Saturday, November 28, 2009



At last after 17 years, 399 settings, 48 extensions, a cost of Rs.17 crores, embarrassing differences between the Commission’s counsel and Chairperson, litigation in Court to delay it, the Liberhan Report on the destruction of Babri Masjid has arrived. Submitted on 30th June 2009, Home Minister Chidambaram held on to it until, it was leaked on 23rd November 2009 amidst accusations of conspiracy and finally tabled on 24th November.

First, the leak. It was a coup for a newspaper. If anyone knows about the leak, surely it is that newspaper which stole a march to make a coup. In fact, what was wrong was the archaic law of non-disclosure. It is an absurd relic from English practice. There is no reason why reports should be disclosed to parliament first. On one occasion in 1960 or so, Pandit Nehru was accused of breach of parliamentary privilege because he pre-disclosed to the press a comment he was to make in the Parliament. This part of Parliamentary privilege should be removed by legislation. An Act should be enacted which simply says “All reports to Parliament shall be submitted to the Speaker and Chair of each House; and simultaneously published straightaway; (2) Any Action Taken Report (ATR) shall be declared to Parliament within one month”. This cat-and-mouse game of publication will disappear consistent with RTI principles of transparency. No report should be withheld from the public by either the government or the parliament.

Second, the spat between the Chairperson and Liberhan Counsel Anupam Gupta is unnecessary. Self-advertisement is not unknown to Gupta who acquired notoriety in other controversies over judicial corruption in 1993. Liberhan appointed Gupta. There is no reason to doubt Liberhan’s integrity. Making media capital out of personal recriminations is not right morally, under lawyer-conduct rules or otherwise.

Everytime a report comes out, we do not have to wail that all commissions are useless and designed to gather dusts. Reports are of many kinds: on corruption, riots, events or people. Corruption reports on Kairon and TT Krishnamachari were given to Nehru who took action. Today, Prime Ministers and all political parties tolerate corruption. Parliament’s own Joint Committee Report on Bofors, on Rajiv Gandhi’s involvement, has never been accepted as true or convincing. Commission reports should not become political toys. The Babri Masjid report explores a damning event of our history. It is easy to dissolve its findings in acerbic party-political acid. But this should not happen.

Let us look at the Report and the political antics designed to obfuscate its message. This is a peoples’ report for the people to find their way around a peoples’ issue on an event that divided India. 6th December 1992, when the Masjid fell, is a watershed in India’s contemporary history. Through the demolition, the Sangh Parivar legitimized the politics of a destructive communal hate. Hitherto, communal tension was regarded as an evil in governance. After Babri Masjid, BJP leaders and the Parivar set a new political standard which declared that the destruction of Masjids, killings of peoples, destroying of art works were a legitimate pursuit of a communal pseudo-Hindu nationalism advancing the cause of the “true Aryan” people.

Liberhan was not examining a “who-done-it”. He was looking at a phenomenon that shook India’s secular, multicultural people and polity. What Liberhan found was what we already know but need to know better. His conclusions in chapter 14 were (1) Babri Masjid was not an unintended spontaneous event except for “self-serving hyperbole”; (2) Logistically, given the total preparedness of the Karsevaks, there was a well planned conspiracy to destroy the Masjid; (3) Financial support came from Sangh Parivar funds including bank accounts operated by various named persons; (4) The, then, Chief Minister Kalyan Singh and his handpicked bureaucrats were involved in the conspiracy to destroy the Masjid and allowed a “parallel government” and “cartel” to facilitate the campaign which infiltrated the government; (5) The state (of UP) had become a willing ally and co-conspirator in the joint common enterprise…(of) demolishing the structure.”; (6) The conspiracy arose from the single-minded efforts of the RSS and VHP ideologues and theologians to manipulate ordinary people into a frenzied mob; (7) The campaign had nothing to do with a popular mandate from the people who were manipulated to support it; (8) The police fell in line with this conspiracy; (9) The union government was crippled by failure of intelligence and the “all-is-well reports by its rapporteur Tej Shankar”; (10) Not a single video camera was put in place; (11) The media “and journalists were subjected to systematic harassment”; (12) Leaders like Vajpayee, MM Joshi and L.K. Advani, and Govindacharya knew of the designs of the Sangh Parivar and lent their support in various ways; (13) Muslim leaders “wittingly or unwittingly” did not counter the plans of the RSS and VHP, effectively to make the latter’s task easier; (14) 68 persons are found “culpable”, including Advani, Vajpayee and Joshi, but not Narsimha Rao.

