dignity.

(ii) India should allow displaced Sikhs access to the Indian territory.

(iii) The displaced Sikhs should be recognised as refugees by the UNHCR, India and Pakistan.

(iv) India should establish a special Committee to monitor the Sikh refugee-situation in Pakistan and ensure relief and rehabilitation.

For further discussions/comments contact PILSARC at:

Learning from 2009!


Rajeev Dhavan

Indian elections 2009 are over. Many lessons are to be learnt from this elections even if some are euphoric in victory and others dejected by defeat.

(i) Let us begin with party democracy. After I had argued for George Fernandez in the JD-Split case, TN Seshan ordered strict adherence to party constitutions, which are placed before the Election Commission under Section 29 of the Representation of People Act 1951 (RPA), including membership rolls, regular elections, annual meetings, proper candidate selection and resurrecting party democracy. Sanjay Gandhi subverted Indian politics by bringing in goondas and ruffians as rank and file party workers, who fought elections for future favours as local power brokers. Rahul wants a more genuine mobilization of youth. Party democracy should be put in the legal framework of a party constitution, which should be insistently followed. Party democracy is the gateway to real democracy from top to bottom.

(ii) Criminality haunts Indian politics. All parties adopt criminals as candidates. Legally, convicted criminals for disqualificatory serious crimes, socio-economic corruption and offences cannot stand for elections. This was breached in Navjot Sidhu’s case (2007), when conviction and sentence were stayed by the Supreme Court. This time round, both in Pappu Yadav’s case and, more significantly, by Chief Justice Balakrishnan in the Sanjay Dutt case (2009), this breach was half-plugged, theoretical room being left for exceptions. The problem persists. In 2009, 150 newly elected MPs have criminal cases pending against them (compared to 128 MPs in 2004). Amongst these, 72 are charged with serious offences. Overall, BJP’s tally was 42 and Congress’s 41, with 17 and 12 respectively facing serious offences. Criminality is writ all over our elections. Prominently, Lalu Yadav is undergoing a slow trial. Ravi Dhavan, J.’s solution in the Patna High Court (2004) was that if people in jail cannot vote [Section 62(5) RPA] they cannot stand for elections – extending this to those on bail. This logic was not accepted by the Supreme Court which had no answers of its own. But Justice Jeewan Reddy (as Chairman Law Commission) proposed that while it would be too early to disqualify a person when an FIR or challan is filed and too late to wait for a conviction, a legal disqualification should be imposed as soon as a court frames charges. This would avoid fictitious imputations of criminality and weed out those who are being tried or are awaiting trial for disqualificatory offences. This one change in the law is necessary. So far political parties have run away from a clear position on this. Its time for change.

(iii) Till this change is made, responsible political parties should make it clear that the criminally charged or tainted will not be set up candidates (e.g. Congress’s removal of Tytler and Sajjan Kumar under public pressure). Not just PM Manmohan Singh, but his MPs must also be clean.

(iv) The EC has done a commendable job of managing a difficult election amidst public controversy within the EC, but what are the Election Commission’s real powers? The Constitution gives them an independent right of “superintendence, direction and control of elections” (Article 324). The Union and State legislatures have the power to make laws “subject to the provisions of the Constitution”. Arguably, Parliament cannot undermine the EC’s constitutional powers. The Supreme Court’s case law swings in both directions in the Voting Machine and other cases. The ultimate power of the EC is to postpone an election but that is usually limited to when voting takes place or becomes impossible. The Code of Conduct must be rooted in some law so that a proper exposure or warning system exists.

(v) Phased elections may be necessary because of the size of the Indian electorate. I am totally against the ban on exit polls. Justice Sawant, former Chairman of the Press Commission, was in favour of such bans. Such bans violate free speech and the right to know. But exit polls do influence an increasingly literate and TV watching populace. The voting poll period should be shorter from a month to a week – preferably the same day. This requires resources, ability and extended vigilance.

(vi) After the election, hung parliaments have become the order of the day. What should the President do? Most of the controversies are artificial. The real fear is that Congress supported Presidents may misuse their discretion to use the ‘largest party’ option to favour Congress, as President Venkataraman did in 1989. Indian politics does not respect conventions. The shameless cannot be shamed. The President must realize that the answer is: arithmetic–arithmetic–arithmetic. There is no sanctity or constitutional recognition to be given to a pre-poll alliance as if that were a political party. The highest majority of a party or combination should be selected. If there is no majority, then it should be the largest minority party or combination. Such simplicity reduces discretionary bias. Since 1967, our governors have played havoc with their discretions. The Bhagwan Sahay, Sarkaria and Constitution Committees have not provided answers. The arithmetic solution should be placed in an Instrument of Instructions of the kind intended by the Draft Constitution.

