PILSARC

Bail: A Fundamental Right by Dr. Rajeev Dhavan

2011-11-07T03:34:00.001-08:00

There are good reasons to miss Justice Krishna Iyer to whom we own much of our re-thinking about bail as a fundamental right and not just an untidy gift from the judge deciding a bail application. Working, as he says by “candlelight” on bail applications, Krishna Iyer was astonished in Babu Singh’s case (1978) that bail orders were made with “impoverished brevity draped as discretion”. He added: “To glamorize impressionistic orders as discretionary may on occasions make a litigative gamble decisive of a fundamental right”.

Can a fundamental right be disposed off casually with the cryptic order: Bail denied. The short answer is No. Good reasons must exist for denial. As Iyer puts it with the full authority of the Supreme Court: “Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system, that the crucial power to negate it is a great trust exercisable not casually but judicially with lively concern for the cost to the individual and the community”. The constitutional emphasis was made clear in Balchand (1977): “The basic rule may perhaps be tersely put as bail not jail”.

From this three things are clear (i) Bail is a fundamental right (ii) The norm is bail not jail (iii) Good reasons, with full explanation in writing must exist for denying bail. Building on this, in 1980, Parliament added to Section 437 of the Cr.P.C. that even in highest punishment cases special consideration has to be given to juveniles under 16 years, women, the sick and in firm. All this – although good law – has been lost by judicial amnesia.

It is not surprising that bail decisions in the 2G case – especially in the case of Kanimozhi case. The fundamental right to bail is not absolute. The English common law rule (now modified from 1984) is no arrest without a charge. In India we follow the imperial Raj Law that custody may extend to 60 or 90 days in the absence of a charge sheet. Judicial custody orders after charge are possible but should be avoided. Swayed by the blitz of publicity and their own biases, judges treat an accused as a convicted criminal even though he is innocent until proved guilty (see Kashmira (1977)).

In this day and age, the four major concerns about bail can be easily met, namely about the accused (i) absconding (ii) non-cooperation with the police during investigation (iii) intimidating witnesses and (iv) tampering with evidence. In the 2G case, the charge sheet and supplementary charge sheet have been filed. Bail with precautionary conditionalities can be imposed. Impose high surety bonds. The new solution of accused wearing an electronic anklet which will give the exact location of the accused can be imposed. Conditions can also be imposed regards witnesses and evidence which if violated will result in cancellation of bail. This is called putting the accused on terms.

After all this the principle of “bail not jail” applies squarely. The magistrates and judges are obliged to give weighty reasons in writing for denying bail. Unfortunately, India’s bail practice is haphazard, ad hoc, temperamental and swayed by judicial moods influenced by publicity.

Denial of bail the 2G case, with a troubled Kanimozhi’s poignant face reproduced in every news paper and TV, is troubling. On 24 October 2011 the CBI lawyers led by U.R. Lalit (especially appointed by the Supreme Court) categorized the seven bail applications separating those where the punishment between five and seven years respectively. This distinction is traceable to Section 437(ii) which recommends bail in cases where the punishment is less than seven years. On this basis, the CBI opposed bail for only those in the latter category consisting of Shahid Balwa (accused of cheating) and R.K. Chandola who was accused of Prevention of Corruption Act offences.

The CBI took the stance that those under “umbrella change of criminal conspiracy … need not be considered during bail”. This meant bail for Kanimozhi, Sharad Kumar (TV Director), Karim Mokani (film producer), Rajeev Agarwal and Asif Balwa (realty promoters). No one argued for custody for these five except the judge himself.

Somehow the judge got it all wrong. On 22 June 2011, the Supreme Court had indicated that bail could be applied when the charge sheet (challan) was filed. On 22 October 2011, the Special CBI court framed charges against 17 persons. Kanimozhi had been denied bail on 20 May, 8 June, 20 June before making her application which was denied on 3 November 2011.

Why did this happen? The bail applications were slated for 24^th October after which orders were reserved till 3 November 2011. In the meanwhile the Supreme Court took an acute interest in the bail when it should not have done. On 31 October 2011, Justices Singhvi and Dattu wanted the CBI to clarify its stance on the bail applications and the basis on which it was not opposed. What a question by the highest court of the land before the bail order was to be pronounced. Additional Solicitor General Rawal’s response was evasively inadequate. The Supreme Court should have shown restraint. Even their asking questions was an interference with the lower court’s judicial process.

The Supreme Court cannot be excused for what it did. In my view, the Supreme Court should not have made indirect inquiries about bail proceedings in a manner which could be taken as suggesting that the CBI’s advocacy in not pressing bail for five persons was questionable. Which lower court judge would not feel intimidated by the Supreme Court’s concern? There are innumerable cases where orders passed by the lower judiciary not to the liking of High Courts led to disciplinary action against them. Faced with this kind of pressure and other different expressions by the Supreme Court, it was difficult for special CBI judge O.P. Saini not to address or echo the Supreme Court’s inquisitorial concerns. Judge Saini took the safe route of emphasizing the seriousness of the offence. Does this mean all those accused of serious economic offences even after the charge sheet is filed should be denied bail. Note on the very next day (September 4), Raju of Satyam was granted bail by the Supreme Court. The reason for Judge Saini not applying the ‘woman’ exception in the case of Kanimozhi is even more startling. Her case under the woman exception was not considered because she came from the upper echelons of society, was an MP and “therefore by no stretch of imagination … can be said to be suffering from any discrimination on the ground of being a woman”. This is fantastic. No where in the Cr.P.C. is the exception limited to exclude the well off or that the civil liberties of some women are to lightly regarded. Judge Saini also made light of the distinction between those charged in the main and supplementary charge sheet. But surely this was to emphasize their co-conspiratorial role and lesser punishments. Judge Saini made short of the CBI supporting bail in five cases. His ultimate and real reason was that “those who continue to reap the benefits of the crime committed do not deserve any indulgence; and any sympathy to them not only being entire misplaced but also against the larger interest of society.” This was even more fantastic. Judge Saini had obviously found them prima facie guilty and, therefore, undeserving.

All this runs wholly against ‘bail’ being a fundamental constitutional right.

One more suggestion. In the Vineet Narain’s Hawala case (1998), the Supreme Court said that higher courts should let go of monitoring criminal cases after the charge sheet has been filed. In my view, the charge having been filed, the Supreme Court should let go of the 2G now to take its own course. Their continuance on the case is causing confusion and injustice.

2011-09-06T23:47:00.000-07:00

Dear All,

After a brief hiatus the PILSARC Friday Talk Series is back!

This week’s discussion is broadly on the topic of land acquisition, focusing on the Bill approved by the Cabinet. Land Acquisition always poses complex questions. The existing law of 1894 has posed several problems and recent political demonstrations as also judicial decisions have stressed the need for a change in the acquisition law. Does the proposed bill improve things?

We welcome you to an open forum where you are free to discuss the concept of eminent domain, the right to property or any provision regarding Land Acquisition.

Topic – Land Acquisition and the proposed Bill.

Lead By- Dr. Rajeev Dhavan

Where – PILSARC Library, Basement, A-131, New Friends Colony, New Delhi.

When – Friday, 9 September, 2011, 5:00 p.m. onwards

Contact -- 011- 26841079, 26822525

We hope you will come and be moved to participate actively in this debate. Please feel free to bring along friends / colleagues / like-minded people.

2010-12-14T01:30:00.000-08:00

RE: PUBLIC LECTURE BY WALTER KAELIN

This is to invite you to a public lecture by Dr. Walter Kaelin, hosted by the Public Interest Legal Support and Research Centre (PILSARC).

Dr. Kaelin is a legal scholar and emeritus Professor of Law at the Institute of Public Law, University of Bern and will be speaking on ‘Climate change and displacement: A challenge for international law’.

He was formerly the Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons. The event will be chaired by Dr. Rajeev Dhavan, Senior Advocate, Supreme Court of India and Director of PILSARC.

Date: Friday, 17th December, 2010

Venue: Gulmohar Hall, India Habitat Centre, New Delhi

Time: 6:00 p.m. onwards

Please confirm your participation to Rashmi Raman, PILSARC at ramanrashmi@gmail.com or to Priyadarshini Hariharan, PILSARC at priya.hh@gmail.com.

Friday Talk Series - December 3, 2010, PILSARC Library

2010-12-01T02:00:00.001-08:00

Dear All,

Thank you for following the PILSARC Talk Series and helping us to create a lively debate here in the library every Friday. After last Friday’s discussion (if you missed it, our intern has put up a report which is available on the PILSARC blog) on the environmental issues surrounding mining and damming activities in India, we now hike the heat up a notch as we move on to the recent Markandeya Katju decision on live-in relationships in India as perceived by our courts. Taking it further (as was agreed upon), this Friday we meet to discuss the rights and wrongs of sexual orientation and the law as it applies to the LGBTIQs of our country.

I hope you will all come and be moved to participate actively, please feel free to bring along friends / colleagues / like minded people.

Tea and snacks are on us, as also the responsibility of steering the discussion!

Topic(s) – Katju’s judgement on live-in relationships ; law and sexual orientation in India
Lead by - Dr. Rajeev Dhavan
Where - PILSARC Library, Basement, A-131 New Friends Colony, Delhi
When – 3 December, 2010, from 5.30 p.m.

I look forward to seeing you this Friday at the PILSARC Library!

Warm regards,

Rashmi Raman
Senior Researcher,
PILSARC

Report on Friday Talk Series (by Akash Tiwari, Intern at PILSARC)

2010-12-01T01:17:00.003-08:00

Environment protection in India with respect to mines and dams

• The discussion was initiated by Ms. Roohi. She laid emphasis on the trips made by her to places in Chhattisgarh and Himachal Pradesh and described briefly the situation in the naxalite areas regarding mining activities in that area. According to her, the situation is not at all satisfactory. There is literally no check on the mining activities being carried out in this particular area. Chhattisgarh is home to tons of natural resources and mining activities in the area have been going on since its inception in Nov. 2000. For eg- in Bailadilla which is home to tons of iron ore deposits, mining activities have been causing greater damage to the surrounding areas. For eg- the color of the water used for domestic purposes has changed to red due to the mining activities and is not fit for serving any purpose. She gave a similar example of damage being cause to the environment due to unregulated mining activities in certain remote areas of Himachal Pradesh as well. She also clarified that there is no proper implementation of the provisions of any of the statutes related to protection of environment regarding the mining activities. Law on the paper is useless until and unless it is implemented.

• Students from Jamia Milia gave similar examples on unregulated mining activities and its effect on the environment. One of them gave an example of how a mining area looks like describing it as a place which looks like war zone, desolate and life-less. They also mentioned the fact that knowledge of the law is important in such discussions where you need to have the knowledge of certain legal doctrines related to environment protection such as the polluter pays principle, the principle of sustainable development etc.

• A student from the HNLU, raipur laid emphasis on the fact that until and unless situation and the grass root isn’t taken care of, nothing could be done in areas like the naxalite affected areas of Chhattisgarh and Orissa where there is lack of basic amenities. One should first correct the basic infrastructure required for human survival and then talk about environment protection.

• Lastly, Dr. Rajeev Dhawan mentioned about an article of his on Slaughter Mining related to the Mines Act, 1952. Where he has raised the issue of proper implementation of the provisions of the Act as was the issue raised by Ms. Roohi previously. He also said that the run of the river cases are the one’s which are most difficult to argue in front of the Court. He also discussed the report on Total Environment Impact. Then he went on to discuss that where there is construction there ought to be pollution. Activities like mining would eventually release dust particles and chemicals into the environment. He also mentioned about the mining belt which runs right through the Central India. He specifically mentioned the fact that PESA was a badly drafted act and that there were some shortcomings in the provisions of the Act. Then he went on to discuss the Forest Conservation Act and the Environment Protection Act and said that they have contributed significantly in the protection of the environment and both of them were permissive and process oriented legislations. He also laid stress on the fact that there is a need of Informed and educated activists, not just activists. He also specified the need of environmentally active bureaucrats and also briefly mentioned some parts of the Samta judgment. He gave an example of active an informed activists in the form of CSE.

Friday Talk Series - November 26, 2010, PILSARC Library

2010-12-01T01:17:00.001-08:00

To all those who have been attending sessions on Friday evenings, thank you for coming and strengthening the debate here at PILSARC! Last week's discussion on Kashmir was arguably the hottest one we've had in this series!

Tomorrow, to take the heat down a notch, as decided by last week's vote, we will gather to explore the environmental concerns arising from the recent spate of judgements on mines and dams, a topic that has made activists sit up and take notice even as international conventions on environmental degradation witness an all-time high.

Please bring along friends / colleagues / interesting people you know / students, and join us as we begin to understand the promise and the price of environmental protection in India.

What - Environmental protection in India - mines and dams
Who - Lead by Dr. Rajeev Dhavan
When - Tomorrow, Friday, 26 November, 2010
What time - 5.30 p.m.
Where - PILSARC Library (Basement), A 131, New Friends Colony, Delhi - 25

Tea, snacks and copies of the available discussion materials are on us, as is the difficult responsibility of steering the conversation!

The PILSARC Friday Talk Series is intended to provide a free and informal forum for intelligent, critical, analytical minds to speak out and have their voices heard. In case I have missed out inviting people that attended the previous talks in this list, please do forward this invite to them - thanks!

I look forward very much to seeing you all here tomorrow evening!

Regards,

Rashmi

2010-11-18T05:25:00.001-08:00

Dear Faithful!

I hope this finds all of you refreshed and ready to exercise those brains after a long and many-festive-holidays interspersed break,

It is time for us to reconvene at the usual place (which is now renovated and looking much better than before); I am delighted to invite you all to another brainstorming evening, this Friday, November 19, 2010 (tomorrow, from 5.30 p.m. onwards, at A-131, New Friends Colony, Basement Library, to join Dr. Rajeev Dhavan as we attempt to make sense of the set of contradictions that define the Kashmir issue.

Please join us in large numbers, I hope you have made lots of new friends during the holidays and will bring them and more people along with you! Don't disappoint us, show up, and we will supply the usual fare of intellectually stimulating discussion, hot tea and jalebis :)

The PILSARC Friday Talk Series is intended to provide a free and informal forum for intelligent, critical, analytical minds to speak out and have their voices heard.

I do look forward to seeing all of you!!

Rashmi

Friday Talk Series - October 1, 2010, PILSARC Library

2010-10-01T02:35:00.000-07:00

To all those who have been attending our last two sessions on the Ayodhya dispute, thank you for coming and strengthening the debate here at PILSARC!

Tomorrow, despite a resolution passed last week to move on to the controversial Armed Forces Special Powers Act, 1958 / 1992 (J&K), we have decided to spend one more session threshing out the Babri debacle.

The judgement arrived just a few hours back, therefore the delay in sending out this mail - I am pleased to invite you all to the third session of the PILSARC Friday talk series. To those who missed the last two sessions, here is your chance to catch up and have your views heard on what is arguably the most hotly debated and socially volatile judgement in recent years.

Please bring along friends / colleagues / interesting people you know / students, and join us as we begin analysing the Allahabad High Court's pronouncement on the Ayodhya title suit.

What - Ayodhya judgement analysed
Who - Lead by Dr. Rajeev Dhavan
When - Tomorrow, Friday, 01 October, 2010
What time - 5.30 p.m.
Where - PILSARC Library (Basement), A 131, New Friends Colony, Delhi - 25

Tea, snacks and copies of the available discussion materials are on us, as is the difficult responsibility of steering the conversation!

The PILSARC Friday Talk Series is intended to provide a free and informal forum for intelligent, critical, analytical minds to speak out and have their voices heard.

I look forward very much to seeing you all here tomorrow evening!

Regards,

Rashmi

Ayodhya Title Suit Judgement of the Allahabad High Court

2010-10-01T02:32:00.000-07:00

The Babri Masjid was destroyed on the 6th December 1992. It has all along been assumed that the site on which it stood belonged to the Sunni Wakf Board, this having been decided in the 1940s; and the Hindu claim having been rejected in 1885. It is also clear that the Muslims did not lose the right to full ownership of the site after the fateful idols were installed because the Wakf Board filed its suit before 12 years expired. The present judgment of the High Court seems to set aside the Muslim claim to full ownership of the site and seeks to make out a case of joint ownership of some part of the site. On what this is based will only be known once these massive judgments are read.

At this stage, without reading the full judgment it appears that there is a split decision, 2:1 in favour of a three way division of the site. The dissenting judge, Justice Sharma seems to have been wholly on the side of the Hindu argument. Justice S.U Khan found discrepancies in some of the evidence and does not appear to have accepted fully that the pillars found below the Mosque were of a live Hindu Temple that was destroyed between 1526 – 28. Nevertheless Justice S.U Khan and Justice Sudhir Agarwal have concluded that there should be a three way split of the area between the parties, with the site on which the present prayer is being made going to the Hindus and the rest being divided. Both Justice Khan and Agarwal seem to recognize the Hindu sentiment, that this was Ram Janmabhoomi, needs to be respected and built a case for the right to prayer at that sight on this speculative basis. This is speculative because no one can really pin point where the mythical Lord Ram was born or even that centuries ago prayer in fact took place at this sight to commemorate the birth of Lord Ram.

The judges seem to have over reached themselves on the legal question and decided something doubtfully to and offer a solution which nobody had asked for. This is why many are calling this judgment as not a judgment of a court of law based on legalities, but a Panchayati judgment looking for a solution for the future. If the legal questions had been properly answered the site would have belonged to the Muslim community and the Hindu right to prayer would have been recognized as a moral rather than a legal right which the Muslims should consider conceding. Both, honour and dignity would have been satisfied. In this way the judgment could have been a basis to work towards an enduring solution. But the Muslim legal rights not have been recognized, seems to make the very existence of the Sunni Wakf Board’s rights to the land and the presence of the Babri Masjid a chimera. The fact of the matter is that the site does belong to the Sunni Wakf Board. There was a Masjid on that site which is centuries old even if disused. That Masjid was destroyed on 6th December 1992 as an act of sacrilege. To even hint that the very legal foundation of the existence of the Masjid was infirm seems a misplaced way of going about things.