There are several recommendations for the future on both the inadequacy of response and the need for new changes. None of the 68 indicted culpably should hide behind procedure (even if those like Vajpayee have a genuine grievance of not being called a witness in his defence) or the leak of the report. Let them replace artful defence with honesty and candour. The indicted persons face two alternatives other than criminal proceedings. The first alternative for them is to candidly state: “I was involved in the destruction of the Babri Masjid and I am proud of it”; and face the social, legal and political consequences. Alternatively, if they are innocent, then each individual in this group of 68 should be prepared to say: “I never intended or participated in any conspiracy to destroy the Masjid; I denounce and condemn its destruction as illegal and unconscionable; I express my regrets over its destruction and promise never to be involved in any conspiracy and actions to destroy religious structures or victimize people of other faiths and religions.” There is no other alternative. Its truth or nothing.

India must put this divisive event behind it. The Supreme Court decisions on the Ayodhya Act and Presidential reference case of 1994 have stated that the vesting of the Babri Masjid area in the Union Government makes the latter trustees and not owners of the structural area until the Lucknow court decides this issue. At least court proceedings have brought temporary peace. But, following the Liberhan Commission report there should be a ‘truth and reconciliation’ in which statements and regrets are talked through.

The BJP and Sangh Parivar must be truthful. The nation cannot move on until the truth is told. The Liberhan Commission invites a premium on truth not for further divisiveness but to heal a nation which was split open. But if obtaining political power is more important than governance, these games will continue to infiltrate our psyche. The most frightening part of the Liberhan report is how the ‘state’ and ‘governance’ can be hijacked into manipulation and control. Fascism began in this way.

Saturday, November 14, 2009

Even prisoners have rights


India’s prison law and policy needs total revaluation. For example, India’s Prison’s Act 1894 permits “whipping” for prison indiscipline. This remains on India’s statute book though abolished in Andhra, Assam, Bihar, Gujarat, Madhya Pradesh, Maharashtra and West Bengal. Such laws and policies represent a prevailing attitude towards prisoners. The irredoubtable Justice Krishna Iyer carried forward the case for humanity, respecting the life and liberty during confinement. In the Sunil Batra cases, Krishna Iyer J deemed solitary confinements, bar fetters and whipping “barbaric”. In 1966 the Supreme court granted convict Prabhakar to publish a book on the atom. A prison is not a dungeon in the Bastille. Kiran Bedi has shown that prisoners have talents, need opportunities and need creative and humane treatment. Constitutionally the message is: “Even prisoners have rights”

The Manu Sharma parole has excited all kinds of passions. The reactions are quite typical of our reactions to cricket. If our team or some player wins, we accord glory to them. If not, we are inconsolably depressed. While evaluating Manu Sharma’s parole, we should not put the entire system of parole into jeopardy.

Parole is a right (perhaps, in strict legal parlance, a privilege) that inheres in every prisioner. There are two broad views on parole. Justice Krishna Iyer’s expansive view in Dharambir (1979) was that parole is a humanizing necessity, which should be allowed for two weeks to every prisoner every year to prevent prisoners from becoming hardened criminals. The second ‘strict necessity’ view is that parole should be granted for personal necessity. In both views, good behaviour is a pre-condition. In the expansive view every peccadillo by a person is not bad behaviour heralding a disentitling fall from grace.

Even Manu Sharma who is in jail for the killing of the beautiful and innocent, Jessica Lall, is entitled to be considered for remission and parole with strict conditionalities. Our Prisoners Act 1900 is woefully deficient on the subject of parole. Under the Constitution “prisons” are a state subject (List II, Entry 4). So, it is left to the states to devise rules. Rules of varying dimensions have been devised by law in Bihar, Madhya Pradesh, Tripura and West Bengal. Parole terms usually require serving one year of a larger term, considering the nature of the offence and good behaviour in prison. Tripura even allows release of upto 2 years, whilst others usually permit parole for 15 to 30 days. But apart from statutory provisions, there is also the general power of pardon in the President (article 72) and the Governor (article 161) which extends to granting parole. In addition there is also State Government’s power under the Criminal Procedure Code 1973 (section 432) to suspend or remit sentences. This latter judicialised procedure is somewhat different from the pure bureaucratic procedure requiring the state to seek the opinion of presiding judge of the convicting court. This diversity of legal and constitutional options is as haphazard as the results they produce.