(vii) There is a ‘corrupt interregnum’ between the declaration of result and the summoning of parliament when the Anti-Defection Law does not apply until Parliament is formed. One part of the Constitution’s Xth schedule declares that a person shall be “deemed” to belong to the party that set him up as a candidate or as an independent as the case may be (Explanation), another part permits disqualification only of members of parliament. The Supreme Court has not really ruled on this. An advisory reference to the Supreme Court will resolve that persons standing on party tickets or as independents cannot change sides after the elections. Alternatively, the law needs to be changed.

(viii) The singularly Indian practice of asking the new Prime Minister to table a confidence motion is pre-emptively absurd. Confidence motions are hara-kiri motions saying “Aa bail mujhe mar” (O Bull, come attack me). Why should newly elected governments be doomed to face self-inflicted confidence motions? Let them survive. If the opposition wants to table a non-confidence motion, let them do so, to risk forcing an election against the wrath of the people. Perhaps a convention should develop that no confidence motions will be tabled for at least a year!

(ix) There are a number of other issues relating to negative voting, voter cards, financing elections etc. which need attention.

Elections come and go and we learn nothing from them except the results. After sixty years and 15 elections (scores more in the states), a high powered Electoral Reform Commission should seriously consider changes in the electoral system. The vulnerabilities of Indian democracy need attention.

A Stable Government


A Stable Government

 The 2009 elections is the first decisive verdict after two decades of fractured mandate, also signalling the rise to prominence of the national parties – Congress with 202 and BJP with 122 seats. In a sub-continent mired in political instabilities – Taliban in Pakistan, the Nepal Conflict, Sri Lankan-LTTE war - a stable government in the South-Asian superpower is welcome.

 We believe:

 (i)         Hard-bargaining between coalition partners for berths in ministries and plum posts is a natural political process; though it should not lead to politics of brinksmanship to threaten stability.

(ii)         With a stable government at the Centre many economic and social reforms can be pushed by this Government

(iii)         Indian elections have many undemocratic elements, which need to be addressed.

(iv) A National Electoral Commission should be established to ensure free and fair elections (for detailed comment see our next post).

 For further discussions/comments  contact PILSARC at:

Sri Lanka Crisis

Pilsarc Press Comment 23-05-09


Sri Lanka Crisis

Sri Lanka is facing on of the biggest humanitarian crisis in its history. The defeat of the Tigers in the months long battle has also seen gross human rights violations (including civilian deaths and injuries), human displacement at an unprecedented scale. Around 2,75,000 internally displaced persons are sheltered in camps and are in need of aid.

We urge:

(i)      Rehabilitation of the displaced persons should be taken up on a day to day basis by the Sri Lankan Government. The living conditions in the camps have been strongly criticised by human rights organisations. The Sri Lankan Government should provide complete access to UN and humanitarian organisations to detention camps and battle zones to ensure treatment to the wounded.

 (ii)     The Sri Lankan government must provide daily reports to ensure transparency in the rehabilitation process.

 (iii)    UN should constitute an International Commission of Inquiry to investigate and hold responsible all parties involved for international human rights and humanitarian law violation – as both the Sri Lankan Government and the LTTE have committee gross violations.  An international mechanism is required to the lack of effectiveness of the state mechanisms to monitor and reduce the human rights violations.

(iv)    Meanwhile, the Human Rights Committee should be seized of the matter and monitor the relief and rehabilitation process.


(v)     A long term solution must be reached by all the parties. The Sri Lanka Government should must take lead in the devolution process as well as power-sharing at the Centre for minorities.


For further discussions/comments  contact PILSARC at:

Tuesday, May 19, 2009


Rajeev Dhavan

The people of India have spoken – discerningly weighing local, state and national issues. They have defied the pundits of prediction and put presidential dilemmas to rest. The Congress led UPA has won – still short of a clear majority which is within its grasp. Three things have dominated this election: charisma, performance and strong party presence. In West Bengal the left’s party presence was belied by its performance. In UP, the Congress party rebuilt its ranks and contested all the seats.