In the negotiations in 1989 under PM Rajiv Gandhi and of 1991-92 under PM Narasimha Rao one of the most important questions was whether Babur in fact destroyed a Temple to build a Mosque. In Muslim terms, this would have made the site haram. This had to be proved to the satisfaction of the Muslims. I am not entirely sure that in the light of archaeological evidence, the Muslims will be satisfied that this has been proved to their satisfaction. Even within the judgment, as we know it now, there may appear to be some discrepancy about this singularly important question. If indeed, archaeological evidence may suggest that there may have been a Temple in and around this site earlier, then Babur did not destroy an existing living temple to render the site haram. Judges are ill equipped to answer questions of this nature on which historians and archaeologists differ fundamentally.

To that extent, both Muslim pride and dignity may not have been served by this judgment, both on the question of Muslim ownership of the site as well as whether Babur in fact destroyed an existing living temple to render the site haram.

The next question is whether this judgment of a three way split is a workable solution for the future to create peace with dignity for all. No one can oppose the idea that a shared site in which Hindu, Muslim and secular can co-exist peacefully. But is this in fact a workable solution on a correct basis for an enduring solution for the future? In the future, will Muslims, Hindus and secularists look back at this solution with pride; and support it to the hilt. It may be difficult to countenance and accept the idea that although the Muslims were denuded to the right of the full site, they must nevertheless accept one third of what they were entitled to on a basis that they were not really entitled to it.

For the moment a lot is going to depend on the generosity of the Muslims to accept the denuding of their right and the proposed solution. It would have been better if the Muslims’ full ownership were recognized along with the right to Hindu prayer. The secular angle to this is that no minority should be forced into a legal solution in which their full rights have not been recognized and they have been given a compensatory one third as part of a new truth, justice and the Indian way of life. The Indian way of life required that no community or group should be pushed into a solution through an incorrect basis of law and moral entitlement.

Although the destruction of the Mosque on 6th December 1992 was not an issue before the court, the fact that a Mosque was destroyed on a Sunni Wakf Board site cannot be denied. The entire world is asking what Indian governance and justice had to offer in the wake of this act of sacrilege. The offer made by the Court which appears to have no legal basis is that Hindu sentiment should be respected. And, as an exercise in distributive justice, the Muslim should be given a part of a cake that is cut three ways. Both the world outside India as well as within the country may continue to make the accusation that India is a Hindu country which is prepared to marginalize the dignity, respect and entitlement of its minorities.

We must all make a plea for calm; but a plea for calm does not mean accepting this verdict. If the Muslim community as an act of grace accepts it and does not appeal to the Supreme Court that may well be the end of the matter, subject to a fair division of the one third split which would not be as easy as the judgment may assume.

But having won the Babri Masjid case, the Hindus should now stop seeking a recriminatory path of so called historic injustice by Muslim or Christian invaders. There should be no call, “Mathura next and Varanasi thereafter.” The Places of Worship (Special Provisions) Act, 1991 says that, on all other sites, rights that existed on 15th August 1947 should be respected. This parliamentary closure of remedying historical injustices should therefore be closed.

Babri Masjid - PILSARC Friday Talk Series, September 24, 5.30 p.m., PILSARC Library

2010-09-22T23:56:00.000-07:00

To those who attended last week's talk on the Babri debacle, thank you for your participation, I hope to see you here every week! To those who missed last week, we hope you will make it this week!

As agreed upon last week, we're taking the Babri Masjid talk ahead this week, and I am pleased to invite you once again, for a follow up discussion that will locate the Babri controvesy within the larger schema of Indian secularism and hopefully, weave in other areas of interest, notably, the Kashmir question, during the conversation.

I hope you will all come and be moved to participate actively, please feel free to bring along friends / colleagues / like minded people.

Tea and snacks are on us, as also the responsibility of steering the discussion!

Topic - Babri controversy within the scheme of Indian Secularism; flash points - Kashmir
Lead by - Dr. Rajeev Dhavan
Where - PILSARC Library, Basement, A-131 New Friends Colony, Delhi
When - 5.30 p.m.

I look forward to seeing you this Friday at the PILSARC Library at 5.30 p.m.,

Warm regards,

Rashmi Raman
Senior Researcher,
PILSARC

--
Public Interest Legal Support and Research Centre,
A - 131, New Friends Colony,
New Delhi - 110025
Telephone +91 11 2684 1079 / 2682 2525
Email - pilsarc@gmail.com

PILSARC Friday Talk Series - The Babri Masjid Debacle, 17 September 2010, 5.30 p.m.

2010-09-15T23:10:00.000-07:00

For this week's session of the Friday Talk Series initiative launched by the Public Interest Legal Support and Research Centre, we focus on the Babri Masjid question, in the wake of the imminent judgement to be pronounced later this month, and identify the legal and socio-political context in which the dispute is grounded.

Topic - "The Babri Masjid Debacle"
Time - 5.30 p.m.
Place - Library (Basement), The Public Interest Legal Support and Research Centre, A-131, New Friends Colony

PILSARC's Friday Talk Series are designed as an informal gathering where all participants are encouraged to speak their minds and engage in robust debate. All are welcome.

Position available - Litigation Junior

2010-09-08T04:46:00.000-07:00

One position available for a Litigation junior to a renowned Senior Advocate of the Supreme Court of India.

What we offer - Excellent research environment and interesting work. Remuneration Rs. 20,000/- per month.

Qualifications - Law school graduate, prior work experience preferable, but not mandatory.

Should be willing to start work immediately and relocate to Delhi.

Send in updated CV and cover letter to pilsarc@gmail.com

Deadline for receiving applications - 20 September 2009

ATTENTION - The position has been filled

The Politics of Belgaum: How malleable is Indian Federalism?

2010-09-08T04:42:00.001-07:00

If the Belgaum agitation is taken seriously, India’s federated states will never acquire territorial integrity. The essence of Maharashtra’s claim is that all the border villages in neighboring Karnataka, where even a bare majority speak Marathi, should be handed over to become part of Maharashtra. Over sixty years these demands have been accompanied by violence, threats and the emergence of Pan-Marathi fundamentalist nationalism.

Belgaum is in the news again because Marathi politicians resent an affidavit by the Union of India of 2010 refusing to accept Maharashtra claims to Karnataka’s border villages. In 2004 Maharashtra filed a case against Karnataka in the Supreme Court effectively claiming 865 villages in Belgaum, Karwar, Bidar, Gulbarga in Karnataka on the basis of alleged linguistic majorities in these 865 villages. In Karwar, the claim for 301 villages is based on the claim that Konkani is a dialect of Marathi. Maharashtra’s claim rests on four principles: (i) the villages as a unit (ii) geographical contiguity (iii) linguistic majority and (iv) wishes of the people. Shorn of pretences, if Maharashtra’s claim to annex border villages in neighbouring states where there is a Marathi speaking majority were to be applied as a principle, inter-state border claims would never stop; and resurrected each time border villages show linguistic change. Movements of people across borders would be encouraged and villages colonized to create linguistic majorities to facilitate their annexation. Taking to its illogical conclusion, Indian federalism is invited to permit its States the indulgence of cross border conquest by linguistic head-count supported by noisy, even violent, politics.

It is really not necessary to go into historical controversies over recognizing linguistic federalism in India. Before independence the cause of linguistic federalism was espoused by the Congress’s sessions in 1920, and 1927, the Nehru Committee Report (1926), and the creation of Sindh and Orissa on a linguistic basis in 1936. After independence the Dar Commission and the JVP Committee of 1948 suggested status quo and caution unless “public sentiment was insistent”. This was not intended to be, but became, an invitation to agitation. In 1954-55 the States Reorganization Committee (SRC) recommended a basis for linguistic federalism including separate states also for Vidarba and Telengana – demands for which continue today. But the SRC did not elevate “linguistic (and cultural) homogeneity as an exclusive and binding principle overriding all other considerations, administrative, financial or political”. Even if the ‘wishes of the people’ were ascertainable, they were subject to the “larger national interest”. Linguistic federalism was not an absolute or exclusive basis for federalism.

Indian federalism permits new states to be created out of old ones with the scantiest of consultation with state legislations(Article 3). The absence of territorial integrity was never visualized as permanent. The territorial integrity of these new states was intended to be respected. These provisions were to creatively enable a multi-cultural nation to emerge from an alien empire and 550 odd Princely States. The basis of these revisional endeavours have been founded on language, culture, administrative convenience and peoples’ demands. The defining moment was 1956 when the States Reorganization Commission (1956) effectively responded to Potti Sreeramulu’s fast to death in 1954, overruled Nehru’s cautionary reserve and enabled Parliament to create Andhra, Kerala, Karnataka(then Mysore) on a linguistic basis. Later exercises were based both on language and culture to enable the creation of Gujarat and Maharashtra (1960), Punjab, Haryana (1966) and Himachal and the North Indian States (1971), Sikkim by accession (1975), Goa (1987) and the tribal states of Jharkhand and Chattisgarh (2000). Tribal areas have been designated within States to enable autonomy for these areas (Constitution’s 5th-6th Schedules). Union territories have been created for Delhi, Chandigarh, Pondicherry and various Islands. Questions loom large as to whether UP should be broken into several states, States of Vidarbha and Telengana be created and a mountain State be created out of Bengal.

Nobody visualized continuing border disputes. Maharashtra’s border claims are a way in which an uncompromising and fearful Marathi politics reinforces itself. Over 1955-6, the Maharashtra’s agitation led to 105 killings by police firing. Around that time, C.D. Deshmukh resigned as Finance Minister in support of Maharashtra’s claim. Many methods to resolve these disputes were tried: the use of the Western Zonal Councils (which failed), Committees from the warring states (which failed) and examination of Commissions headed by serving or retired judges (which succeeded).

The Justices Wanchoo (1952) and Mishra Commissions (1953) split Bellary to give three districts to Andhra and the rest to Karnataka. The case was decided on its facts and hardly authorizes compulsory splitting of districts by villages, a view rejected by the Union in 1966. This is equally true of Justice Shah’s efforts on Punjab and Haryana. The fact remains that the Belgaum dispute was referred to the formidable ex-Justice M.C. Mahajan who received 2240 memoranda and spoke to 7572 persons, visiting 17 places, rejected the village unit formula, relying on panchayat boundaries. Interestingly what the Commission presented was that between 1951 and 1961, the Marathi majority in Belgaum slipped into a minority, or bare majority in various areas, and increased in others – with Maharashtra adding and subtracting their claims based on the 1961 census. Demographic movements are inevitable. A right to movement and to settle in any part of India inheres in all persons and community. The Marathi speaking majority in 1951 in some areas had been reduced in 1961 (46%). Unhappy, with Mahajan’s report, Maharashtra resorted to agitational protest.

In determining these questions, do we go to the census of 1951, 1961, 1971, 2001 or 2011. Nothing could be more absurd than redrawing state boundaries after each census! The present agitation arises because of a Counter-Affidavit of 2010 by the Union of India reiterating its stand that “language (is) not the sole criteria” for determining boundaries and “the transfer of certain areas to Karnataka was neither arbitrary and wrong”.

Marathi politics tries to reinforce a false pernicious identity through uncompromising agitation. In 1996, 10 ladies from Belgaum started a hunger strike on the issue Chief Ministers of Maharashtra have kept the issue alive between 1997-2002. The Supreme Court case was filed in 2002. The Supreme Court cannot and should not determine these matters and strike down the 1956 and 1960 Reorganization Acts to unsettle settled demarcations, open Pandora’s box and create new border tensions.

The claim on Belgaum and other areas is part of a pan-Marathi nationalism. The obverse of this agitation is the campaign to threaten non-Marathis in Bombay so that even film stars have been coerced into submission.

The Shiva Sena and MNS claim to be trustees of the Maharatha cause to the hilt. Chief Minister Chavan was anxious not to miss the bus and made the absurd suggestion of making the disputed areas a Union Territory. The agitation will continue in the monsoon session of Parliament. If Chavan’s suggestion is talked through, is there a case for Mumbai becoming Union-territory to make it available for all?

India has a rich multi-lingual and multi-cultural federalism. Freedom of movement has enabled workers and business to travel to all corners of India. New states may and will be created to make Indian federalism more manageable. These border disputes which are fuelled by politically inspired jingoism must stop – now!

The Nuclear Bill - Confounding Confusion

2010-09-08T04:41:00.001-07:00

The Nuclear Bill
Confounding Confusion

The Indian Parliament’s most popular method of passing legislation is with sparse, or no, discussion. Democratic voices have to be media shrill and strong to register. In the case of the Civil Nuclear Bill (CNL Bill) the voices were strong.

The basic objection of the protestors was that having surrendered sovereignty to America under the Nuclear Deal, the Nuclear Bill played to the interest of foreign suppliers and Indian operators and others to cheat the people of India from just recompense. Remember Hiroshima. Remember Chernobyl. Remember Bhopal. The hue and cry led to referring the Bill to the Dr. Subbarami Reddy Committee on 13 May 2010 whom Vice-President Hamid Ansari accused of interpolation. It reported on 18 August 2010 with a dissent from Dr. Barun Mukherjee who pointed out that “many countries are not members of any liability convention and only 4 out of 30 members having ratified the 1997 convention.” He found the suggested changes to the present provisions “absurdly low”. Salman Pathak’s other dissenting view was that the Committee had failed to “keep the interests of the Indian people … as its core concern” and “unduly favour(ed) foreign suppliers”. The Committee heard the government Departments, visited Nuclear plants, was satisfied with the safety measures and heard some NGOs, Trade Unions, Business Associations and the Insurance Industry.

Passing this Bill was critical to show India’s good faith to America and other supplier nations. Compromises were worked out with the BJP, when they could not be forced on the Left. The CNL Bill broadly contains (i) liability and (ii) machinery provisions. Some 18 amendments were tabled, seven were accepted mostly over the liability provisions.

After the amendment, the Bill fails to exude a complete and comprehensive responsibility for accidents, victims, loss and livelihood. In the Bichri case (1995), following Oleum Gas (1986), the Supreme Court has laid down absolute liability (whether negligent or intentional or otherwise) for any and all damage due to escape from a hazardous unit. This is still good law; and woe-betide a Parliament that destroys this umbrella protection.
Liability Provisions

The Bill continues to shortchange liability and therefore responsibility. Some provisions are unoriginally salutary; some inadequate. (i) By making the Bill applicable to government owned or controlled by government (new Section 3A), private operators are excluded from the operation of the Act. It is an improvement only because present operators are government controlled and owned. But, with this and also the changed meaning of “operator”, the Bill vitally excludes future private operators from the Act. One problem is solved; another imbedded. (ii) Changes were made by the Committee in the definition clauses. The Health Secretary had wisely recommended that nuclear damage should include loss of life, injury and “immediate and long term health impact (Clause 2(f)(i)). Likewise ‘environment’ was to do be given a wider meaning (iii) The big change is in Clause 6 of the Bill is to empower the government to increase the liability from 300 SDR (Special Drawing Rights (SDR) equal to about Rs.2100 crores) if it wants. Then a graded and lesser responsibility is now introduced for different kinds of reactors and plants. Why this mambo-jambo? The Committee had suggested tripling the liability. Why not an absolute liability clause which simply says that the maximum liability shall be the actual damage caused. Why should the tax payer pay the amount in excess beyond the maximum? Further, the new change requires that, if necessary, the government will assume the liability of private operator, if in the public interest. Clearly, issues have been fudged. (iv) Suppliers liability was, and remains guarded. The Committee wanted the Indian operator (mind you, not the victim) to have the “right to recourse” against the supplier for any connected damage, but left the operator with the defence that if the damage was not intentional the supplier would not be liable. The BJP wanted this ‘intent’ defence dropped. However, the Lok Sabha passed the Bill with the ‘intent’ clause intact! What is not clear is what a “right to recourse” means? 10 years of litigation? Arbitration? In other words, the liability amendments short change peoples’ concerns, make a farce of the operators’ liability, deny absolute liability and let off the supplier for connected but not intentional loss.

Machinery Provisions

Some changes were also made in the machinery provisions (i) Most cases would go to a Claims Commissioner unless the government wants to send it to a Claim Commission. Good grief! Why? (ii) As for the composition of the Claims Commission is concerned, only the composition of the selection committee to appoint Commissioners is now stated (clause 20). But we are still left with the possibility of either a sitting judge being appointed or an advocate of 10 years standing (including a party hack!) as chairperson. For the other members, with the minimum age at 55 years, the posts are ripe for retired bureaucrats. These are cosmetic changes. (iii) The Lok Sabha rightly accepted a possible extension in the limitation (time to claim) to 20 years. But, it should have been left to the Commission or Commissioners to go beyond the twenty years if necessary (clause 18). (iv) There is nothing grand in the changes allowing compensation cases going to the writ or special jurisdiction of the High Court or Supreme Court (clause 35). The reason is simple. These jurisdictions cannot be ousted by Parliament even through a constitutional amendment! (L. Chandra’s case (1999)). These provisions are part of the unalterable basic structure of the Constitution. So, no big deal!

The parliamentary process is besieged with compromise. That is understandable. But to what extent? The government’s major concerns are those of the suppliers and insurers to the extent they impact on the supply of technology – fuel and so on. It fears that stringent provisions will dry out supply; and it must conform to international conventions even though these have been written by supplier nations, without attracting requisite signatures. We do live in a global world. Even with India advancing economically, it needs technology. To some extent, principles will be compromised. But that is not the issue. A sovereign parliament has sovereign responsibilities to its own peoples. The question is whether this Bill meets the measure of responsibility due to Indian victims? Or have these responsibilities been short changed. In this, Parliament has failed in achieving the right balance and sold its sovereignty for a song.

The liability provisions have been increased overall, but do not encompass recompense for the total effect. The graded changes for some nuclear operations mean that the limit has gone down in some cases rather than up. The residuary responsibility (which can be huge) is left to the government and the tax payer. The machinery provisions are unchanged. Dual optional machinery is created. The adjudicating incumbents could be anybody. The provisions are tailored for favoured lawyers and administrators. The judicial review to the High Court and Supreme Court already exists. The hype is meaningless.