The Delhi system seems to encounter many difficulties. The relevant circular is that of 7 March 1958. No changes have been made. If we look at the last four years, newspaper estimates suggest about 4 out of 5 parole applications fail. Reportedly in 2009, out of 132 applications, 11 were granted, 33 rejected and 88 are pending. This system of denial is being examined by the Delhi High Court. In Sumedh Singh’s case (of Connaught Place shooting fame) Justice Kailash Gambhir strongly disapproved delay in processing parole applications. The High Court has itself issued a suo motu petition (WP 1121/2009) to resolve this. It will be heard on 25 November 2009. whether a final court verdict with guidelines will emerge on that day is doubtful.

In Manu Sharma’s case, Chief Minister Dikshit reports that the decision was taken after processual consideration by the Prison Department, Police, Home Department, Chief Minister. The Delhi Legal Services Authority criticised this approach whereby applications are often considered after the necessity (e.g. attending a marriage, sickness within family etc) is over! The High Court in October 2009 was absolutely right in demanding a review of the procedures. What we need is a single committee working full time to examine applications. Granting parole is not a part time job for a busy Chief Minister following hastily put together reports of uneven depth and significance. The Lieutenant Governor affirmation becomes a mere signature behind which he can hide his non-application of mind.

The Manu Sharma affair should not take the public gaze away from the need of a fair, just, quick and efficient parole system for deserving prisoners. In fact, Justice Krishna Iyer’s view that parole should not just be grounded on necessity but as a matter of practice for at least two weeks every year for long-serving prisoners deserves high consideration.

Manu Sharma’s personal case was clearly botched up. Consistent with what I have argued earlier, prima facie Manu Sharma deserved bail subject to conditionalities (including, perhaps against armed visiting of pubs). He had been a model prisoner and had been in jail for a considerable period. There was a difference of opinion between the Delhi Police (which said “no”) and the Chandigarh Police (which said “yes”). It was to Chandigarh that Manu was heading. There was no serious flaw in granting him bail. But there is a serious doubt about how his application was prioritised. Was it that his mother was ‘seriously ill’? This could be a reason for accelerated consideration. Was it that he had to attend business? That, by itself, is not a reason for prioritised consideration? But the grant of parole to Manu Sharma created suspicion on at least two counts. First, there appears to have been political influence in prioritizing his case. His father is an influential businessman and politician. Second, his parole was extended by a month till 22 November 2009 - with a three day in between the two months of parole without permission. An oversight, perhaps, but deliberately so.

There is a distinction between the granting of parole and its abuse. Did Manu abuse his parole? There seems little doubt that the very granting of parole was tainted. His mother, Shakti Rani, was far from ill and she was organising press conferences for under-19 women’s cricket competition. But Manu’s case has acquired public notoriety because he went to a pub in Delhi’s Samrat Hotel. This was certainly news, but was it a breach of parole? By itself, I do not think so. Not visiting a bar should have been a express condition of his parole. Suppose a spy found that Manu was drinking whisky and champagne everyday at home, while playing rummy with his mother. Would this be a breach of his parole? Manu’s singular trip to a club is not by itself a breach of parole (even if the media thinks otherwise) because of the absence of a strict condition of parole to this effect which should have been put in his case. Equally Manu should have had better sense than flaunt his parole in a bar.

The parole system is a salutary system. Prisoners have rights and duties. A proper full time system of parole must replace the present ad hoc system. Our reactions to prisoners and their parole are as medieval as our minds on the subject.

Thursday, November 12, 2009



Rajeev Dhavan

Eight percent growth does not define India. It is living people who do. For decades, it is poor who have made India proud. Harassed and manipulated, they cling on to their identities of faith, group and culture in ways that both assimilate and divide.