For the future, an important issue survives. India lacks party discipline and democracy. In the George Fernandez JD split case, TN Seshan as Chief Election Commissioner gave an ‘order’ that political parties must adhere to their constitutions. Sanjay Gandhi’s legacy was to build Indian politics around goonda power. This model was emulated. Today, people are drawn to rallies by the promise of free lunch boxes. The political party is the vehicle of Indian democracy, not reliance on goondas and goons. Each political party has to build its cadres from below, keep them active for the next five years and be accountable to the party constitution. The important message of this election is politicians cannot simply sow the wind and expect to reap the whirlwind.

Before the result became clear, there was a considerable controversy over the President’s options. Many options associated with past Presidential practice were suggested: largest simple party, the largest pre-poll alliance, the largest post-poll alliance, the largest party or combination with a majority, the largest party or combination if no majority exists. In my view, there was never any magic formula ready for invocation. All our Presidents have been Congress nominees – of which President Pratibha Patil is the most obvious example. The real fear was that as a Congressite she might invite the Congress as the largest party, even if others had a better claim. The fear turned round the ‘largest party’ formula precedent of 1989 when Rajiv Gandhi was invited but declined to form a government. Constitutional theorists have blown many trumpets (or shennais) around various magic formulas to present dilemmas where none existed. Formulas are misleading and can only result in infirm results. The more we curtail the Presidential discretion, the better it is. The people want: stability, stability, stability. The answer to Prime Ministership selection is: arithmetic, arithmetic, arithmetic. Stability has to be founded on arithmetic which is the only logic Indian politicians will understand even if they pave their lives for it. There was no point in tempting the President with biased moral choices wrapped up in clever formulas wrapped up as Chinese cookies with a message. Coalitions have existed in India since 1967. Governors have played havoc with magic formulas. Indian constitutionalism should now accept one test: arithmetic. The largest pre-or-post poll combination or party that has a clear majority has to be invited. If no clear majority exists, the largest pre-or-post poll combination or party.

India is very low on the moral conventions that are supposed to bind a working constitution in place. Conventions set working moral standards. But what good are moral standards? Can they shame the shameless? Conventions have become irrelevant. Only strong legal restraints and fear of loss of power work.

So, the President must accept the largest party or combination which has a majority irrespective of whether there was a pre-poll alliance or not. In any case, there is no magic in a pre-poll alliance. The Anti-Defection Law recognizes ‘political parties’. A pre-poll alliance is a political assurance with the implied ceteris paribus clause: if other things remain the same. In these situations nothing remains the same. There is no constitutional discipline that can be imposed on any alliance – pre or post poll. The President can only recognize the numbers in front of her.

In the aftermath of the present election, President Patil cannot be accused of partisanship, if she invites Manmohan Singh to form the next government. His majority is not clear. But, the President is entitled to ask Manmohan Singh to assure her that he has a clear majority and the prospect of running a stable government. Once again her request is confined to numbers. It is for Manmohan Singh to convert political algebra into Presidential arithmetic. In the present case, if a single party is pledging support (whether from within or without government) to the UPA, the leader of that party must assure the President. Where the support is fragmented, a signed list is enough. No ungainly parade is necessary.

Should there be a confidence vote after, the swearing in and Parliament is summoned? I have always taken the view that the singularly Indian practice of asking the new Prime Minister to table a confidence motion is pre-emptively absurd. Confidence motions are hara-kiri motions or what is colloquially called “ah bail mujhe mar” (O Bull, come attack me). Oppositions have to vote against confidence motions. Every Prime Minister needs a breather. Suppose there is a minority government with the largest party or combination without a clear majority. Are they to be doomed by a self inflicted confidence motion? Let them survive. If the opposition wants to table a non-confidence motion, let them do so at the risk of forcing another election and risking the wrath of a people. Perhaps one convention should develop that no confidence motions will be tabled for at least a year!

A clear result has meant that horse trading is obviated. There will be demands like those of Chief Minister Nitesh Kumar of Bihar that more resources should be given to his state as a ‘backward’ state. I really do not think partisan promises can be made in exchange for power. Even worse was the Jayalalitha’s expectation that the new Union Government would plot and ensure the fall of the DMK government. Such demands undermine constitutional governance and pre-empt parliament and the Cabinet’s independence and autonomy. At best, Nitesh Kumar can be told that the needs of Bihar will be considered as they are duly bound to be.