The Nuclear Liability Bill is a bad compromise. All of the Committee’s suggestions have not been accepted. Parliament has been mesmerized by cosmetic changes. Even though, the supplier, operators and insurers have won, the American suppliers are not happy with this statutory mess. God forbid catastrophe; but should it come, we are as legally unprepared as we were for Bhopal.

2010-08-20T03:58:00.000-07:00

CONFERENCE ON REFUGEES IN THE NORTH EASTERN STATES OF INDIA – A REVIEW

The Public Interest Legal Support and Research Centre is organizing its biannual conference on Refugee Law and Policy. The conference focuses on the North Eastern States of India and seeks to explore the issues facing refugees in the North Eastern states of India in the context of Indian State Policy on refugees and the various state legislations on immigrants, discussed within the parabola of the need to devise an effective refugee protection regime in India that is consistent with the international practice in humanitarian law.

Date: Saturday, 4th September, 2010

Venue: Casuarina, India Habitat Centre, Lodhi Road, New Delhi

Time: 10 a.m. to 4 p.m.

Materials relevant to the conference will be made available on this space shortly.

We would like the conference to be a forum for international participation and for voicing the concerns that members of the international community may have on India's refugee policy.

Research scholars, academics, students and policy analysts interested in the issues typical to the North East refugee crisis may find attendance and participation at this conference insightful.

Contact: Rashmi Raman, PILSARC - ramanrashmi@gmail.com / pilsarc@gmail.com

Reservations Forever: Is there no limit?

2010-08-19T00:00:00.000-07:00

Reservations Forever:
Is there no limit?

Rajeev Dhavan

Far from being inspired by social justice, reservations have become a political toy to support vote banking. Over the last fifteen years, politicians have enacted five constitutional amendments to reverse Supreme Court judgments. In turn, the Supreme Court has lost its way – seemingly backing off, backing down, giving up.

The latest Supreme Court endeavour is Chief Justice Kapadia’s order (also for Justices Radhakrishnan and Swatantra Kumar) permitting Tamil Nadu (TN) to continue 69% reservation for Scheduled Castes and Tribes (SC/ST) and Other Backward Classes (OBC) under its 1993 legislation, but asking TN to review its decision on the basis of quantifiable data. This seems surprising because it was Justice Kapadia’s own judgment in Nagaraj’s case (2006) which jettisoned reservations within a strict discipline before reservations were made and not as a statistical afterthought.

The judicial effort to discipline reservations goes back to 1951, but in our context began its rigorous journey from Justice Gajendragadkar’s judgment in Balaji (1963) establishing the 50% norm and striking down Mysore’s 68% reservation. Apart from SC/ST, the reservation provisions for OBCs were designed by the Constituent Assembly for the ‘south’ states which had practiced reservation for decades to cover traditionally recognized OBCs in their states. But to the ‘old’ OBCs were added ‘new’ OBCs. The new OBCs were discovered in the ‘north’, especially in the states of Bihar and UP resulting in the triumph of the Yadavs – Laloo in Bihar, Mulayam in UP and others elsewhere. Now everyone is busy discovering new OBCs. While the Karlekar Commission (1955) did not want to open the OBC cauldron, the Mandal Commission (1980) was only too glad to do so. The Mandal report was a hot potato which the Congress avoided and V.P Singh embraced in 1990 with disastrous results. The hitherto docile ‘merit students’ exploded into riots. Enough was enough. Peace was restored. The Supreme Court contributed to devising the peace process by a balanced formula in the Mandal case (1992) reiterating the old Balaji 50% limit for reservations. No doubt the 50% limit can only be crossed for compelling reasons. But this going beyond 50% was really for tribal states and not as a general political excuse to garner votes, which it has become.

Meanwhile, Congress realized that it had been upstaged by other political parties in using and manipulating reservations for votes. From 1995 – 2005, it was party to the 77th, 81st, 82nd, 85th and 23rd constitutional amendments for SC/ST and OBC reservation – realizing that the SC/ST constituency was also slipping from its hands. This is self evident from the parliamentary debates – a fact fully analysed in R. Dhavan’s: Reserved (2008).

What is significant is that these amendments were challenged in Nagraj (2006) concerning reservations in the civil services, where the lead and only judgment was by Justice (now Chief Justice) Kapadia. Earlier in the 11 judge bench decision in TMA Pai relating to education, the court fixed 50% as the upper limit which could be crossed only if there were justifiable, compelling circumstances. In fact, it would be fair to say that every percent reservation over 50% needs total comprehensive justification.

As it happens Nagraj (2006) was a written by Justice Kapadia. It concerned examining whether the constitutional amendments of 1995 – 2000 violated the ‘basic structure’ of “equality”. Read between the lines, it was a brilliantly statesmanlike decision. It told Parliament that its amendments were valid since they did not guarantee reservations but simply enabled them. It told merit candidates that equality was part of the basic structure of the constitution and, therefore, any exercise of the power of reservation would be subject to the 50% rule, the creamy layer, extent of backwardness and demands of the efficiency, in accordance with the criteria of reasonableness and compelling necessity.

Why did Justice Kapadia not follow his own judgment in the case of the Tamil Nadu’s 69% reservation? It is true that the Tami Nadu statute had been given extra constitutional protection. But after Justice Sabharwal’s judgment in Coelho’s case (2007), this extra protection had been ripped down. The Tamil Nadu statute was of 1993. It was 17 years old. A mandatory exercise of re-examination was necessary. This was not done. Under Justice Kapadia’s own test, Tamil Nadu’s 69% was beyond 50%. No compelling necessity had been shown. The creamy layer test is that those SC/ST or OBC is that who are no longer backward are disentitled to reservation. This has not been applied to SC and ST in Tamil Nadu. No considerations of efficiency have been considered.

One way of looking at Justice Kapadia’s decision on Tamil Nadu reservations is that, Tamil Nadu’s law enables 69% reservation. Before implementation, the ‘Nagraj’ restrictions of 50%, creamy layer, efficiency etc. would apply with full rigour as a prelude to implementation. But this turns Justice Kapadia’s own Nagraj decision upside down. The Tamil Nadu statute was all ready for implementation. The 69% had been, and was, being implemented. None of the Nagraj tests were being applied. This, it seems that Tamil Nadu had a free run subject to judicial advice that it must examine the extent of backwardness. But if the 69% statute was declared valid by the Supreme Court, no High Court could ignore it and all governments would implement it. The cart was before the horse and reservations at 69% would remain where they were.

While all that I have said sounds full of technicalities, in fact it is not so. Few are against reservations in toto. I am not against reservations. They are necessary for social justice and to share the power of the state with SC/ST and OBCs. But we have to find a balance. Spurred on by vote bank considerations, politicians do not want to find a balance. It has been upto courts to do so. The 50% marker came in 1963. The excursion of the creamy layer came for OBCs in 1992 and 2006 for SC/STs. Efficiency was emphasized in 1992 and against 2006. Reservations in super-specialties, technical areas or the army are not permissible. Both, the imposing of reservations and the breach of the 50% requirements are subject to compelling necessity and reasonableness. The creamy layer test was absolute. Efficiency had to be considered. Developed for 5 decades, these tests provide a balance so that the competing claims of reservations and merit are satisfied. Politicians abhor this balance because it interferes with their political vote-gathering largesse.

The 69% quota means that merit candidates have only a 31% chance; and SC/ST and OBC candidates can also compete for these 31% seats. This violates equality of opportunity. It also gives efficiency a go-by by disproportionately discounting merit.

India’s Constitution has both political as well as justice texts. If the justice texts were not there, majorities in legislatures would do whatever they want in the name of a crude numerical majoritarianism without reserve. The reservation debate has exhausted itself. Tamil Nadu’s 69% statute has been wrongly declared valid. But all is not over. The Supreme Court and Madras High Court can still insist that the amendment should not be implemented without looking at backwardness, the creamy layer and efficiency in terms of reasonableness and compelling necessity. But will they?

Lokayukta: A damp squib

2010-08-18T23:59:00.000-07:00

Lokayukta: A damp squib

Rajeev Dhavan

Is the Lokayukta which was designed to expose maladministration and corruption a damp squib? Karnataka’s Lokayukta, former Supreme Court judge, Santosh Hegde’s attempted exposure of Bellary and other mining scams revealed losses to the exchequers of Rs. 80,000 over five years. The affected powerful Reddy’s and others hit back. On 23 June 2010 Hegde resigned, rejecting the Governor and Prime Minister’s request to resume his post. But on the BJP leader L.K. Advani’s persuasion returned as Lok Ayukta on 3 July. Political partisanship mars the political objectivity of a Lokayukta.

Hegde was never a Hercules, but undertook a Herculean task which eluded his otherwise undistinguished but upright career as lawyer and judge. The immediate cause for Hegde’s resignation was the suspension of R. Gokul, Deputy Conservator of Forests who Hegde deputed to investigate the disappearance of 5 lakh tons of iron ore impounded at Belekiri and Karwar ports. Hedge resigned because felt he could not protect his own investigators. His resignation was an embarrassment. His Lokayukta predecessor, Justice Venkatchala had conducted many ‘televised’ raids, but no prosecutions were followed under the Prevention of Corruption of Act 1988. The shameless were not ashamed; the corrupt not brought to justice.

Are Lokayukta’s or Lokpal’s (called Ombudsman or Parliamentary Commissioners in other countries) simply a window-dressing with no cutting edge? Of Swedish origins and popular in some European states, it was grafted onto a parliamentary democracy in New Zealand (1962), England (1967) and Australia (1976). India’s, story is sadder. After recommendations by Nehru (1962) and the Administrative Reforms Commission (1966), attempts to introduce a Lokpal for India’s Union government failed in 1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001. Why? No body wanted it. The bureaucrats wanted it to monitor politicians. Politicians wanted it, to monitor bureaucrats. The Prime Minister did not want to be included at all. Should the Lokpal investigate only ‘corruption’ or also ‘maladministration’? Every Lokpal proposal was successively derailed by successive Union governments.

Meanwhile Lokayukta’s were established in many states including Orissa (1970, but abolished 1993), Maharashtra (1976), Bihar (1973), Rajasthan (1973), MP (1981), AP (1983), HP (1983), Karnataka (1985), Assam (1986), Haryana (1996), Delhi (1996). Mostly Lokayuktas examined complaints against political functionaries; the–Upa–Lokayuktas against the civil service. We know little about how these State bodies work. The public is kept in the dark.

But the record is abysmal. In 1976, two ministers found guilty of malpractice countered by filing cases in the High Court against the Lokayukta (a former Chief Justice). Allegations in court were made against the Orissa Lokayukta for being pro-government. Despite clear Lokayukta findings in the Bhopal land allotment scandal in 1982, the government did nothing. This was equally true of findings against ministers in MP (1983) and AP (1986). In Madhya Pradesh the much respected G.P. Singh resigned due to disrespect and inaction. In 1985, cases were filed against the Lokayukta to earn the ire of the Bombay High Court. Populous UP registered startlingly few complaints. Disposal is bad. In 1999, the Supreme Court asked why Lokayukta’s were not appointed in Bihar for three years or set up in other states. In 1999, Justice M.S. Sharma, former Lokayukta of Rajasthan, whose 70 odd reports against politicians were ignored, wanted Lokayuktas abolished. On 29 June 2010 Haryana’s Chief Minister refused information to his Lokayukta, Justice Sud.

Lokayuktas have become moribund institutions. Few complaints are filed. Many are kept pending, findings not acted upon. Hegde knew this before accepting the post-retirement post of Lokayukta in Karnataka to make the difference. As a judge, he could issue contempt notices, as a Lokayukta he is powerless. In fact, Lokayuktas do not have strong independent investigative machinery and rely on bureaucrats who can be pressurized by government, as exemplified by Hegde’s own investigation into the mining scandal. Second, the powers of Lokayuktas are only recommendatory. Cogent reasons are not required for rejecting Lokayukta recommendations. Third, the Lokayukta’s have not inspired confidence in the people who prefer using the ‘right to information’ to empower themselves into campaigns with media support.

Fourth, ombudsmen were designed for small countries where political integrity and public morality results in swift action by government and resignation by public servants. In India’s never-say-die politics, no one is guilty as long as they evade the final decision.

Fifth, at a deeper level, in a parliamentary democracy, ministers (and bureaucrats through them) claim to be constitutionally responsible to the legislature (Art. 75, 164), not to some statutorily propped up Lokpal or Lokayukta with recommendatory powers. In Indian political practice, this power to “recommend” is merely a power to “suggest”. Otherwise, it is argued the administration will be answerable to the Lokpal not to the legislature. The truth is that India’s politicians and bureaucrats hate being answerable to anyone other than themselves. They conspire to nullify Lokayuktas into an empty and unwanted experiment.

Sixth, in some senses, the National and State Human Rights Commissions (NHRC and SHRC) and other SC, ST and Womens Commissions are also in the Lokpal-Lokayukta-Ombudsman mould. The only difference is they deal with specialized areas of violation of human rights. Why does the NHRC work better as a human rights ombudsman? One reason is its prestige and governments fear of human rights violations being exposed. But there are other practical reasons for its partial success.

Under the Chairmanship of Justices Venkatachaliah and Verma, the NHRC asked for and obtained an independent investigation machinery firmly under its own jurisdiction. In the Hegde’s resignation case, the investigating civil servant was controlled by Ministers. The NHRC built up a rapport with Ministers and officials to ensure that the recommendations were treated as decisions not suggestions.

Seventh, what is missing from the armoury of Lokayuktas is an independent power to record FIR’s with the police and to prosecute against without the sanction of governments. Today bureaucrats are protected by the Single Directive(SD) even though the Supreme Court invalidated the SD in the Hawala case (1998). But to proceed further, even after investigation, trials require the government’s sanction. The law needs amendment so that corruption trials can proceed on the sanction of the Lokayukta.

As long as Lokayukta’s do not have the power of independent investigation, filing criminal complaints and sanctioning trials, the institution will just growl without efficacy.

But, back to Hegde’s resignation which woke up every body. Rejecting the advice of the Governor, Prime Minister and people from other walks of life, he withdrew his resignation on the advice of his ‘father-figure’ Advani who had to save the BJP supported government in Karnataka. Hegde claimed he relented for “no political reason, but because of my love and respect for Advani. Obviously, the Governor, Prime Minister and others did not command this love and respect. And what did the BJP offer? Only a more kindly and effective response to his work. But, it is be a constitutional usurpation for Advani to interfere with Karnataka’s governance. The style and substance of the ‘Hegde-Advani’ deal is unworthy. In 10 July 2010, BJP’s Karnataka government prepared only minor changes to the Lokayukta Act. Top bureaucrats are included, but ministers are beyond the Lokayukta’s jurisdiction who will have no prosecutorial powers. A miffed Hegde has gone on four days leave.

Hegde’s campaign started with glory, but ended with a tragic whimper. His remaining year in office will pass quickly.

Spare the Rod

2010-08-18T23:57:00.000-07:00

Spare the Rod

Rajeev Dhavan

P.G. Wodehouse’s quip that caning “stingeth like a serpent and biteth like the adder” cloaks the real face of corporal punishment in schools (CPS). It has no foundation in law. It is a barbaric practice with little justification. Unfortunately, there are too many wrongly perceived ambiguities in the laws applied by the various States of India. Teachers who inflict CPS need their head examined for the cruel pleasure they derive from inflicting pain on hapless children in the name of discipline.

What triggered off our present discontents is the suicide of a school boy, Rouvanjit Rawla, four days after he was caned by Sunirmal Chakravarthy, the Principal of La Martiniere Boys School, Kolkata. Evidently, the cane broke, but not the punishment. The fact that the Principal says he did not know the law applicable to West Bengal is unworthy. On 18 June 2010, after intense public controversy, the Board of Governors announced that CPS was abolished in La Martiniere. Meanwhile Principal Chakravarthy is vulnerable to civil and criminal action and possible dismissal from service as recommended by the National Commission of Children’s team which also canvases changes in the Penal Code to deal with caning specifically.

As far as West Bengal is concerned there was no ambiguity in the law. In Tapas Kumar Bagchi’s case (2004) there was a clear order by Chief Justice A.K. Mathur that (i) caning should not be resorted to as a corporal punishment (ii) the Director of School Education should circulate this and (iii) schools resorting to this shall be dealt with strictly by the State Administrator. At least, as far as caning is concerned, this legal message was clear as crystal. In Rekha Bharat’s case (2009) which was a well known cause celebre, criminal prosecution was continued in a case where the teacher’s whack on the head led to the death of the child. The judges spoke of how the statements in the “case diary were quite spine chilling...One has to rub one’s eyes to be sure whether it is a crime thriller depicting the tale of a sordid killer…”. So neither La Martiniere nor Principal Chakravarthy had a leg to stand on as for as their legal excuses for their actions were concerned. Apart from an apology, the decent thing for La Martiniere to do is to sack the principal, after due inquiry, and offer both apology and compensation of at least Rs.20 lakhs, if not more.

While the Calcutta rulings are on caning and punishment resulting in death, the issue needs to be discussed on the wider considerations of the rights of the child. The Delhi High Court through Justice Anil Dev Singh struck down the Delhi School Education Rules of 1973 which dealt with “corporal punishment”. Here caning was a part of the wider issue of corporal punishment in schools.

Why Justice Dev Singh was not elevated to the Supreme Court shows faults, bias and favouritism in our judicial appointments system. Along with other visionary judgments (such as those on elections) Justice Dev Singh looked at the gruesome reported instances, examined the life and liberty (article 21) and other constitutional provisions and laid down that the infliction of pain on students through “light punishment” was also impermissible as it could “degenerate into an aggravated form”.