To accommodate regional and historical claims, India evolved flexible boundaries and ideas for its federalism. From 1950-1956, there were class ‘A’, ‘B’ and ‘C’ states. A States Reorganization Committee (1956) abolished this framework to create new States and Territories. After Nehru gave up his resistance, linguistic federalism went further with the creation of Maharashtra, Gujarat (1960), Punjab, Haryana (1966) and Himachal (1971). Cultural and political pressures led to the reorganization of the North East creating Nagaland (1962), Meghalaya, Manipur and Tripura (1972), Mizoram, Arunachal, Goa (1987), Chhatisgarh, Jharkhand and Uttarkhand (2000). Indian federalism is a-symmetrical with special status to Jammu and Kashmir (article 370), and to various other states (article 371A) and the Tribal Areas (Vth and VIth Schedule). Each reorganization has worked well despite the disapproving flutter that India is splitting into unmanageable pieces.

The Constitution accommodatingly allowed geographic restructuring by the Union, requiring no more than the legislature of the affected state to “express its views” (article 3). The people were not involved. There was no referenda. But should Indian federalism be re-written by agitational politics? Is there no limit to redrawing state boundaries? Just because Potti Sriramalu’s fast to death created linguistic Andhra, it does not follow that K. Chandrasekhar Rao’s (KSR) fast should yield a similar shot gun result. Conceding Telengana has triggered off a chain reaction of demands including Rayalseema within Andhra, Bundelkhand, Harit Pradesh and Purvanchal in Uttar Pradesh, Gorkhaland in West Bengal, Bodoland in Assam, Coorg from Karnataka, Vidharba from Maharashtra, Saurashtra in Gujarat, Mithilanchal in Bihar, Mahakhosala in Orissa and Ladakh and Jammu in J&K.

Demands do not implement plans. The 1956 States Reorganization Commission drew detailed plans. A lesser exercise went into the split up of Punjab in 1966 and the North East in 1971. With no role given to the people, their will is eclipsed by demonstrations, slogans and political aggrandizement – with each political party wondering how its electoral chickens will hatch. But, if the will of the people is an un-Gandhian fast unto death, KSR’s 11 day fast is now to be out-matched by 21 Gorkhas launching a hunger strike unto death.

The peoples’ will should be given effect to by a Second States Reorganization Commission (SSRC) 2010 - initially to examine the claims of Telengana, Rayalseema and Andhra. The SSRC 2010 should then examine other claims to statehood – dealing not with legislators but the people, economists, geographers and technical experts. Without overlapping with the Punchi Commission on federalism, the SSRC would concentrate on geographic federalism so that state boundaries are settled by 2015 – after which changes should be by referendum.

The historical demand for Telengana suffers many inexactitudes. In princely Hyderabad, the ‘land of the Telugus’ was distinct. Today Telangana has 10 districts, including Hyderabad, a population of 35 odd million, an area of 114,800 Sq. Kms and the mighty Krishna and Godavari rivers flowing through it. Land locked, it produces 119 out of 294 MLA’s and tips the balance with 17 out of 42 MPs. For political parties, the future will remain a puzzle. This is the probable reason why the Congress is hesitatingly willing to risk the Telengana gamble. The BJP is happy either way. It will criticize Congress if the movement fails and take the credit if Telengana becomes a reality. There is more to creating a state than party politics. Many questions arise: (i) Will the creation of the new state bring peace and a lasting solution for the area? (ii) Will the new state be financially and economically viable? (iii) Will the sharing of resources be equitably worked through? (iv) Will the developmental prospects and peoples’ rights and development be enhanced? (v) Where will State institutions and the capital city be allocated. The Chandigarh solution for Punjab and Haryana remains disputed as a lasting solution. In our context, who will claim Hyderabad? This cannot be worked out by a special session of the state legislature to affirm a Union Parliament Bill which is the only constitutional requirement.

Across the border, Nepal is trying to create a federal system. Its assembly members are concerned that small states may not generate a sufficent Consolidated Fund to pay for minimal infrastructure of a legislature, courts, police and administration. The poorer the state, the greater the need for distribution of federal revenues and grants. When I went to Iraq to discuss federated units with Iraqi legislators, they wanted to know who would control oil revenues. In Canada, oil rich Alberta shares with other provinces by negotiation. Dreams get shattered by an impoverished federal structure unable to meet just demands with federal equity.