I have always feared the period between ‘declaration of results’ and ‘government formation’. I can this a corrupt interregnum when horse trading, suitcase politics, inducements of office are made. The anti defection law does not apply until Parliament is formed. But, I think there is a tension in the Xth schedule which houses the Anti Defection provision of the Constitution. One part of the Xth schedule declares that a person shall be “deemed” to belong to the party that set him up as a candidate or as an independent as the case may be (Explanation). Another part of the Xth schedule permits disqualification only of members of parliament. The Supreme Court has not ruled in this, but it should. I think an advisory reference should be made to the Supreme Court that the Constitution does not permit a person standing on a party ticket or as an independent to change sides after the elections. Integrity to the electorate must be assured. Depending on the Court’s response, a constitutional amendment may be necessary. During this period, no President should allow such defections as part of the head court. For the present this problem does not arise.

Indian governance can confidently move forward.

Saturday, May 9, 2009

Secrecy and the Supreme Court

Secrecy and the Supreme Court
- Rajeev Dhavan

What will the Supreme Court do now? Will it appeal to itself in its own case? And decide in its own favour?

Adding vulnerability to embarrassment, the Supreme Court laid its confidential soul bare in a writ petition to the Delhi High Court challenging the order of disclosure by the Central Information Commission (CIC) under the Right to Information Act (RTI). The issue: disclosure of assets and dragging the Chief Justice of India into the vortex of the RTI. The highest court of the land was at the doors of a subordinate court. This must have been done at the instance of the CJI even though filed by the information officer. Curiously, the information officer who was so ordered by the CJI to approach the Delhi High Court, claimed that under the RTI, the Supreme Court was quite distinct from the CJI who ordered the litigation. We must assume that the CJI, who must have given the orders to file the Delhi High Court petition, was the real behind-scenes litigant before the High Court.

On 2 September 2009, Justice Ravinder Bhatt displayed great erudition and clarity in telling the CJI and the Supreme Court that (i) the CJI was a public authority under the RTI; (ii) Information on assets falls under the RTI; (iii) the information given to the CJI is not confidential or in a ‘fiduciary’ capacity; (iv) the content of assets declaration is not personal information unrelated to the judges’ work and status; and (v) the CJI could easily provide greater clarity on assets declaration in consultation with his brother judges if he wished.

This is a brave decision, brilliantly analysing the law in terms of constitutional democracy by saying that the RTI is “one of the most important pieces of legislation, in the post-independence era, to effectuate democracy…like a powerful beacon which illuminates unlit corners of state activity and of public authorities which impact citizens’ lives, to which they previously had no access”. To this Justice Bhatt reminded his own brethren (including the Supreme Court): “The underlying promise of every modern constitution is that power, whenever given, is held and exercised in trust”. This is equally true of the CJI and the Supreme Court. This is a sobering thought judges should so well to remember. Just last week a Supreme Court judge listening to a case suggested that as a Supreme Court judge he was Supreme, could do the legally impermissible because there was no appeal to any higher authority! Power cannot be allowed to go to anyone’s head – least of all judges.

Justice Bhatt’s judgment reminds us that under the present law judges have no obligation to disclose their assets to anyone. This is in contrast to America, where the Ethics in Government Act 1978 and the Judicial Disclosure Responsibility Act 2007, provide a balanced public interest approach to obligate the judges to put information on themselves in the public domain. In India, Law Minister Moily withdrew the Judges (Declarations of Assets and Liabilities) Bill 2009 under pressure of public opinion and we are still in the lurch about its future. Clearly in India, the system of disclosure about the judiciary has been devised by judges, is imperfect, self serving and half hearted. It is better to have a proper system set up by Parliament than wait for judges to stumble on the right solution.

The “judges assets” decision has not arisen because judges are under an obligation to reveal assets, but because judges have volunteered this information in a ‘Judges Declaration’ of 7 May 1997. It is the High Court rebellion led by Justice Shylendra Kumar that has consolidated into public promise. After 12 years, the issue of “judges assets” still flounders for style. The simple answer: “Step in Parliament and resolve the mess”. But, it is important that Parliament should be balanced. At present, the judiciary is not one of the institutions exempted from RTI (Section 24). Total exemption may be warranted in some cases (the schedule is already too wide), but not for the judiciary which prides itself on accountability through openness. Today, even information on the workflow, complaints against judges and budget of the Supreme Court is not available. When Fali Nariman tabled a bill for disclosure of such information, Law Minister Bhardwaj denied support!

But, Justice Bhatt’s judgment leaves one or two issues open. In the operative order, the Supreme Court’s information officer is directed to “… release the information sought by the respondent applicant, - about the declaration of assets, (and not the contents of the declaration, as that was not sought for) made by judges of the Supreme Court, within four weeks”.