The Delhi Judgment rightly isolates and injuncts “physical pain”. But, after the judgment, a wider approach was implanted in section 23 of the Juvenile Justice Act, 2000 to discipline those incharge of or with control over children to protect the latter from unnecessary “mental or physical suffering”. To inflict this could attract jail upto 6 months plus unlimited fine. This is the more incisive test. In Tyrell’s case (1978) the European Court in Strasbourg discussed this threadbare. Birching was found to be a degrading punishment. But, the Court added to the repertoire of tests by further examining the mental consequences of humiliation to the child. Any punishment attracts humiliation. Shame and public obloquy come to all but the shameless. The test of the European Court was that the “humiliation or debasement involved must attain a particular level … other than the usual humiliation” flowing from being found guilty. So what was degrading was not just the painful assault, but also excessive.

Teachers, even parents, may regard this ‘humiliation’ test as going too far. Imagine a teacher who has chalk or a stone thrown at her. Prohibited from physical corporal punishment, is she precluded from sending the thrower to the corner or to stand on his chair with a dunce cap on his head? This would surely be humiliating. But, here too, some element of proportionality would decide the issue. Discipline yes. Pain no. Punishment – no more than necessary. I think the test in Section 3 of the India’s Juvenile Act of 2000 puts it well by injuncting “unnecessary mental or physical suffering” by threat of jail or fine. Teachers are allowed to impose discipline but they cannot be cruel. The nexus between Rouvanjit’s caning and his suicide cannot be wished away because the school’s Diocese Board says so.

The La Martiniere incident represents a legitimate middle class outrage. But why do these issues achieve public notoriety only when well off kids are involved. Children in cheap government and other schools are cut, bruised, damaged, killed and driven to despair by cruel and humiliating punishment every day. We cannot also overlook beatings and humiliation in the place of work. Parents feel free to punish their children – sometimes without remorse on a day to day basis. Both civil and criminal liabilities lie. Any lacunae are now plugged by the Section 23 of the Juvenile Act 2000 which is not restricted to schools but “whoever has the actual charge of or control over a juvenile or child”. This includes parents and employers alike. Parents cannot claim ownership of their children. 26 countries restrain parents and 112 countries forbid schools from imposing corporal punishment.

Unfortunately, even if the law speaks with protective concern, it remains immobilized. Children cannot go to court. Few want to go to court for them. Children cannot be protected through law circulars. The National Commission on Children banned corporal punishment in school on 9 August 2007 on the basis of the Delhi judgment and by wrongly assuming it was decided by the Supreme Court. There is little follow-up to the Union Ministry letter of 17 December 2007 against caning. The letter itself shows ignorance of Indian law but relies on the National Policy on Education (1986) and article 28 of the UN Convention of the Rights of the Child requiring school discipline to be imposed “consistent with the child’s dignity”. India’s legislation of 2000 is wider and applies to parents, guardians, store helpers, the chotus who work in tea shops and dhabhas and those in factories and hazardous trades. What is needed is a machinery of enforcement including social and legal support.

The La Martiniere incident has ruffled middleclass sensitivities. But while India pampers its richer children and pedigree dogs, most of the kids in most schools are unprotected by society and the state. The legislation is inadequate. The courts do not convict. And worse of all, the callous treatment meted to most children continues hidden from the public domain.

The Case of The Red Sari

2010-06-22T01:08:00.000-07:00

THE ISLAND OF MR. MORO
OR
THE CASE OF THE RED SARI
BY RAJEEV DHAVAN

Javier Moro’s El Toro (The Red Sari) has already entered a life of anticipatory censorship and free publicity even though it has not been published. It is a factualized fiction about our contemporary leader, Sonia Gandhi, who obviously does not want it published. Were this not the case, her lawyer Abhishek Singhvi would not be shooting his legal mouth in what appears to be partisan Congress aggression. The idea is to pressurize Moro with the threat of a civil suit or criminal defamation case or both. Ever since two professors in Denver coined the word ‘slapp suit’, such threats have been portrayed as forms of legal terrorism. On 6 June 2010, an undeterred, and unimpressed, Moro accused Singhvi of terrorism and threatened to sue him. This is one of these cases where few have read the book, but have no hesitation in joining the crusade against Moro to save the leader. I guess they will have to invoke Shahabuddin’s defence to his attack on Rushdie’s Satanic verses: “You don’t have to read it to know it is filth”. If this is the way we want to run the country, we need to introspect.

When Sonia Gandhi entered the public domain, she placed herself in a position of being cartooned, lampooned, written about, caricatured, criticized and portrayed as good and evil. Was it not Soniaji who awakened the slumbering Vajpayee in the with the stinging suggestion that people of his persuasion on certain mateters were traitors or desh drohis. The more public a person you are, greater the possibility of jibes, sleazy portrayals even in fiction and untruth. Morarji Desai lost his case in America on the basis that even if what Seymour Hersh had said was not true, anything said in good faith and promoting public discourse of a public person was not actionable. We have not fully accepted this approach.

Suggestive innuendoes make–believes, fact and fiction parade our imagination. Let not even the wise Yudhishtra cast the first stone. If Moro tries and wants to get into the mind of Sonia Gandhi, especially when she was the bahu of the reigning Queen Empress, Indiraji and consort to her successor. Is nothing sacred? It is precisely because it is sacral that it needs to be explored.

The book has not even been published in Indian territory. The battle for pre-censorship has begun – presumably at Sonia Gandhi’s bidding. So far she is quiet. Her actions in authorizing legal notices talk. Let her speak or forever hold her peace. If she is silent, she must meet the moral and social charge of censorship.

At present she speaks through the legal mambo-jambo of her lawyers. As de facto ruler of a de jure coalition, she has three legal and one illegal option. Legally, she can persuade (command?) her government to impose a customs ban – invoked from time to time from Katherine Mayo’s Mother India to Salman Rushdie’s Satanic verses. The film Nine Hours to Rama was similarly censored by anti-import laws. Examples from the Nehru, Indira and Rajiv eras display such a misuse of laws. Perilously posed in coalition circumstances, Soniaji would hopefully forbear. The second legal option would be to ban and forfeit the book on the basis that it is seditious, divisive, communal obscene or a threat to the sovereignty and integrity of India. Indira claimed she was India. Soniaji would not be that audacious. In any event, the book has not been published; and there is nothing to forfeit. The third legal strategy is to wait for the book to enter India or show that it is about to enter India, file a case for injunction or stay order (as it is popularly called) to stop entry into and publication and distribution in, India. This is called the slapp suit, which defenders of free speech find reprehensible. And, yet, courts willing grant this as Justice M.K. sharma did in the case of a book on Sikkimese Buddhism only to be reversed by Justice Mudgal’s bench in appeal. But such tactics are a show-stopper. The Supreme Court Bar Association (through lawyer K.K. Venugopal) injuncted Kuldip Nayar’s India House through the Delhi High Court. Likewise the publication Khushwant Singh’s memoirs were stayed at the instance of Menaka Gandhi. The story is as endless as it is shameful in the eyes of a free speech activists. Moro has faced such censorship when the Jabalpur High Court stopped publication Lapierre, Shekhar Malhotra and Moro’s It was five past midnight.

Now, we come to the illegal option which is even more omnipresent in India, and contrary to what Arun Jaitley thinks, runs across the political spectrum. This option would invite the Congress lumpen to intimidate everyone. The Sangh Parivar smashed up the Bhandarkar Institute where James Laine worked and destroyed galleries with Hussain’s, and other, paintings. We now know that the Parivar can rent thugs to terrify beer drinking girls in Mangalore. All too painfully, we also know that Bal Thackeray has set up his own brand of censorship in Bombay, now Mumbai. I would sincerely hope that Soniaji would not pursue the illegal option.

The controversy had proved to be a bonanza for Moro and his publisher. Thousands of publicity pamphlets and tons of advertising could not have given the book the publicity and notoriety that it has achieved. This is crores of rupees of free publicity. The book is already in the public domain. It has been translated into Italian, French and Dutch. The English edition is ready. When Spycatcher was injuncted by English judges, since its contents were already in the global domain, the Daily Mirror did a banner headline calling the judges “You Fools!” This is not necessarily what Indian papers should attempt but expresses a sentiment that where the cat is already out the book, (or the egg has already been scrambled – whatever the choice of metaphor), it is futile to injunct its publication which dates back to 2008. Indian judges will not be as tolerant to such a media denigration Clearly, intimidatory tactics were reserved for India. The unshakeable, Abhishek Singhvi, is relentless. He claims there are more than 20 examples which or not substantiated and are in inverted commas – conversations (some in the head) which Moro could not be privy to. But the biography is a fictionalized account reconstructed by Moro’s mind. Moro agreed that the book contain a disclaimer that this biography is not authorized. Like images in Plato’s cave, it is Moro’s glimpse of fictionalized reality, not Soniaji’s experiments with truth. Since the book is already in the public domain (and more so because of Singhvi’s legal strategy) injunctive relief should be refused. So, the issue will be quantifying damages. Foreign publishers in India tend to back down when faced with legal threats. Moro and Roli Books may not. But they may agree to more disclaimers, deletions and the like.

Soniaji claims to be, and should act as, a statesman. She should ignore the book in one of those flashes of wisdom that should guide the best in the best of us. An Arab proverb reminds us of that wisdom: “Dogs may bark, but the caravan passes by.” Moro is not canine, but he has barked. Let Soniaji’s caravan pass by.

The Bhopal Gas Tragedy

2010-06-07T23:58:00.000-07:00

DEATHLY GAS – THE BHOPAL TRAGEDY
RAJEEV DHAVAN

One generation has gone by. Twenty six years after the fatal gas release of methyl isocyanate on 3 December 1984 in Bhopal 15,000 died, 8,00,000 were exposed to the gas and genetic defects will be handed down inter-generationally. Oddly, Carbide Chairman, Warren Anderson, was arrested in Bhopal but released the next day on 4 December 1984. Carbide’s strategy was evasive. First, it got India’s Supreme Court (SC) to reduce the charges to causing death by negligence to limit punishment. Second, in 1989 the infamous deal included exculpating Carbide from criminal proceedings altogether. Mercifully the Supreme Court lifted the criminal immunity it gave to Carbide in 1992. Third, Carbide (US), denied criminal jurisdiction to India. Fourth, Anderson remained a proclaimed offender. In 2004, Anderson extradition was refused by the US.

The trial, thus, became an Indian affair. With Anderson excluded, 9 UCIL officials – 1 having died during trial – were Indians. Unfortunately it is the Supreme Court which reduced the charge to death by negligence carrying punishments upto 2 years or fine or both (Section 304A). Otherwise corporate liability would have been tested under culpable homicide amounting to murder carrying imprisonment for 10 years (Section 304 Part II). Can a person knowing that death would be caused be pronounced merely negligent? There was more to this case than was permitted to surface.
The multinationals always win, leaving the nationals to take the blame. National corporates resist liability. But few laws in the world give immunity to corporates. Under Indian penal law, a “person” includes corporates and collectivities (Section 11). The Standard Chartered case (2005) tried to settle the law to impose corporate liability by way of fine even where the mandatory sentence is imprisonment. In the Bhopal case, the corporates are missing. It is the officers who have paid the price.
We do not have an effective law against corporate liability, against Indian or multinational corporates even, and especially in cases of ‘mass disaster’ where the killing could have been anticipated but profits were zealously pursued. Multi-national enterprises are gifts to the companies of the North nations to play with and exploit the resources and people of the South even if this results in a killing spree. In the first place, corporates offences relating to hazardous activity of the Bhopal kind have already been treated as cases of absolute liability under the civil law. In criminal law, they should be treated as cases of strict liability with the accused (including corporations) having to show lack of fault. Second there should be a law to inculpate multinationals who control, are in charge of or involved in the activity or its beneficiaries. This has been much mulled over but not enacted due to national and multinational pressure. Greed and profits without full responsibility is not acceptable.
As far as the present verdict of 7th June 2010, it has a design fault perpetuated by the SC which has much to answer in this regard. In September 1996, Justice Ahmadi changed the charges to death by negligence which carried imprisonment upto 2 years instead of 10. As late as 2009-100, Abdul Jabbar of the Bhopal Gas Peedit Mahila Udyog argued that defence witness, T.R. Raghuram, had shown that Warren Woomer (UCIC’s manager) had ordered the shut down of the refrigeration system in 1982 and was fully in charge. Without support from CBI’s counsel, Jabbar’s application was rejected by the Bhopal Court because the Supreme Court’s order of 1996 had tied its hands. This means that the Bhopal Court could order upto only 2 years imprisonment instead of 10 years. This cross has to be borne by the Supreme Court, along with its handing of inadequate compensation in the civil case.
This brings us to the question of the fine, which even on the reduced charge of death by negligence (Section 304A) was unlimited. Now 8 lakhs (one each) is to be collected from 8 persons. Was this the promised end? 8 lakhs of criminal liability for misery by mass death, injury, incapacitation and genetic disorders over a period of almost 26 years. A figure somewhere nearer 10-50 crores would have been appropriate even if the punished claim impecuniosity. The message that this sends out to corporate managers is that the air at the end of tunnel is not financially turbulent.
But, why was the trial delayed even after 1996. Contrast Kasab’s trial in the attack on Mumbai. When India’s justice system wants to work, it does so. When it wants to devote its time to Reliance squabbles, it does so. But cases like Bhopal are given low priority.
The present Bhopal verdict decided what was expected. The Court’s hands were tied by the Supreme Court lowering the charge in 1996. The punishment could have been higher. The multi-national went scot free. The absconder, Warren Anderson, sips tea in New York.

Air Disaster and the Law

2010-05-29T23:43:00.000-07:00

AIR DISASTER AND THE LAW
RAJEEV DHAVAN

Can Indian law, its lawyers, the public interest law movement and legal aid system cope with the misery of a disaster? What remedies are available to the victims of a disaster?

On 22nd May 2010, an Air India plane crashed in Mangalore. 158 persons were killed. Air India (AI) is a financially diseased airline. Discounting the fact that AI’s Canada’s flight of 1985 which was bombed by the Sikh terrorists, AI has an abysmal record including crashes in the Arabian sea in 1978 (213 killed), in Mumbai 1982 (17 killed), in Ahmedabad (1988 – 124 killed), Bangalore in 1990 (92 killed), Imphal in 1991 (69 killed), Aurangabad in 1993 (55 killed), Patna in 2000 (Alliance Air – 60 killed), Mangalore in 2010 (158 killed).

To this may be added the design faults. The Mangalore Airport was created in 1951. Manmohan Singh’s plane could not land there in June 2006. The “table top” runway was reincarnated in a new 2450 metres replacement. Its new terminal building of 2009 is useless to those who die while landing. India has now other table top vulnerables.

Who is responsible? AI certainly. But also the Airport Authority of India and the government. In the Bhopal disaster case of 1989, the Supreme Court placed the government in the position of parens patriae. What is the big parent going to do? In the Air India disaster (1985), Justice Kripal’s special report was sidetracked in favour of business, treating the victims’ predicament as collateral. The ‘terrorist’ angle escalated into drama. The victims were paid routine sums. The ‘Bhopal Gas Tragedy’ led to a much criticized settlement on 14 February 1989, resulting in disbursements with more drama than substance. In the ‘Uphaar’ case the total sums were not sufficient. When Ansals refused to pay, I resigned as their lawyer. But in the Tata Jamshedpur Fire case their counsel left it to the court; which left it to the ex-Chief Justice Chandrachud who dispensed funds of limited significance. In the Punjab Swimming case, the sums were equally dispensed by an intuitive approach by the Supreme Court, which lost the woods for the trees. India’s disaster law is badly trapped in the jurisprudence of common law and motor vehicle cases. Justice Ravindran’s Supreme Court judgment in the Sarla case (a motor vehicles case) sought to standardize death cases by a formula which reduced the damages for death to penurious sums. His reason that ‘formula’ justice would result in immediate payments by insurance is remote from reality.

The response to the Mangalore disaster was typical. Sympathy was offered. Dead and wounded were carried to the destinations. The Chief Ministers of Kerala and Karnataka offered help and support. In honour of the victims two days mourning was declared in Kerala. Ex gratia sums were speculated. This is the routine Indian response to disaster.

Where have the lawyers gone? India’s PIL movement claims great victories. However, it is missing in ‘disaster’ cases – with the possible exception of Bhopal Tragedy, where 25 years later the case lives on. In America, lawyers who go for death cases are “ambulance chasers”, who demand a large percentage of the damages. But PIL and legal aid lawyers are not ambulance chasers. They are expected to perform a public service. As a legal case, one choice of jurisdiction is India – others being place of issue of ticket, domicile or place of business of airline and so on. Earlier, India incorporated the Warsaw Convention 1929 (amended by the Hague Protocol 1972) in the Carriage by Air Act 1972. Now India has joined the Montreal Convention 1999 (signed by 95 countries). What rules will prevail? The old rules limited death liability to $20,000 (or Rs. 9 lakhs) and for baggage $20 per kg. The new Montreal rules increase all this 7 times to $1,40,000 in death cases and maximum liability for lost baggage approximately to $1,400 per passenger.

This is a test case for India. In the Patna Alliance case, the compensation was Rs.5 lakhs – later raised to Rs.7.5 lakhs. The Gujarat courts raised the stakes slightly for the Ahmedabad crash of 1988 – with some issues unresolved. Air India’s major concern will be its damages for the aircraft. Its fleet is insured for $8.59 billion, with an annual premium of $24.3 million. The insurance is backed by a consortium of insurers – traceable to London, with General Insurance Corporation (GIC) stake of 14% of the portfolio. After some haggling, the aircraft will be replaced, but the dead cannot be. Already, the insurance people are seeking to apply the motor vehicles and common law formula based on loss of income and number of dependants. This is Justice Raveendran’s Indian Supreme Court formula to lower damages and routinize low sums on payments. The common law (which our courts follow) has always favoured the rich. The value of an Indian life (even on international travel) is devalued. The unwritten placard on airplanes should say: “If poor from a poor country, your life is valueless to us”.