India is now committed to a multi-tier federal structure including a panchayat system. At this point, many states are still dealing with issues concerning the representation of dalits, tribals, women and OBC’s rather than the panchayat’s real empowerment and control over development, planning, welfare and resources. Why is this important? The geographic distribution of power does not vouchsafe a real and live democracy. If many federal units induce alienation, despair and disillusionment, it is because even amongst the new units, real power eludes the real people. Koda’s Jharkhand is a classic example of how new states break down into corrupt politics. Eventually, the true test of electoral democracy is local government. If England, Europe and America breed democracy it is because local government is strong, responsive, transparent and participatory. To build new states without assuring resources to and empowering local government is to surrender these states to the zamindari of party politics immersed in the ping-pong swerves of periodic elections.

What direction will the new spate of demands for new states take? The federal reorganization of 1956, 1960 and 1966 was along linguistic lines. The North East (1971, 1975) and the recent new states taken out from Madhya Pradesh, Bihar and UP (2000) sported new cultural identities. Even amongst the linguistic states, Mahrashtra and Punjab display xenophobic truculence in ways that exasperate India’s quest of unity and diversity amidst migratory movements. Even if Nehru’s apprehensions about linguistic states were not well founded, he was right in forewarning the dangers of micro-splitting India without reserve. The message: nothing in haste.

Indian federalism’s geographic boundaries cannot be resolved by fasts unto death, stoning trains, burning buses or bringing all business and traffic to a halt. The Constitution makers (article 3 and 4), created an easy method to create new states without referenda. They did not imagine that such a process would become absurdly facile. The silences of the Constitution were to be filled with wise solutions. Each reorganization has to be thought through as viable, necessary and truly democratic and not just shifting MLA’s from the old state to the new. Carrying ‘Telengana’ further requires skill, patience and a democratic approach to divide resources and empowerments. The answer is a Second States Reorganization Commission to meet all demands so that India’s federal structure is not perpetually in unstable equilibrium. Wisdom must sober the shrill demands of politics. 10 Janpath’s knee jerk solutions cannot define the will of the nation.

Wednesday, November 11, 2009

What's in an oath?

What’s in an oath?
- Rajeev Dhavan

The unnecessary controversy over Abu Asim Azmi taking his oath in the Maharashtra Assembly, has eclipsed the issue of taking action against the goondaism that brutally disrupted proceedings in the Assembly. Should such action go unpunished? And, remain uncorrected? Are such blemishes in India’s parliamentary democracy to remain? There can be little doubt that such action constitutes a breach of privilege. The cameras recorded the entire embarrassment of events. They can identify exactly who is responsible for what. No democracy can survive to maturity, if this kind of nonsense holds it to ransom. The correct course of action is for the Speaker to issue breach of privilege notices to those who directly participated in this breach, as well as those who conspired to make it happen. This means notices should go to Raj Thackeray to ask him of his complicity in the conspiracy. If he says he was not part of the conspiracy to disrupt the Assembly, he would knock himself down a peg or two on this issue. If he admits his involvement in the conspiracy, he must be punished along with the others, albeit by token suspension for the legislators and censure for the non-assembly conspirators. At this stage, to punish by imprisonment would make martyrs of such persons. But, issuing process of breach of privilege is a must. Indian legislative democracy has been bruised too often. The fact that indisciplined elements may react with further disruptions, is precisely the reason for issuing process promptly and dealing with the disrupters and conspirators wisely.

No institution, meeting or game can survive without the imposition of such a discipline. Erring football stars are sent off the field. Cricketers are fined and banned. Court proceedings take place with dignity and free expression, precisely because of the law of contempt does not permit such disruption in the face of the court. It cannot take place at cabinet meetings or any meeting for that matter. There is a time and place for protest. The Legislative Assembly is not a place for disruptive protest with impunity. Democracy works through governance by institutions. If the institutions collapse or become unworkable, democracy will also slowly collapse.