What happens about the contents of the declaration? It was not asked for, so it was not given? But if it is asked for, will it be given? Justice Bhatt has made it clear that the information does not come under the broad exemption of information in a “fiduciary relationship” (Section 8 (1)(e)). Technically, he is right because “fiduciary relationship” vest in guardians, trustees, company directors and so. The CJI comes under the RTI. But, while cabinet papers are specifically exempted under RTI (Section 8(1)(i)), the judiciary’s deliberations are not. The privacy exemption relates to personal information not related to official work (Section 8(1)(j)).

But Justice Bhatt has, perhaps unwittingly, set a cat amongst the pigeons. If the CJI is under RTI, what happens to the information about appointing High Court and Supreme Court judges? Following the Supreme Court’s 1993 and 1998 decisions, the CJI and the collegium make many crucial decisions which have changed the face of the judiciary. Will this information be available during or after this decision process? Or will the CJI and collegium judges claim a new found constitutional immunity of information which they devise for themselves?

The Supreme Court’s 1998 decision says that the opinions of judges should be sent to the Law Ministry and Cabinet and even disclosed to a recommended judge whose appointment has been shot down by the Cabinet. The Cabinet’s deliberations are exempt from RTI, but the Supreme Court’s paper work is not.

As things stand, the people of India are baffled at judicial appointments even, and especially, to the Supreme Court. Justice AP Shah, Chief Justice of Delhi – arguably one of the best judges in India has not been elevated to the Supreme Court. Why? Is it because of an intuitive needle of suspicion festering in one or two members of the collegium. In recent years, while making appointments to the higher judiciary, the Supreme Court’s criteria of seniority or exceptional merit have been flouted on the basis of personal preference.

Basically, the Supreme Court and judiciary are highly secretive, but hugely empowered high profile institutions. Justice Bhatt steps in the right direction. The real controversies will follow about appointments complaints made against judges to the High Court or Supreme Court and even assets declaration.

Will the Supreme Court, a litigant before Justice Bhatt, appeal to the Delhi High Court Division Bench; and, then to the Supreme Court in its own cause. It should not. But, that drama is yet to unfurl. Wisdom not obstinacy or grudges should rule the future.

Saturday, May 2, 2009

Binayak Sen - Free at last?

Two years has been a long wait for human rights activist Dr. Binayak Sen. "Free-Binayak Sen" was a cause celebre and evoked attention at national and international level. Letters from Nobel Laureates, lack-of-proof against Dr. Sen - did not help in getting a release for him. His failing health was the primary reason for the bail – which was granted on 25th May 2009. Dr. Sen's story would only be the tip of the iceberg in many stories of detention and prolonged jail-stays for human-rights activists. It would thus be too early to celebrate Dr. Sen's release as victory of civil-liberties.

Dr. Sen was a vocal opponent of Chattisgarh state's anti-naxal measure: Salwa Judum - which has led to forcible displacement of 1,00,000 tribals and looting, burning, beatings and torture. Dr. Sen was arrested on 14 May 2007 on the grounds that he met CPI (ML) leader, Navin Sanyal, 33 times in Central Jail and used to carry letters written by Mr. Sanyal to this other associates regarding unlawful activities of the organisation. It was also alleged that he had arranged for a house on rent for the organisation's activities and planned to commite unlawful activities in Chattisgarh. The Chattisgarh High Court rejected Dr. Sen's application on the grounds that there was prima facie case against him.

Dr. Sen was refused bail by the Chattisgarh Sessions Court and High Court (twice), and by the Supreme Court - Dr. Dhavan argued one of the bail applications for Dr. Sen, which was dismissed in December 2007. Dr. Dhavan also questioned the DGP Chattisgarh as to why he should not resign for the blatant human rights violations committed by the police in Chattisgarh (see video).

As observed by Justice Krishna Iyer in Balchan case (1974), "...The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court..."

In the Amarmani Tripathi case (2005), the Supreme Court laid down matters to be considered in a bail application - whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi)likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, or course, of justice being thwarted by grant of bail.

The good doctor turned himself in when he heard during a visit to Kolkatta that the Chattisgarh authorities were looking for him. Also, there were no more witnesses left for Dr. Sen to influence them. He has been honoured by the Indian Academy of Social Sciences and recently won the Jonathan Mann Award for Global Health. Were not these reasons enough to grant him bail?

The fight for civil liberties is a continuous process. Dr. Sen's bail should not be the end of the movement, but rather a beginning. More such cases should be highlighted. The fight against draconian laws like the Unlawful Activities (Prevention) Act 1967 and Chattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 has to be taken ahead.

- PILSARC Editorial