For the Mangalore air crash, India has to decide whether to follow the Montreal Convention and pay minimally. This is an important decision which insurers, corporates, government and airline will try to short change. Defenseless victims’ families may have their lawyers also take them for a ride. To whom should the victims’ families turn? Given its past record, the Indian legal system may fail them, unless someone takes an activist interest in their predicament. India’s public interest law is very selective in its approach. Disaster resulting in death should not further be perpetuated by legal disaster.

If India wants to be fair to the Mangalore victims, it should ask Air India and its insurers to pay at least $1,60,000 or Rs.75 lakhs or so. This should be minimum for each passenger. This should be the absolute liability figure for Air India. But there are also gross design faults and other negligence of the Airport Authority; for this, a round figure of $2,00,000 should be the minimum amount.

But will this happen? Most disaster cases get settled. This is true of Dalkon Shield, Agent Orange, Bhopal, Thalidomide and many others. The airlines and insurance companies use the best lawyers to fight back with legal brownie points. Bhopal had Nariman! Each brownie point costs lakhs. What we need in this case: (i) A clear statement by Minister for Civil Aviation (Praful Patel) committing Air India and the government to a $2,00,000 per person figure as a minimum figure; (ii) Air India needs to carry the insurance companies with it; (iii) The Union Ministry, Bar Council of India and the National Legal Aid Authority of India should approach a group of lawyers to provide full legal aid and support; (iii) A Public Interest Litigation (PIL) in the Supreme Court should monitor this.

Unfortunately in the past, an Indian life has been treated as having a dramatically lesser value than that of a person from powerful white nations. Indian governments and companies struggle to limit liability. International travel should mean international rates for all. India lacks the will to deal with disaster and death, except with funeral ceremony. For once let us align entitlement with responsibility.

Indian law is hopeless in dealing with disaster. Its disaster makers get careless. AI needs to learn many lessons. Recently, I saw a AI plane on the tarmac. Its tyres were bald. Typically, playing with disaster. If so, honour the victims with their due.

Sacking Governors

2010-05-20T23:43:00.000-07:00

Sacking Governors
Rajeev Dhavan

The Supreme Court’s judgment on governors in B.P. Shinghal’s case (2010) was welcomed. But it is not enough. The legal controversy revolves around the Governors being appointed (a) at the President’s pleasure to be sacked when the Prime Minister wants or (b) for the guaranteed term appointment of 5 years. The Sarkaria Commission (1988) revealed that between 1947 to 1986 out of 154 tenures, 104 did not complete their five year term! The merry-go-round has continued. The Bhagwan Sahay Committee (1971) did not tackle the issue even though Governor Dhavan raised it. The Sarkaria Commission shielded away from giving Governors security of tenure. The Constitution Commission recommended a fixed five year term with removal only by impeachment. In the Constituent Assembly, Ambedkar’s summary response was that prescribing reasons for removing governors was a matter of detail.

The Supreme Court examined the issue with legal detachment, overlooking that successive Union governments treated the Governor as an agent, saboteur and doormat to be dismissed at pleasure. Even government peons have better protection.

The Supreme Courts response was half-hearted. It gave priority to the “pleasure doctrine” over the constitutionally prescribed 5 year term. It failed to restrict the compelling reasons for removal to physical/mental disability, corruption or conduct unbecoming. It refused to require reasons for removal. It failed to accept its role of rigorous judicial review. In other words, the Supreme Court recognized the problem but failed to resolve it. Governors will continue to be as vulnerable as they were before, to be removed for silent reasons. The Court also lost sight of the Constitution Commission’s recommendation for new collegiate appointment systems so that arbitrarily appointed governors are not arbitrarily dismissed.

Disappointment increases when we realize the Governor is a head of State. He is not a beck and call appointment to be used and abused at pleasure. The whole system needs to be changed by constitutional amendment.

Narco Tests - Supreme Court Falls Short

2010-05-15T23:40:00.000-07:00

NARCO TESTS – SUPREME COURT FALLS SHORT
RAJEEV DHAVAN

In the last days of the reign of Chief Justice Balakrishnan, the Supreme Court delivered a number of significant judgments including on Governor’s tenure, Khusbhu’s free speech, Reliance, the tribunal system, the validity of the panchayat amendments and, of course, the use of Narco tests. The Narco judgment of 5 May 2010 took over two years; and is painful to read because of its cut and paste abstractions from lower American courts. A jurisprudence based on imitating cosmopolitanism seems to continue to mesmerize Indian courts with neo-colonial insistence.

The narco test became legally controversial. It was upheld by the Bombay and Madras High Courts in the Dalmia and Telgi cases. Police all over used Narco tests in the Bombay Train blasts, the Nithari and Arushi (Delhi), Beer serial killer (Mumbai), Suhrid Dutta and Bauria (Kolkata), and the Sister Abhaya cases – all lurid tragedies excited into the public domain. It has been used against gangs (Bongaon case of an alleged ISI agent) and terrorists (Malegaon bomb blasts). On 3rd May 2010, a Rajasthan court permitted narco tests against Devendra Gupta, accused in the Ajmer Blast case. This was one day before the Supreme Court judgment which unconstitutionalized the narco test. The Delhi High Court, in the Maoist Kobad Ghandy case, preferred to wait for the Supreme Court to decide the Narco case. In other words, legal chaos reigned.

But, the above examples also indicate that in dramatic, high-profile cases where the police are under pressure to show immediate results, narco is used to portray guilt to satisfy the public’s thirst for news, revenge and populist justice. ‘Guilt by narco’ rends the air before the trial has begun. There is little sympathy for murderers, serial killers, terrorists and bomb-arsonists – even if falsely accused. Narco plays to the gallery. The second cousin of the Narco test is the lie-detector.

The problems with Narco are two fold: (i) the first is whether these tests are credible and reliable; (ii) the second is whether such invasive tests are a violation of life and liberty, in that they invade a person’s body and being contrary to article 21 of the constitution; and, the protection of every accused not to be made a witness against himself (article 20(3) of the constitution).

The various lie detector tests have been used for criminal investigation, espionage, employee screening and so on. These tests show the manner in which the body shows signs of physiological anxiety through sweating, pulse rate and the like when subject to interrogation. In other words, if you sweat and the body seems anxious, you are a liar. The ‘cool’ criminal will pass this test with aplomb. Research throughout the world – especially reports from US (2003) and UK (2004) – show the test to be unreliable. Even criminals churlishly say, “Give us a lie detector to prove our innocence”. Indeed, in an American case, it is the accused who wanted a lie detector test to prove his innocence. The Supreme Courts of the US in Scheffer (1998) and Canada in Beland (1987) found these tests to be unreliable. In fact, the use of the lie detector test is a cruel joke that plays to the public imagination as truth, when it is nothing of the sort.

The second and third tests are the narco analysis and brain mapping. Both are invasive and plant things into a person to loosen their minds to make a confession or make their brain render evidence against them. In Narco, a truth serum (like scopolamine) induces a hypnotic trance and, allegedly the truth pours out from the inner consciousness. We need not go through Balakrishnan CJ’s super reliance on American lower courts; or examine the retrograde US Supreme Court judgment in the Arkansas case (1987) which held that hypnotically-refreshed testimony is admissible. What weight do we attach to this jungle of US cases? Brain mapping is no less invasive. It relies on ‘P300 Waves test’ to show ‘event-related brain potential (ERP)’. Just because we give acronyms and numbers for tests to disguise their inadequacy, the speculations of neurology, injections and probes cannot reify such prodding into scientific objectivity – even if a future ‘Brave New World’ may be induced to think otherwise.

But beyond reliability, lies the question of ‘forced incrimination against oneself’ forbidden by our Constitution. Cases have to be proved by facts, not induced confessions. In 1954, India’s Supreme Court gave broad protection against self-incrimination. An eleven judge bench in Oghad’s case (1961) permitted handwriting, signature and finger-hand impressions as not being examples of self-incrimination. This was extended to urine and blood samples. Even if giving a blood sample is physically invasive, it was permitted because it does not force confession but simply states a fact as to the blood type. Nor can we ignore Nandini Satpathy’s case (1978) that suspects are not accused – and both have a right to silence.

With all this behind them, the Supreme Court in the Narco case (2010) should not have taken over two years to deliberate and decide that lie detector, narco and brain mapping tests are invariably outlawed by India’s Constitution. But, the Supreme Court made a tragic mistake. Having outlawed involuntary tests, it decided that if a person wants to take these tests he can do so, under conditions of legal advice and magisterial supervision, without the confessional outcome being admissible. In criminal cases, even voluntary acceptance of these tests should not be permitted – especially if they cannot be admitted into evidence. What would be the point? This is India. People can be forced into voluntary confession. Police will force confessions under threat and the accused will have to pretend that it is voluntary. Having decided that narco and other tests are constitutionally invalid, the Court should have stopped both voluntary and involuntary tests. The wood was lost for the trees.

This is equally true of the NHRC’s guidelines followed here. I remember writing an opinion on this for NHRC, for the, then, Chairman Justice Venkatachaliah. The reason why guidelines were issued was because the NHRC could not invalidate these tests, and chose only to discipline them. But the Supreme Court is the highest constitutional authority. It has the power to invalidate unacceptable practices. People may say that consequentialism requires that individual rights shall give way to the public interest in tracking down dangerous crime. But ‘truth’ cannot be established by unreliable, evasive and invasive methods simply because a media fed public opinion thinks it represents the public interest, which, alas, must also include defending the possible innocence of an accused.

Lastly, there are civilization questions. Societies are known for the kind of proof they seek – both socially and for justice. Earlier, people walked over fire or were boiled in oil to prove their innocence. No less civilized is extraction by torture. Narco and other tests are barbarities of past, dressed up as science. Forensic investigation is permissible. Barbaric invasiveness is wrong – both if it is without consent or given voluntarily. The same science that brings many goodies, also, lends itself to inhuman nonsenses.

Split the Supreme Court

2010-05-11T23:45:00.000-07:00

Split the Supreme Court
- Rajeev Dhavan

Designed as a Supreme Court (SC), it has now become like a High Court (HC). Its jurisdiction is too wide, its jurisprudence too unwieldy. Drowned by with arrears of cases, its pivotal constitutional work suffers. Its 50,000 cumulative pendency may be nothing compared to 38 lakh arrears in the HCs and 3.6 crores in the Lower Courts.

Our justice system has become something of a lottery. The SC contributes to the lottery. Judges working at breathless speed cannot deliver an even handed and consistent justice. It does not matter how hard the SC judges work. They are drowned by it. Desperate measures have not made a dent. Today, some benches (notably Justice Katju’s bench) dispense quick justice when the judges think they have understood the file without fully reading it. Quick intuitive justice is no justice.

Despite this, the SC surpasses itself. Constantly in the news, it decides issues of national significance. Its work is often likened to T20 cricket. If test cricket is played, it is always in a hurry. Under the circumstances, the judges have done well. But for how long, with what loss of quality?

The present strategy of increasing judges and hacking down pending cases is not the answer. The Court needs to split into two: a separate court of appeal and a constitutional court. Between the HCs and the SC, there should be a Court of appeal for all civil, criminal, tax, reference and other cases. This Court could have twelve benches of 3 judges – each of whose decision would be final. The SC should become a constitutional court with 9 judges sitting together en banc and a new procedure whereby it would select what it wants to hear. At present this selection takes 50% of the SCs time. Its jurisdiction would be limited to (a) fundamental rights (FR) cases (b) federal disputes between states (c) any matters relating to the interpretation of law, and governance, under the Constitution – broadly covering the Writ jurisdiction of most of the High Courts (HCs). If it works for the HCs, it should for the SC. In this regard, the federal jurisdiction would be exclusive. FR cases could come directly or by appeal as would other constitutional and administrative law issues. The ‘Advisory Jurisdiction’ would remain. The judges sitting together would make the Court’s work more cohesive.

The SC’s pronouncements on governance are spectacular¬. But, it has become an overburdened goods train with a broken down shatabdi express engine. The new solution would require a better selection of judges through wider collegiates not the present inward looking ‘SC’ cabal. The ages of all High Court, Appeal Court and Supreme Court judges should be 65 years. This will take the edge off competitive rivalries and selection. A better registry and management will save time. Judges will have time to consider and think issues through. If politicians are custodians of the political texts of the Constitution, judges are custodians of the justice texts; and, indeed the Constitution itself. Improving unit cost efficiency in disposing cases will not achieve justice or good governance. Structural changes are needed. Things can go wrong. They have.

Death for the killer: Are two views possible?

2010-05-07T23:38:00.000-07:00

DEATH FOR THE KILLER: ARE TWO VIEWS POSSIBLE?
RAJEEV DHAVAN

The Death penalty is a form of state legicide as a permissible retributive justice. Controversy abounds on the death penalty. For the purposes of Kasab’s case, it is not necessary to enter into the precincts of that dispute. The Supreme Court closed that controversy by upholding death penalty in Bachan Singh’s case (1980 – over Justice Bhagwati’s dissent). The Court felt that in the right circumstances “it was not possible to hold that…death penalty as an alternative to punishment for murder…is unreasonable and not in the public interest.” The imposition of death penalty on Kasab invites inquiry on the parameters laid down by the Supreme Court. True, Machi’s case (1983) decided that death should be imposed only in the “rarest of rare” cases and that “a balance sheet of aggravating and mitigating circumstances had to be drawn up to effect a conscientious exercise of this power”. If more direction was required, Devinder Pal’s case (2002) listed five kinds of instances which should attract death penalty (i) brutal, “grotesque, diabolical, revolting…dastardly” inflicted murders which would “arouse intense and extreme indignation of the community”; (ii) cold blooded murders which evince “total depravity and meanness”, especially by one in a dominating position or one of trust; (iii) murders of scheduled caste and minorities, bride-burning, dowry deaths, killing of wives to remarry “in circumstances that arouse social wrath”; (iv) murders which are “enormous in proportion”, including large scale or multiple killings; (v) killing of innocent children, women and the infirm, where there was a duty of protection or a public person figure generally loved and respected by the community. Thus motive, manner of killing and social wrath which shocks the social and judicial conscience attracts the death penalty. Social opinion examines the conscience and is not a license to lynch by public opinion, which many want to do in Kasab’s case.

Despite this, in Rameshbhai’s case (2009) two judges disagreed in the Supreme Court on the rape and killing of a 10 year old girl by a watchman. Justice Pasayat was for the death penalty but not Justice Ganguly. An Amnesty Paper reviewing death penalty cases in the Supreme Court from 1950-2006 suggests the imposition of death penalty cases was a “legal lottery”.

Kasab was found guilty for over 80 charges punishable under the Indian Penal Code and was given the death penalty. The death sentence was on five counts –of murder, conspiracy to murder, abetting murder, waging was against the country and terrorism. Classical international law may well assert that only nations can declare and fight wars. But, such classical law cannot govern our present discontents. Earlier these wars were called low intensity operations. But the war that Kasab was engaged in was a Pakistan sponsored covert war which does not have to be declared and is sustained till whenever the aggressor wants it to do so. We are at covert war with Pakistan for which Kasab was a willing trained and armed terrorist. That Pakistan is itself the victim of its own self created terrorism does not take away from its ‘covert’ war against India. I say this because in order to consider Kasab’s case the facts need to be told as they are. Kasab murdered seven people directly and was part of a conspiracy that led to the murder of 166 others. It was cold blooded, gruesome and deadly, with deliberate planned intent. It falls into the ‘rarest of rare’ categories. The fact that police were killed includes them only amongst the murder of the innocent. I do not believe in the death penalty. But that is irrelevant for discussing whether the death penalty was correctly awarded under Indian law. It is not an inter-personal killing but a large, well worked conspiracy to kill innocent civilians.

Kasab was waging a war. To his Pakistani handlers, he was a ‘war’ hero. For India and under Indian law, he is a dangerous criminal. The handlers are no less guilty. Implicit in the Kasab conviction is a message to Pakistan that the Indian legal system regards this as waging war, irrespective of international law definitions. Macaulay’s Indian Penal Code created a very wide definition of ‘war’ under section 121 to include all forms of ‘armed insurrection and invasion. This is very same section that exists in Pakistan’s Penal Code. Pakistan will continue this war. But Kasab is not a ‘soldier’ but a terrorist who at Pakistan’s instance waged ‘war’ in an invasion of India. The significance of the Kasab judgment is that it legally states what diplomacy holds back.

In this situation of covert war, Kasab does not have the rights of a prisoner of war. The killing of civilians as part of a terrorist plan to murder and wage war against the innocent cannot classify him as a war criminal. As a pacifist I do not accept Grotius’s distinction of a ‘just war’ through which Imperial nations conquered the world. Kasab was not to be repatriated to Pakistan, which, in any case, disowns him and the gruesome conspiracy he was a part of. He was also guilty of crimes against peace and humanity. But Judge Tahaliyani fitted Kasab’s crimes within the Indian Penal Code; and rightly so.

So, the answer to the issue of Kasab’s rights is that he was entitled to a fair trial. Did he get it? The answer is that he did. A distinct feature of his trial was that it was held in prison. The same Judge heard the case through. On 29 November 2008, Kasab confessed to the police and on 20 February 2009 made a confession before Magistrate Waghule. On 20 July 2009, Kasab pleaded guilty in court, but denied charges later in December to retract his plea of guilty in January 2010. Kasab was defended in court by Anjali Waghmare and later by Abbas Kazmi who was replaced by KP Pawar as Kazmi was wasting time. On other defence lawyer was shot. But Kasab got legal representation. DNA sample identifies Kasab with articles in the Kuber ship which was hijacked and whose crew was murdered. The 1522 pages judgment considers the testimony of 296 witnesses. Prima facie, it cannot be said that Kasab did not have a fair trial with due process - even though he tried to sabotage the trial himself with many antics.

But Kasab verdict is the beginning of a process which cannot be treated as a forgone conclusion. His right to appeal to the High Court and Supreme Court entitles him to the complete defence by the best Indian lawyers. Even in the Parliamentary attack case, Gilani was acquitted. The mercy petition process will take longer. Of the 308 persons in the death row, 256 are before the courts and 56 have filed mercy petition. If unconscionable delays occur so that the impending noose threatens his being, this, too, may be considered.