I now turn to the oath. The Third Schedule of the Constitution prescribes such an oath for all Ministers, all legislators, judges of the High Courts and Supreme Court, the Comptroller and Auditor General of India. The President’s oath is separately prescribed (article 60), as also of the Vice-President (Article 69) and, the Governor (article 159). There was always a Hindi version of the Constitution. But if there is any doubt, the 58th amendment to the Constitution mandates the President to publish an authoritative text of the Constitution and every Constitutional amendment of it in Hindi (article 394A). If someone wants to take their oath in Hindi, they are doing no more than following authoritative text of the Constitution itself!

It should not be necessary to go into the language policy of the Constitution. The Constituent Assembly wrestled with this question with a fear that separatist language demands could prove divisive. Mahatma Gandhi, who wrote evocatively in Hindi, English and Gujarati, put Hindi on the agenda. The Congress adopted a Hindustani (a mixture of Hindi and Urdu) policy in its meeting. When in 1946, R.V. Dhulekar insisted that the Assembly’s rules be in Hindi, denying non-Hindi speakers the right to remain in the Assembly, his intervention was cut short and a Committee’s compromise of Hindi and English was accepted. With foresight Ambedkar foresaw Hindustani being ‘Sanskritized’ by Hindu writers and ‘Arabicized’ (by Muslim writers) . The debate on Hindi and English was fast and furious to a point where tempers got frayed. While, initially, Nehru did not want a provision on language in the Constitution and discussion on the future language to be used in Parliament and State Legislatures was postponed, Munshi and Gopalaswami Ayyangar made proposals. In the debate over 300 amendments were made over Hindi, Hindustani, English and the State languages. The initial constitutional compromise was to continue English for 15 years – to be replaced by Hindi as the official language, with the states being given freedom to develop their own language (article 343). A National Language Commission would further these goals. Meanwhile, the states were re-organised in 1956 and 1966 on linguistic grounds. There are detailed provisions for both state languages (articles 345 and 346) and special provisions for minority language within states in the Constitution (articles 347, 349). Linguistic claims and minorities were to be protected (article 29, 30 and 350B). The Eighth Schedule of the Constitution now recognises 22 languages which are to be developed and preserved. Hindi was to be developed drawing from Sanskrit and other state languages (article 351). While parts of the Constitution are also a dustbin for expressing concerns, the language policy was pragmatic with a preference for Hindi and with protection for not just state languages, but those of the minority too. Hindi speakers in Maharashtra cannot be denied a constitutional choice.

The practice of various assemblies in India have concentrated on the content rather than the linguistic form of the oath. The important value attached to the oath is to defend the Constitution and accept the rule of the Constitution as not just the rule of law but also the rule of the heart. It is reported that in Madhya Pradesh and Punjab members have taken their oath in Sanskrit. In Chattisgarh, MLA’s took the oath in their own dialect. Proud of Bengali, in West Bengal oaths have been taken in various non-Bangla languages including Nepali. In Andhra Pradesh, MLA’s have taken their oaths in Hindi and Urdu.

Sometimes ‘oath-taking’ in a particular language becomes a symbolic political statement. In Punjab, the BJP MLA Lakshmi Kanta Chawla took his oath in Sanskrit – an odd favourite from time to time. In 2008 in Jammu Kashmir, 11 members of the BJP insisted on oath taking in Dogri whilst Abdul Rashid took his oath in Kashmiri.

Most important to our present controversy is the fact that the Maharashtra Ekikaran Sangam members in Karnataka took their oath in Marathi. So, a Marathi speaker can take an oath in Marathi in some other state, but in the latest fracas a linguistic minority speaker was denied the right take his oath in a language of his choice in Maharashtra! What is even more ironical is that even in the Maharashtra Assembly, two BJPs member took their oath in Sanskrit (Girish Bapat and Girish Mahajan). Congress members took their oath in Hindi (Amin Patel and Ramesh Singh Thakur) and English (Baba Siddique). It is said the Samajwadi Party MLA, Abu Asim Azmi, drew attention to himself and his choice of language. Suppose he did, so what?

India is a multi-lingual country whose Constitution affords linguistic choice as a constitutional right. To make a plea for a language is permissible. To do so with violence in the State legislature with disruptive and divisive aims and ends, is not.