Indian justice is notorious for changes in judge at various stages. Justice Tahaliyani has been exemplary in the trial from beginning to end. All cases should proceed day to day on this basis.

To want capital punishment to be abolished is merely a wish which does not and cannot condone Kasab’s actions. Both legally and morally, Kasab is a criminal and to be treated as such – with the care and courtesy of a fair trial. Throughout my lifetime, I have seen continuing covert wars in various parts of the world. To condone these wars is to abjure humanity.

Snooping: Need for a Joint Parliamentary Committee

2010-05-01T23:36:00.000-07:00

SNOOPING: NEED FOR A JOINT PARLIAMENTARY COMMITTEE
RAJEEV DHAVAN

Beyond “telephone tapping” lies the awesome world of surveillance, of which tapping is a part. The excuse for all this is anti-terrorism. The principle put forward: “Trust the government”. The revelations in April 2010 show Sharad Pawar, Digvijay Singh, Nitish Kumar and Prakash Karat’s phones were tapped. This was political espionage. It did not have the remotest nexus with terrorism. The targets of snooping were political competitors and opposition. Like Watergate. But Watergate brought down a President. India’s Manmohan Singh does not even want a Joint Parliamentary Committee (JPC). Way back when I was arguing the phone tapping case, I relied on L.K. Advani’s dossier of 1988 which showed that the targets of tapping were Messrs Vajpayee, Charan Singh, Jagjivan Ram, Chandra Shekhar, GK Reddy, Arun Shourie, Kuldip Nayyar, Tavleen Singh, President Zail Singh and Y.V. Chandrachud, Chief Justice of India. This did not prevent the Supreme Court of India permitting a broad power to tap to Government while recognizing the absence of legitimizing procedure under the archaic overbroad Telegraph Act of 1885. Confusion was created by lawyer Kapil Sibal conceding acceptance of system “short of prior judicial scrutiny”. Judicial permissions precede “search and seizure”. Surveillance and tapping should be no better. In 1997 the Supreme Court was content with “guidelines” on who, what, how and oversight. A Joint Secretary could authorize specific taps, valid for two months and extendable (destruction of materials if not required) and with an Oversight Committee consisting of Government Secretaries drawn from the Ministries of Home, Law and Telecommunications. Enmeshed in secrecy, the “guidelines” were a flop. The Supreme Court lost its chance to counter invasions of privacy while blessing an invasive surveillance.

Terrorism has provided some kind of false utilitarian justification for surveillance. Post 9/11 in 2002, the President of America authorized intercepting communication in what has come to be known as the “Terrorist Surveillance Programme”. This was publicly acknowledged after revelations in the New York Times in 2005. Codename Pinwale of 2005 devised how a data base of electronic communications could be used and misused. The original US law of 1978 was breached and went beyond orders given by the Foreign Intelligence Surveillance Court – not just of phones but also email - in massive exercises of “over-collection”. The Bush regime’s practice was legitimized by a 2008 amendment which meant much of spying would be authorized and undetected. In the Al Haramain’s case (2010), Judge Walker declared that following Congressional Statutes was not optional. Though federal Judge Anna Taylor in 2006 declared unauthorized wire-tapping illegal, the case lost its adversorial charm by appellate reversal on facts that tapping itself was not proved. Ironically when the Bush changes were made in 2008, the then Senator (now President) Obama voted for them! The present law now requires a warrant for eavesdropping on an American citizen or organization in America, but not for the rest of the world; or for all of us!

After considerable fumbling when an internal Lord Diplock Committee looked at taps after the event, UK’s Interception of Communications Act, 1985 was superseded by a Regulation of Investigatory Powers Act 2000 which along with the Police Act 1997 permitted covert surveillance. These changes came because the House of Lords in Khan’s case (1997) showed amazement at the lack of statutory regulation on snooping. The present UK legislation has been called a “snooper’s charter” and may be specifically “directed” or generally intrusive. Covert and especially intrusive surveillance even though authorized by authority (eg. Secretary of State) is too widely permitted for a broad spectrum of serious crime prevention, economic well-being and national security.

We concentrate on the US, England and Europe who have declared unofficial war against terrorism to enable them to conquer countries through war in the name of peace; and, maintain a global surveillance, for the purposes of arrest, torture and rendition. The European Court in Khass (1978) and Koll (1998) frowns on unauthorized surveillance. But the world of "intelligence" has grown into an uncontrollable monster of which India is an inefficient but dangerous part. It is now well-settled that UK's war on Iraq was contrived. Surveillance of Muslims leading to their house arrest in UK was set aside by the House of Lords in June 2009. What kind of place does India want in this 'global network'? We stoop to conquer, to try and get access to Headley; and are spurned, with arrogance, by a brazen US, who does not even pretend to be wily. Our location on this greatest of all global surveillance is that of a junior cadet – trusted when convenient.

But is a US-directed snooping over the whole world a good thing – an evil necessity? To be sure, intelligence is needed even if it has failed us in Mumbai or Dantewada. To some extent, POTA admits to access to phone records as part of investigation. But questions of admissibility of evidence do arise where evidence is illegally obtained. India follows the rule that even if the evidence comes from an illegal poisoned tree, it may be admitted. How far can all this go? It can be ruthlessly argued that our phone privacy is less important than national security. But that is not how it works. The recent revelations show that espionage, surveillance and tapping have little to do with security issues. A state machinery can and has been twisted to work for its own ends – including the personal, private, political, evil and selfish. It is master-minded by those who have a sophisticated machinery of gigantic proportions in their hands. Can such a surveillance machinery, including phone tapping, be left without surveillance over-seeing its processes?

Unfortunately the Supreme Court of India’s phone tapping decisions (1997), left the whole exercise to semi-senior bureaucrats who may not be (and, often, are not) above corrupting political influences or personal vendetta. But, even these “guidelines” have been breached. Who authorized the present taps? No one is spared – not even politicians. No less unfortunately, the Prime Minster does not want a JPC. The reason is obvious. Beneath and behind every surveillance, there is a can of worms – which may, or may not lead to Race Course Road or even Janpath.

True, JPCs’ have been used rarely since Bofors (1987), stock market fraud (1992 and 2001) and pesticides (2003). But we need a JPC. Not a Liberhan style Commmission. A JPC would (a) investigate the efficacy of Supreme Court’s guidelines; (b) punish infractions (for this is as bad as Watergate); and (c) carefully consider a proper system of surveillance – an exercise that has never taken place in India since the nineteenth century. The Opposition should stop playing games with “cut-motions” to embarrass the government and precipitate musical chairs to ward of confidence-motions. It should not just be concerned with dislodging the government, but with good governance itself. Today “good governance” requires a thorough investigation of those who snoop into our lives with possibly malevolent intent to misuse the information. Only a JPC can form an effective probe. Denying a JPC suggests there is something to hide. The world of “Big-Brother” is upon us – the Leviathan of our times. Someone has to watch “Big-Brother” before he gets bigger to cease to be a brother.

Great Escape: The Strange Case of Lalu Yadav

2010-04-17T23:35:00.000-07:00

GREAT ESCAPE: THE STRANGE CASE OF LALU YADAV
RAJEEV DHAVAN

Ram Jethmalani has done it again. His legal acumen and forensic ability collapsed the Hawala case against L.K. Advani into an untidy legal heap to obviate further trial. Hawala transactions did occur. The ‘who-dun-it’ was known. But Jethmalani paralysed the law on a technicality. The flamboyant Lalu has amassed a lot of power and wealth. Stories about this are legendary. Somehow he has managed to save himself. At some point in time he had the protection of Kapil Sibal whom he made a Rajya Sabha MP. Now “Ram” has found an escape route. The difference from the Hawala case is that Lalu has an acquittal. Advani did not go to trial. The controversy centers around whether the state government could appeal the acquittal to the Patna High Court; and then the Supreme Court. On 20 September 2007, the Patna High Court felt that an appeal against Lalu’s acquittal lay. Lalu and the CBI, which was investigating his case, appealed to the Supreme Court which decided that the Patna High Court was wrong. Accordingly, if the Union government did not appeal, Lalu was scot-free on these charges after the trial court’s verdict of acquittal.

Is this a case where the ‘law’ has been ‘hoodwinked’ by politics? Common sense would suggest that a serious corruption case should not just stop at a trial court acquittal. Any politician, other than Lalu, may have wanted exoneration from the higher court. But not Lalu. It would appear the Manmohan Singh-Sonia Gandhi government wanted to give Lalu a reprieve. The politics arose in this way. In 1997, the Patna High Court ordered a CBI inquiry into these charges. The CBI charged Lalu with assets of Rs.46,26,827 in excess of known sources of income under the Prevention of Corruption Act (PCA). As the state police was not the prosecuting authority (since Lalu was in power) and CBI prosecuted, it was for the CBI or Central Government to appeal. But neither appealed. Both claimed that the investigation had been conducted properly. Justice Lodha’s judgment (for Chief Justice Balakrishnan, himself and Chauhan J) of 1 April 2010 states that the CBI informed the Court that “the central government after considering the conclusions and findings of the trial out took a conscious and considered decision that no ground whatsoever was made for filing an appeal from the judgment”. Good grief! Is this politics? Surely! Was the investigation that bad? Was the trial court judgment that good? Who took the decision not to appeal? Home Minister? Law Minister? On whose advice? The Attorney General? 10 Janpath? Suspicion will always lie that Lalu’s support was necessary to keep the UPA coalition alive.

Now, to the law. Justice Lodha is a skillful judge who has the uncanny ability to define and redefine the law at will. The judgment itself has abstruse references to dictionaries and 18th-19th century English cases – ignoring Justice Krishna Iyer’s dictum: “Lexicons and outdated moth eaten judicial expressions are not a safe guide to interpret law for the people”. In a panoramic sweep, Justice Lodha recounted that appeals against acquittal were not allowed in 1861 but were provided in 1872, 1882, 1898, 1955 and 1973. The controversy is whether the State government or the original complainant can appeal an acquittal? No doubt, because of the regime change, this means the State government of Nitesh Kumar – an arch enemy and rival of Lalu. The conclusion that an appeal can only lie at the instance of the Union government seems like intricate and involuted politics as well as bad law.

Normally, appeals are not allowed against petty cases (Section 376) and where the accused pleads guilty (Section 375). This is not a petty case or one where Lalu pleaded guilty. Lalu could have appealed against conviction (Section 374). But Lalu has not been convicted. Normally, the State government can appeal against sentence and acquittal (Section 377-8); and the Union government against sentence and acquittals (Section 377-8) when the CBI investigates the matter. But is the State government helpless where the Central Government refuses to appeal in CBI investigated cases?

For this we have to go to Section 378 of the Code. Normally, the State government can direct “the Public Prosecutor” to appeal “in any case” (section 378 (1) (b)). But, in this case, since the investigative agency was the CBI, it is said that the Central government can “also” direct “the Public Prosecutor” to appeal (Section 378 (2)). The operative word is “also”. As Omar Khayyam puts: “Yes! And if a single alif were the clue, could we but find it to the treasure house and peradventure to the master too!” Everything depends on this alif. “Also” should mean the state government can appeal in any case and the Central Government can also appeal. But, according to Justice Lodha, the legislature clearly maintained a “mutually exclusive division in the matter of appeal” of the Central and State governments respectively. Why? Surely, the State government was at least the notional complainant, and normally invites the CBI to investigate cases. But for this invitational consent, police investigation is normally a state subject. Here the CBI was brought in by the Patna High Court. Such crossing of federal lines by the courts has been approved by the Supreme Court recently. This should make no difference to the interpretation of the Criminal Procedure Code. The State government is a stake holder, not just for itself but also the rule of law.

It is this aspect that seems to be forgotten. The rule of law both protects the accused and ensures justice. To interpret the law in the manner Justice Lodha has done provides an immunity to Lalu not directly provided by the law. All that Lalu had to do was to persuade his political allies in the Central government to look the other way. Political corruption stalks through our polity in embarrassing proportions – no less in Lalu’s case where the acquittal should have been tested at the highest level. To block “access” to that level on a whim of the Central Government and the speculative interpretation of the law by the Supreme Court threatens federalism, justice and the rule of law.

But, one question survives. If the Union government declined to appeal, was this on the advice of the CBI which gave up on its own investigation? Or by Union government off its own bat? What does the file say? Could the Supreme Court or High Court have asked for the file to discern whether plausible reasons existed for not filing an appeal? Now that the investigation and decision has been made, in my view a ‘Right to Information’ application lies to probe the matter which is not forbidden by the RTI Act 2005 as the investigation is over (see Section 8(b) of the RTI Act).

Lalu may have won. But justice and federalism have suffered. Politics has intervened. The judges (including the retiring Chief Justice) have validated this political intervention. The judgment came on 1 April 2000. April Fool’s Day. Unfortunately this is no joke. It is the law of the land.

The Khap Murders

2010-04-03T23:34:00.000-07:00

The Khap Murders
Rajeev Dhavan

In the late 19th century, District Judge J.H. Nelsen warned Madras Chief Justice Innes of Madras that the dharmasastra law was vastly different from the ‘real’ law of the mofussil. In 1948, Ambedkar warned the Constituent Assembly of India against the supposed innocence of villages and panchayats. Politically, we have come to revere Panchayats of all kinds. Socially, panchayat justice can be perverse, casteist, cruel, vindictive and murderous. We are still grappling with the real law of mofussil.

The collective murder of Babli and Manoj by the panchayat village near Kathal affirms the brutality of the panchayat. Babli and Manoj (aged 19 and 21) eloped. When they caught a bus, a Scorpio laden with her brother and cousins (Suresh, Gurdev and Satish) and uncles (Rajender and Baru Ram) and a driver chased and stopped the bus and forced them out. They were murdered – Babli by poison administered by her brothers and Manoj by strangling. The bodies were found in a canal and un-ceremoniously cremated. Their offence: the marriage was within the gotra. The murder was ordered by Ganga Raj the Panchayat’s leader who also ordered a Rs.25,000 fine on those who kept in touch with Manoj’s family. Manoj’s sister and his courageous mother Chandrapati were both harassed. The District Session Judge, Vani Gopal Sharma, imposed the death penalty on the killers, life imprisonment for Ganga Raj and 7 years for the driver. Until caught, the accused were heroes in their caste’s cause. These occurrences are not new. I have over 10 volumes of reported items in my papers. The All India Democratic Women Conference’s (AIDWA) meeting on 11 January 2009, reported ‘honour’ killings and crimes in Punjab and Haryana (about 10% of India’s total), UP, Rajasthan, Bihar and elsewhere. Home Minister Chidambaram may well have responded to Brinda Karat’s question in the Rajya Sabha on 28 July 2009, that his government does not recognize the Khap panchayats or their authority to punish. At least, this is a better answer than BJP’s S.S. Ahluwalia officially telling the UN that allegations of honour killings were derived from “(s)elective reproduction of unsubstantiated reports … based on hearsay”. Truth is so easily mortgaged to politics.

Like many countries, India has two legal systems. The ‘real’ legal system of ‘social law’ and the ‘state legal’ system which overlaps ‘social law’. ‘State law’ works with authority in a number of commercial, transactional and other areas. But in many social areas, it is the ‘social law’ that prevails. ‘State law’ has kept its reformist distance as a dream in so many matters including child marriage, widows – even sati. It is the belief of panchayat and other custodians of “social law” that their law is supreme and supremely includes threats, mayhem, ostracism, beatings, humiliation, the naked parading of mothers and girls, drinking urine and eating excreta, kidnapping, rape (what kind of honour is there in rape?) and cold blooded murder. This is a mild review of an unending gruesome catalogue.

“Honour” killing and ‘suicides’ (which should be called dishonourable murders) are a compendium term associated with Pakistan, Jordan, Palestine and the like. It is insufficient in its description to many Indian situations which are about the maintenance of power, authority and status to make the vulnerable suffer the authority of the powerful. The Punjab High Court said on 16 March 2010 that it will not tolerate parallel judicial systems? But it exists, not just in Punjab and Haryana but throughout India. It crosses the religious divide. Throwing stones at Muslim countries does not resolve India’s problems.

How does the ‘State system’ accommodate the Khap system or its equivalent? This is a problem that exists throughout the world. The first approach is that of indifference. The police refuse to impose ‘state law’ on the law of the panchayat. If the ‘state’ law moves, it could result in death sentences of the kind we have witnessed in the Babli-Manoj case. This is rare. Second, various countries, such as Pakistan passed laws against ‘honour’ killings. But consider the Pakistan Supreme Court’s decision in Kamal v. State (1977) where it lessened the capital sentence because such killings were supposedly caused by grave provocation (the provocation defence). The bench included Justice Dorab Patel. In 1989, the Shariat Appellate Bench called for an ‘Islamized’ change in the law, leading to the Qisas and Diyat Ordinances after which the provocation defence was not available per se. But offences could be compounded, and various other ‘Islamized’ options were opened up. From 1995, the provocation defence resurfaced in alleged Honour killings. The tide of honour killings was unabated. In 2004, further changes were made obviating defences where the crime was in “the name or the pretext of honour”. Muhammad Ameer’s case (2006) suggests that Pakistan courts may continue the “patronage of honour killings”.

Honour killings exist in some abundance in Eastern Turkey. In Jordan, data from 1997 to 2009 shows that women (especially teenagers) are subject to honour deaths and buried in unmarked graves. Such honour killings have been reported Lebanon, Egypt and even amongst migrants in England. In 2000, the UN’s General Assembly passed GA55/111 calling governments to intervene. 26 States including Pakistan abstained. In July 2002 GA55/66 presented a report to eliminate honour killings. Asma Jahangir, rapporteur on extrajudicial summary or arbitrary executions since 1998, has filed separate reports on how honour killings attract impunity throughout the world. Concurrently, Radhika Coomaraswamy, UN Rapporteur on violence against women also reported on honour killings from 1996 onwards. Such killings also fall under the remit of the UN Committees on Human Rights (HRC) and women (CEDAW Committee). The former has made it clear in General Caveat 78 on article 3 of the ICCPR (Convention on Civil and Political Rights) that honour killing seriously undermine human rights.

One important defence of honour killings is the so called “culture” defence. Culture has always been an excuse to limit womens’ lives and prospects. It acquires even more sinister proportions when it is argued that honour killings find their defence, justification and roots in culture. It is from such “culture” defences that the South-East Asian theory of human rights has arisen whereby the culture of human rights has to yield to the so called demands of a so-called traditional culture. If the ‘culture’ defence is totally accepted as in the case of Khap Panchayats, the human rights enterprise would die. Culture and the culture of human rights have to be reconciled. There is a plimsoll line below which no culture can be permitted to go.

For our present purpose, I do not want to enter into the culture-human rights debate. I will assume that there is, and should be, universal acceptance that intentional wanton killings of the vulnerable with intent are grievous murders. There is much richness to be drawn from multiculturalism. This is not one of them. I do not subscribe to the death penalty. But such crimes cannot go unchecked, unchallenged and unpunished.

Indians often malign honour killings in Muslim countries. Caste driven panchayats are no better. To say that all this about honour is a lie. It is about revenge and murder. The sooner we accept that, the better.

Suffering Nuclear Accidents

2010-03-20T23:33:00.000-07:00

Suffering Nuclear Accidents
Rajeev Dhavan

What a way to go! For a country that suffered the Oleum Gas escape (1986), the Bhopal gas tragedy, was flooded with ‘Chernobyl’ butter and suffers escapes and mishaps from factories everyday, the Civil Liability for Nuclear Damage Bill 2010 (Nuclear Bill) disappoints. In the Bhopal Constitutional case (1989), the Union government claimed to be parens patriae to its people. The Bill shows the Union government as an irresponsible parent protecting the liability of multinational investors and using the taxpayers’ money to make the difference. Who is the Bill for? It should be to provide a comprehensive relief for victims and to effect immediate relief, rehabilitation and compensation. Whom will it help? Those who should be visibly and invisibly responsible and liable for nuclear mishaps. This is certainly the wrong way to pick up the pieces of possible nuclear disaster. In 1991, India’s Public Liability Insurance Act 1991 was supposed to reflect post Bhopal concerns. Despite amendments providing for minimal insurance and interim relief, it proved to be a damp squib. Insurance does not reflect claims. The Act is barely used – a disastrous recipe to deal with the aftermath of disaster.

The Nuclear Bill has a lot of “ifs” and “buts”. In the first place, the Board under the Atomic Act 1962 is required to notify a ‘nuclear incident’ in 15 days (!). If the Board feels the risk or injury is not grave, not notify it. Then what happens. A bureaucratic signal is necessary to accept that a disaster has occurred. But what happens, if a nuclear incident is not declared by the Board, which classifies it as not grave or serious. Is that the end of story? Second, the operator (on whom the liability falls) is someone who is designated by the Central government and, presumably following factories legislation, would be an individual. Enter designated Manager for the facility, exit Union Carbide or Warren Anderson! Third the liability clause is interesting. The upper limit of Rs.500 crores per incident is illusory. The Union government may increase it or decrease it to Rs.100 crores. Fourth, under the Nuclear Bill, damage is essentially awarded for damage outside the installation. This is important. In the Oleum Gas Case (1986), the Supreme Court made it clear that any ‘escape’ from an inherently hazardous activity would give rise to an absolute liability as soon as escape is shown. This was affirmed in the Bichhri (Indian Enviro) case (1995). This is not reflected in the Bill. Nor really taken into account. In fact the Bill actually reverses the principle by saying that the operator can hide behind the fact that his employees did something willfully wrong. Such an approach used to exist before 1911! Why should the Central government be liable for any liability over the limit? Or for damage due to natural disaster, insurrection, terrorism and the like? Why should the ‘operator’ not take out insurance for all damage as well. Fifth, the present insurance requirement is only to a certain sum for external damage under ‘normal circumstances’. Let it be more comprehensive. This will make the premium higher. But inviting the worst of possible hazards is an expensive business which cannot be dealt with by a blind eye to justice. Sixth, according to Minister Jairam Ramesh, Indian nuclear power generation is to reach 6000 MW by 2011. Russia wants to build 12 nuclear reactors in India. There will be 60,000 MW by 2032 as against 4,120 MW now (an increase of 1456%). Seventh, the normal adjudicatory system is through a Claims Commissioner. This is an ambitious plan locked up in procedure. The remedy is reposed in a Claims Commissioner who could be a person with 10 years practice or Joint Secretary with 5 years special knowledge of nuclear liability. I assume such a person exists; and is right for the job! Eighth, the limitation period is 3 years from discovery of knowledge of harm. Or a maximum of ten years – presumably, even if cases of latent damage are discovered years later. Ninth, there is little scope for relief to alleviate and rectify the damage immediately. Relief and rehabilitation are given the go by. The relief is just money. In the words of the song: “Money, money, money. It’s a poor man’s world”. Tenth, a Claims Commission headed by a person qualified to be High Court judge or is an Additional Secretary (both over 55 years) to hear difficult cases and those where damage is greater than 500 crores even though that is a mandatory cap. When the Central government feels the Commission has too little work it will be dissolved. Recourse to civil courts is ousted. This ensemble of authorities which is to determine issues of such grave portents will not necessarily have the ability or experience to do so. There are no provisions for legal aid. None to help those affected. We have forgotten Bhopal! Eleventh, there is the usual hateful provision that the Act shall come into effect on such dates he Central government decides – with possibly different dates for different parts of the Act. Acts should come into effect at once. This political largesse to government is arbitrary.

An argument has been made that India’s cap on liability is Rs.500 crores as opposed to China (205 crores) and Canada (335 crores); and is similar to France (575 crores). But the Nuclear Bill leaves it to government to reduce the amount to Rs.100 crores in each case. Why? To say that America’s private operators have pooled together a fund of $10 billion is a fact. This is just the corpus. Why should the Indians tax payer bear the burden of the excess?

This bill purports to be comprehensive, but is comprehensively problematic. It is said India breached history when it signed the ill-fated 123 agreement and ventured out from ‘nuclear isolation’. But the price of that is being exacted in this Bill. The operator in India is liable, the foreign investor goes scot-free. India is not party to the related Vienna Convention 1963, the Paris Convention of 1960, the 1997 Vienna Protocol or the Supplementary Convention for Compensation of 1997. To argue the China example ignores that there is no upper limit in the Vienna Convention and the Paris Convention’s limit is €700 million (Euros).

The problem is that Parliament is not permitted to discuss matters in two ways. Firstly, the Opposition brings Parliament to a halt. This was done in the Women’s Reservation Bill. But this usual tactic of the BJP in opposition is not the case with the Nuclear Bill. Second, the Government is often too much in a hurry to rush Bills through Parliament (sometimes under devious or foreign pressure) without discussion in Parliament or with political parties or people. Foreign governments want to protect their investors. This is precisely the Bhopal situation. Union Carbide was sought to be protected. Warren Anderson was de facto absolved. Multinational investors in hazardous activity (even less so in the field of nuclear liability) do not deserve protection from consequent liability.

Today, the Bill is precariously poised because the opposition is keen to bring the government down. As with the Women’s Bill, the government wants to be cautious. Tactic is an alternative to discourse. Let us wait and see.

Women and the Armed Forces

2010-03-13T02:21:00.000-08:00

Women and the Armed Forces

Rajeev Dhavan and Bipin Aspatwar

The “Mad Woman in the Attic”, the “Slave in the Kitchen”, the “Mother of many Sons (and daughters)”, the well behaved and much abused house wife have joined the market of opportunities and want ‘access’ to jobs, politics and power. The huge catalyst was ‘women’s entry into the work force of factories and offices was in the First World War, whilst the men were at war. A century later women in the armed forces want parity with men. Equally, arguments rest on a legal proposition that classification denying certain jobs, roles, tasks and opportunities is rational on the basis that unequals cannot be treated equally. This raises the question: are men and women unequal? But are they?

Apply this to the army; 20% (i.e. 200,00) of the US army consist of women. Before 1975, the American women had the choice to terminate their pregnancy or their jobs. President Clinton enabled women to go on combat duty (if they volunteer) except direct combat with the enemy. That they can prove as exactingly cruel as shown by Lynndie Rana England – humiliating Iraqi soldiers. Britain has 17,800 women in the services (including 3670 officers). But they are excluded from 96% of Air force, 67% of Army and 71% of Navy jobs. By contrast, there are only 13% women in Canada’s armed forces – being encouraged more for nursing, communication and logistic support, which is also true of Russia’s 95,600 women in armed forces. Australia does not permit its limited army women battle field duty. Women are conscripted in Israel but not given active battle field days.

Comparable to India, Pakistan generally has no woman in the armed forces, but it is said has 7 women fighter pilots. Malaysia, Sri Lanka and Bangladesh employ (but not deploy) women in the armed forces. India has a small number of women in the armed forces. In all countries the area of controversy is whether women should be on direct combat duty.

Puerile excuses are the logistics of not being able make available separate toilets, sleep and rest spaces. More exacting is the argument is that the question for equal rights for women should not defeat the efficacy and purpose for which the army is created: warfare.

The Delhi High Court judgment by Sanjay Kishan Kaul and Garg JJ has nudged the cause of ‘Women’ out of yet another area of policy reluctance. At present, women in the Indian army are denied a Permanent Commission (PC). On Short Term Commission women can stay in service for 14 years as opposed to men who retire at the age of the 60. This is what the Delhi High Court finds discriminatory of the equality provision and women’s rights to an occupation of their choice.

Since, the Delhi High Court was concerned with permanent commissions for men and women, it did not go into other issues concerning the role assigned to women. It may well be a long time before we see a Rani Jhansi or Queen Boadicea heading our armies into battle. Needless, modern wars are not designed for hand-to-hand combat. But some strenuous, low intensity operations can be deadly. Should they be in combat duty, if they want to? Perhaps, at this stage, voluntary opting for both combat and combat training may be permissible. But is there a cap on this? Is it to keep the fairer sex out of warfare itself? Is it to protect ‘them’ (i.e. women) or that ‘front line’ women would make the army weaker. The latter is the only public interest reason. But is such a supposition valid? Or should this only be subject to a training and fitness test? That, too, for all.

Dulce est decorum est pro patria mori (it is sweet and fitting to die for one’s country). Is it? No one should be placed in this position. The killing fields of war do no one credit.

Bringing Nero to Justice: Investigating Modi

2010-03-12T03:22:00.000-08:00

BRINGING NERO TO JUSTICE: INVESTIGATING MODI

Modi is a modern day Nero. Gujarat burnt before his watchful eyes. Death stalked Muslim victims in a needless but fanatical genocidal attack. Politically Modi was responsible to all the people from whom he excluded the minorities. Legally he escaped investigation and criminal accountability. Now he has been summoned to appear before the Supreme Court appointed Special Investigation Team (SIT) for questioning on March 21 in connection with the brutal murder of former Congress MP Ehsan Jafrrey during the 2002 Gujarat riots. Ehsaan Jaffrey was burnt alive, along with 70 other people, in Ahemadabad’s Gulbarg society.

The Gulbarg society massacre is just one of the many horror stories to come out of the Gujarat riots 2002. Ehsaan Jaffrey gave shelter to many residents from the savage mob. He tried in vain to contact politicians, police officers, and bureaucrats – but nobody responded. He was killed along with 60 odd people. A complaint was filed by Ehsaan Jaffrey’s wife, Zakiya, who had alleged that Modi and his colleagues were a part of conspiracy and instructed the policemen and bureaucrats to not respond to Muslim pleas for help during the Gujarat riots. A sole eye witness has alleged that Ehsaan Jaffrey also called Narendra Modi for help when the mob started gathering near Gulbarg society. In April 2009, the Supreme Court, based on her complaint, directed the SIT to probe the role of the people named in the complaint in the riots.

The credibility of SIT itself is under a cloud as a complaint was filed against SIT that one of the officers (Shivanand Jha) in SIT is named as an accused by Zakiya in her complaint. SIT had also been slow in summoning Modi. The SIT chief, Raghavan, did not spend enough time in Ahemadabad so as to expedite the investigation. Strangely, SIT has not submitted a very crucial piece of evidence – the CD that has telephone records of government leaders and officials during the first few days of the Gujarat riots. SIT’s actions (and inactions) cast serious doubts on its integrity and its commitment towards a sincere, unbiased investigation into the Gujarat riots. The application for reconstitution of the SIT will be heard by the Supreme Court on 15th March.

In another development, the Nanavati Commission, which is probing the Gujarat riots cases, is expected to submit its report by June 30. The Nanavati Commission has been criticized for not summoning and examining Modi in its investigation. An application demanding that Modi be summoned was turned down by the Commission in September 2009; this decision of the Commission is pending before the Gujarat High Court. All the hopes rest on the SIT investigation. If investigative justice fails in Modi’s Gujarat, the faltering steps of the relief law must also fail. Prosecutorial justice has already been called into question in Best Bakery and other cases shunted out of Gujarat. Custodial interrogation is required. The SIT must not flinch. The likelihood of Modi interfering with investigation is high. If Modi is arrested, he must resign.

Rajeev Dhavan and Bipin Aspatwar

Citizen of the World

2010-03-12T03:00:00.001-08:00

CITIZEN OF THE WORLD

“You can take Husain out of India, but not India out of Husain” commented Owais, Husain’s son, on Husain’s decision to accept Qatar citizenship. Under the existing citizenship laws, by implication, this means that Husain will no longer be an Indian citizen – as dual citizenship is not permitted. The law is clear [Article 9 of the Indian Constitution]

Who drove Husain to this point? The campaign by right-wing outfits of India. These self-appointed moral guardians have managed to drive into exile India’s most gifted artist of this century. His paintings were destroyed in an exhibition in 1996, around the same time Bajrang Dal activists forcibly entered his Mumbai home. Husain went into exile in 2006 after a hate campaign started by the right-wing outfits over his controversial paintings. Numerous criminal cases were filed against him in different parts of the country – using litigation to harass the artist. In a much-lauded judgment, Justice Kaul of the Delhi High Court quashed these cases. Even the Supreme Court stayed the proceedings of other criminal proceedings against M.F. Husain. This judicial intervention was not enough to ensure Husain’s safety.

Husain issue has become a political playground – in 2009 the Congress government assured Z security to Husain, assuring safety for his return. In contrast the same government issued an advisory against Husain in 2006 to the Mumbai and Delhi police stating “there are grounds to believe that certain paintings of painter M.F. Husain which hurt the religious sentiments of the majority community, and, therefore might be a provocation for communal disturbance”.

M.F. Husain said that it was impossible for him to work in India. To deny an artist his artistic freedom is equal to killing the artist. In his largesse Husain remarked on his decision to accept Qatar citizenship “I am beyond physicality… please know I remain an Indian painter whether I am painting in Paris, London, New York or Qatar… Tu kahe to main unwan badal dun, lekin ek umr darkaar hai afsaana badalne ke liye (only titles of paintings are told, the real story takes a lifetime)”. In this detailed interview Husain reiterates that his decision to accept Qatari citizenship is primarily commercial and one of convenience.

Husain loves his country. But, his art cannot suffer the torment and frenzy of persecution. There is a danger not just to his art, but also to the safety of his person. The threat of the Hindutva-right is as much, if not greater than the Ayatollah’s fatwa. In a sense it is worse, there are spoken and unspoken Hindu fatwas which are no less cruel in their intent and purpose. The Indian state refuses to guard Husain’s person. Contrast the protection to Rushdie by his passport state – Britain. If Qatar gives him personal security and artistic freedom, so be it. If Husain chooses a dictatorial Qatar tolerant of his art, instead of a persecutory democratic India, we Indians must answer for it. Unfortunately, Husain’s persecutors think of him as a Muslim first, and an artist later. India has a lot to learn about building tolerance in a multicultural society.

Rajeev Dhavan and Bipin Aspatwar

RESERVATIONS FOR WOMEN

2010-03-06T23:32:00.000-08:00

RESERVATIONS FOR WOMEN
RAJEEV DHAVAN

Adam and Eve were both equal. Both were thrown out of Eden into the garden of politics and power. Expelled, Adam seized the reigns of power and opportunity, marginalizing women. Success stories apart, it needs constitutional change to restore parity. Witness America’s Nineteenth Amendment to the United States Constitution in 1920 and electoral changes in English electoral law in 1928 and now India’s discontents on this issue.

India’s experiments with providing reservation have been male dominated, half hearted and lacking political will. The first experiment of providing one-third reservation through the 72nd and 73rd amendments in Panchayats has been a success. Elected women have often been harassed, humiliated and undermined, yet the panchayat reservations have mobilized women. The lack of political opposition to the panchayat reservations happened only because the option to bring in OBC reservations was conceded for reservations in panchayats.

Reservations in the State Assemblies and Parliament have suffered a different fate. This story covered the period (1996-2009) through the proposed 81st (1996), 84th (1998), 85th (1999) and now the 108th Amendment of 2008. I know from personal conversations with many in power that front bench support was never out of conviction. One politician (now in the cabinet) said to me: “We will never permit this”. Fearful of being totally constitutionally barred from 33% seats in the legislatures, the men, with notable exceptions, were strongly hostile to these changes. But they could not oppose openly because women still constituted 50% of the electorate. Thus, for most male politicians, support for women’s reservation has come from a fear of electoral backlash – and, perhaps of Durga and Kali!

A core point of resistance has been the creation of a reservation-within-a-reservation – not just for SC/STs in their quota, but also for OBCs. The OBCs had not been given mandatory (but only permissible) reservations in the panchayat amendments of 1992. In the 77th Amendment (1995), OBCs were denied promotional and consequential seniority avenues in their service and civil service careers through reservation. In the case of women’s reservations, the OBC based parties, headed by Mulayam Singh Yadav, Lalu Yadav, Sharad Yadav, Nitish Kumar and others, demanded that one-third reservation should also be compulsorily included for OBCs. Now that Nitish Kumar of Bihar has abandoned the case for reservations for OBCs, the OBC cause is lost. SC and ST are a super-classification amongst the disadvantaged; further reservations for OBCs will bring in an undesirable caste factor.

A fundamental objection to the blanket quotas for women has been class usurpation by the well off “creamy layer” women. Never was this more picturesquely illuminated than by Sharad Yadav when he spoke about the middle class baal katiya women (with short hair) hogging the quota. The left parties have been resistant to the creamy layer, even in employment matters. So, the baal katiya argument (true and impressive as it was) disappeared from the parliamentary radar.

Alternatives to quotas
The European and other nations have discarded the quota option and opted for political parties redressing the dis-balance between men and women in their legislatures. To this extent, England and other countries have achieved considerable success through political parties adopting voluntary method quotas. An in-between alternative suggested by the Manushi group (2000) and former CEC, M.S. Gill (also in 2000) was for compulsory political party nominations of one-third women. Manushi added that it should be ensured that the weak constituencies are not allotted to women! This proposal had continued support from two MPs Shri Virendra Bhatia and Shri Shailendra Kumar in the Standing Committee 36th Report (17th December 2009) supporting a 20% target for political parties. This proposal is (to borrow Justice Krishna Iyer’s phrase) “neither fish nor fowl nor good red herring”. What will happen to a political party that does not meet its target? Will it be struck off the register of political parties? This proposal is interesting as a voluntary measure. As a compulsory measure, it is hopelessly misconceived. Nothing prevents a political party from adopting a voluntary target for themselves. At present the maximum representation of women in the last two parliaments has been 14%.

Problem areas
The rationale for women’s electoral quota may well have to be synthesized with the basis of the original Constitution of 1950, reversing the British policy of invidious quota policy along religious, caste and tribal lines. On 16th June 1949, India’s Constituent Assembly opted for universal suffrage for all. This was a historic decision. But quotas for SC/ST and Anglo-Indians in India’s legislatures were permitted on grounds of three D’s (discrimination, disadvantage and disempowerment). There is no dearth of people in India who would fit this bill. Why women? Some women are privileged. The privileged will dominate. But imposing “creamy layer” for electoral purposes is not workable either for SC & ST quotas (where the leadership of the best will be lost) or otherwise. Broadly, the original dispensation based on three D’s applies to women generally.

The provision for reviewing reservations for women after 15 years is consistent with the review provision of 10 years for SC/ST. At that stage, discussion can center on whether (i) the quotas for women should be continued; or (ii) increased to 50%; or (iii) reduced to 25%. After 15 years, in 2025, Parliament will not disturb vested interests. Indian men will seek to try and control and dominate women MPs as they try in the case of panchayats. But Indian women MPs and MLAs have shown their mettle.

There is an argument that there will be 100% reservation in at least one constituency in every state. Ironically, in two member states in the Lok Sabha there will be 0% reservation in the third election. In the 100% case, this is a logical effect of the quota. However in the 0% case, only SC/ST women will be eligible for two elections, with general merit candidates being eligible only 10 years later. In single member states, SC/ST turn will come in the first years; and thereafter after 10 years. Who can nurture a constituency under these circumstances? As between SC and ST inter se, it is not clear how the quota will be adjusted.

Finally there is the lack of what lawyers call a "non-obstante clause". This simply means that each clause of the amendment should read “Notwithstanding anything contained in the Constitution…”. This is necessary to obviate challenges on grounds of violation of the equality provisions of the Constitution (Articles 14 and 15). No doubt Article 15(3) declares that special provisions can be made for women and children. But the electoral quota for women is super-special and precaution is necessary. Already, the Rajasthan High Court has correctly invalidated additional reservation for women. The hands of wayward judges with paternal minds should be tied down.

Despite its faults, this proposal should be supported and also be extended to the upper house. At present, the future of the 108th Amendment hangs on a slender thread, depending on smaller parties for support. With a gestation period of 14 years, the proposed amendment to secure women’s reservation in legislatures is a new experiment in democracy.

The CBI Judgment

2010-02-20T02:23:00.000-08:00

The CBI judgment

Rajeev Dhavan

Indian courts seemed to have invented a new slogan about the State police investigating serious crimes: “When in doubt, call in the CBI (the Central Bureau of Investigation)”. It is precisely this question this that was resolved by the Constitution five Judge bench in the West Bengal v. Committee of Democratic Rights judgment delivered on 21 February 2010. It was a much awaited judgment. The Mulayam Singh corruption case hinges on this issue. So also, the Moga sex scandal case – pending before the Supreme Court. Every time, the Moga case was listed, the Court adjourned to await the judgment in the CBI case. Why the Supreme Court takes so long to deliver judgments is not clear? The Narco test judgment is awaited for over two years. The Bangalore Akravaty land acquisition judgment has not arrived for one and a half years. In both cases the present Chief Justice of India presided. Judgment on the constitutionality of the panchayat amendment, argued before the Chief Justice, is delayed. Clearly, the Supreme Court does not lead by example.

The CBI judgment is clearly unconstitutional. It violates the federal framework and annihilates statutory provision on the basis that fundamental rights are at risk when the State police are corrupt or under the control of politicians. First, the federal question. Under the constitutional framework, policing is exclusively a State subject. The Union’s armed forces can be brought in to quell public order in aid of the civil power. (Schedule VII, List II, List II E 1 and 2, List I, E2A). The Constitution allows the Union to extend the powers of State police of one State to another State without the consent of that other State (List I, E 80). There is little dispute that the CBI is not an armed force or a State police. The Delhi Police Establishment Act 1946 under which the CBI is constituted is solicitous of State federalism. Under the CBI statute, the CBI cannot oust the State police’s investigative jurisdiction except with consent of the State. Thus, the Constitution and the CBI statute are crystal-clear. Only the State police and not the CBI can investigate state crimes. The CBI needs the State’s consent to do so.

If this is true, the CBI judgment is, prima facie, illegal and unconstitutional. How, then, did the Supreme Court play ‘Houdini’ to pull a federal rabbit out of the States’ exclusive hat. The Supreme Court’s assumption that its constitutional power to do ‘complete’ justice (article 142) enables such a dismantling of federalism is totally belied by its own decision in the Bar Association case (1998) which decided that the complete justice power of the Supreme Court could not violate either a statute or the Constitution.

Aware of this, the Court took refuge in the ‘basic structure’ doctrine which treats judicial review as part of Constitution basic structure. But, the Bommai case (1994) also declares federalism to be part of the basic structure. The issue was not the separation of powers, but a straightforward competition between the judiciary and state power. The Constitution sides with the federal structure and the exclusive power of the States to police investigation. The Supreme Court judges virtually set the Constitution at naught and sided with themselves to expand their own judicial power. The Supreme Court’s justification that the higher judiciary must enhance its jurisdiction to defend the fundamental rights of the people seems to be declaring that in the defence of Fundamental Rights, it can do anything and everything – even injure the federal structure.

Second, What are the limits of this power reposed in the High Courts and Supreme Court to call in the CBI. The Supreme Court feels that this power can be used only in “exceptional” circumstances. The Court was generously wide in giving considerable leeway to the Courts by stating: “This extraordinary power must be exercised sparingly, cautiously, and in exceptional situations where it becomes necessary to provide creditability and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights”. This catalogue ambiguously justifies all kinds of judicial intervention. Legal elephants can run amok with his judicial script. We are back to square one: The more things change, the more they remain.

Third, is the public interest and governance argument. It is true that State police are under the thumbs of Chief Ministers in power. Party and other hoodlums pressurize the local police. This is true of all lead cases: Jessica Lal, Katara, Mulayam, Mayawati, Jayalalitha and others. I agree that the Constitution is a dynamic document which is not a state of “becoming” not simply “being” (Justice Dwivedi in a famous 1973 case). But, is that sufficient justification for dismantling India’s federalism?

What were the options before the Supreme court ? (i) The Indian Police Act gives the State government the power of “superintendence” of the police – a power which has now been interpreted narrowly by the Supreme Court in the West Bengal Boys case. The Courts can always superintend investigation of State police. (ii) The High Court can transfer cases from one district to another within the State. (iii) Following, the Hawala case (1998) the Courts can monitor a State police investigation to when the charge sheet is filed. After that the judicial process begins. (iv) When the Supreme Court feels a case ought to be transferred to another State, it can always do so – as it did by sending the Gujarat riots case to Maharashtra, the Shankaracharya case to Pondichery and the Jayalalitha case from Tamil Nadu to Karnataka. It is now abundantly clear that the transferee State’s (and not the original States’) police and prosecutors will exclusively deal with the investigation and prosecution – much to Jayalalitha chagrin in the Shankracharya case. (v) Alternatively, it could have reposed the CBI option only in the Supreme Court. The Court did not examine these options. It chose ignored the Constitution and statutes to indulged in self empowerment.

Fourth, comes the case of the CBI itself. In the Moga police case the CBI frankly told the Court it was short staffed and busy. But the investigation was forced on it. The CBI did not credit itself in the Bofors case. When the CBI investigates political cases it inspires unease. This became apparent in the Mulayam case where it changed colour depending on when Mulayam’s party gave voting support to the Congress led UPA. The CBI is not suited for these cases. Its forte is international crime, economic offences, terrorism, smuggling and so on. The Central government wants the CBI to investigate 231 offences under the Penal code; and several others under 69 Central and 18 State acts with the consent of the States. In 2007 114 cases were sent to the CBI by courts. In December 2009, the CBI had 988 cases pending investigation, 138 cases pending sanction for prosecution. 9475 criminal cases were pending for trial. The CBI does not have sufficient staff or resources. In big political cases it flounders for posture. In the Havala and Noida scandal cases, the court’s monitored the CBI investigation to fruition.

At worst, the Supreme Court could have directed that only the Supreme Court will have the power to ask the CBI to investigate violations of fundamental rights. Alternatively, it should have looked at other solutions to monitor investigations of State police. In its efforts to empower High Courts and itself, the Court has gone over-board.

Reservations for women

2010-02-06T02:24:00.000-08:00

My Name is India

2010-02-06T02:22:00.000-08:00

MY NAME IS INDIA
- RAJEEV DHAVAN

The Thackerays have dared India’s governance to take action against them at its own risk. What immunizes the Thakerays from the law to make them invincible? Certainly not the protection of Lord Shiva. Nor, indeed, are they the new ‘freedom fighters’ for Maharashtra. Political cowardice runs through the lumpen support – with women at the barricades protecting the men, and the men insulating their masters. Can this form of disruptive and divisive outrage which results in theatres closing down and brings fear and violence in the streets to Mumbai’s minorities and migrants ever be contained by the law? Can these new forms of political blackmail silence the rule of law?

India has a colonial system of public order and censorship superimposed on a democracy. It contains ample police powers to patrol Mumbai, arrest the Thackerays for provocative ‘violence’, bind them to keep the peace under the Criminal Procedure Code (CrPC), book them for several offences under the Indian Penal Code (IPC) including promoting enmity amongst groups (section 153A), prejudicing national integration (section 153B), deliberately and maliciously outraging religious feelings (section 295A), criminal intimidation to insult, injure and cause public mischief, death or grievous hurt (sections 503-506), and subject them to civil suits for vicarious liability and perpetuating constitutional torts against peoples’ civil liberties, freedom of movement and right to settle anywhere in the country. Provocative publications inviting the above can be banned (section 95 CrPC). Colonial governance confined Gandhiji to jail for nuisance; and before he became Prime Minister, Nehru had spent 10 years of his life in jail. India may refuse to use this full armoury of law against her own people for good reason. But can it stand idly whilst the very basis of constitutional governance is being shaken?

The contrasts are clear. The massive criminal complaints against Hussain. The cases filed against Khushboo, against sociologist Ashis Nandy and historian D.N. Jha, against Laine’s work on Shivaji. The ban on Sahmat’s poster on the Ramayana – later absolved by the Delhi High Court; Nasreen’s Lajja and the Tamil film Kaatrukkena Veli. Along with this is the social censorship by Hindu fundamentalists on the filming of Water. Most significantly, the Sena’s own censorship of those who do not seek the blessings of the Sena Supremo – as did Michael Jackson, Amitabh Bachchan, Karan Johar and others. Now, the Sena wants to make a further inroad by distinguishing between content censorship and person censorship. What Bal, Raj and Uddhav Thackeray are saying is that they will not just censor the content of movies, but also the films of any person who disagrees with their policy on a Marathi Mumbai. On this list stands Sachin Tendulkar, who dared to say he was an Indian first and of course Shah Rukh Khan, the release of whose ‘My Name is Khan’ is threatened with peril. It is thus clear that the policy of the Sena is (a) pernicious, (b) discriminatory and (c) bathed in hypocrisy to take advantage of the very right to speech that they deny to others.

First, let us deal with the exhibition of ‘My Name is Khan’. It simply must take place. Those who do not want to see it, need not do so, but no movie-viewer can be coerced; and no theatre can be forced into closure. Voluntary boycott, yes; forced closure, no. Any conspiracy to the contrary is criminal intimidation. Chief Minister Ashok Chavan is under a legal duty to protect all theatres. In Shankarappa’s case (2001), the Supreme Court declared that once the statutory censorship has cleared a film, complete protection has to be given to the theatre and viewers. Scared theatre owners must indicate who is pressurizing them. The Union and State Governments must make a declaration to fulfill the Supreme Court’s direction. If the Sena is cowardly, it will use covert measures to prevent viewing. But if it claims courage it must openly declare its policy of criminal intimidation and be prepared to go to jail. What is at threat is the very basis of free speech in India’s democracy.

Second, the Sena’s offensive against alleged anti-Marathi attracts offences of promoting enmity, national integration, and criminal intimidation. Offences have to be registered by the State of Maharashtra. In any event, cases be filed all over India (as they were against Hussain) calling upon Thakeray and Sena spokesman to answer wherever a cause of action arises.

Third, select editions of Samna that contain such exhortations must be duly prosecuted. Such bans and forfeiture are possible and can be put into immediate effect as was done in the case of Laine’s book and Sahmat’s poster. Let this be done by every State of the Union, wherever the edition finds circulation. Let the Indian federation join together in this, as was done to prevent Modi’s induction of RSS in Gujarat’s administration.

Fourth remains the question of de-registering Shiv Sena and Maharashtra Navnirman Sena (MNS) as a political party. This has to be handled carefully so that party political democracy is not hurt in the process. In the Congress case (2002), the Supreme Court denied to the Election Commission (EC) the power to de-register parties who simply declared policies inimical to the Constitution which they have to statutorily declare under section 29 of the Representation of Peoples Act (1951). Sena and MNS clearly do not believe in the constitutional right of non-Marathis to migrate and earn their living in Mumbai, except as second class citizens. They should openly incorporate this in their party constitutions and formally declare this policy to the EC. This is because the Supreme Court has clearly indicated that the EC can effect such deregistration where a political party obtains certification under section 29 by fraud or consciously abjures by self declaration its duty to follow India’s Constitution or due to any other fraud that is self-evident. All that remains is the Shiva Sena and MNS to put its political fortunes where its mouth is. However, since these parties are seeking vote bank opportunism, they may lie low on truth.

Anyone who believes in India’s democracy would be loathed to suppress views, dissent and opposition. We must tolerate differences of opinion, harsh, annoying or even provocative speech. But, where such behaviour amounts to threats of violent criminal intimidation, democracy has to defend itself through rule of law, lest the very foundation of democracy is challenged. These creeping inroads into Indian governance will grow like a cancer unless nipped in the bud by the Union, state governments, parties, groups and individuals who want to protect India from this entropic disease.

Impeaching a Judge

2010-01-23T02:21:00.000-08:00

IMPEACHING A JUDGE
RAJEEV DHAVAN

Impeachment proceedings against Justice Dinakaran are on. The controversy which started over the suitability of his appointment as a Supreme Court judge has expanded into considering whether he should be allowed to remain a judge – leave alone the Chief Justice of Karnataka. Accordingly, the Vice-President M.H. Ansari (as Chairman Rajya Sabha) has appointed Justice Sirpurkar (Supreme Court), Justice Dave (High Court), and P.P. Rao (distinguished jurist) as members of the Committee under the Judges Enquiry Act 1968 – as a prelude to impeachment.

But no sooner was his penultimate proceeding started, those very groups responsible for the campaign against Justice Dinakaran now want a recall of two members (Sirpurkar and P.P. Rao) and inquiry to be reconsituted. This request flows from Forum for Judicial Accountability (Chennai or Vaigai group) and Campaign for Judicial Accountability (Delhi or Bhushan group). Both have been at the forefront of this campaign supported by others. The two groups are convinced he is guilty. Others who support, like myself, feel that there is prima facie case for an inquiry which alone can determine his guilt.

Why should Justice Sirpurkar and PP Rao be asked by the Vice-President to recuse themselves? It is also suggested that since the Chief Justice of India (CJI) was consulted with these appointments, these appointments are suspect because the CJI had defended the collegium’s affirmation of the decision to elevate Justice Dinakaran to the Supreme Court. The Chennai group feels that it has a special right to challenge these appointments because they were the first to explode the Dinakaran issue to the public. The Delhi group is a self-styled vociferous custodian of judicial morals. Democracy is grateful to both of them.

At the very outset, let us be clear that the Inquiry Committee is not a jury. Nor are we in the process of jury selection where you keep opposing appointments until you get the jury of your choice. If the Vagai-Bhushan groups want to appoint judges of their choice or satisfaction, the rule of law and fairness is ill served. Nor should it appear that this is so.

Let us start with P.P. Rao. Did either of the groups speak to P.P. Rao? No, they did not. Well, I did. P.P. Rao drafted the memo of 28th November 2009 asking Dinakaran to face the inquiry. Reliance was placed on a newspaper item that it was “learnt” that P.P. Rao had been consulted by Dinakaran. The next step was to jump to conclusion that Rao was disqualified. First, P.P. Rao has not given any “opinion” to Dinakaran. Dinakaran is not his client for a fee. He is not a friend. There is no pecuniary “bias”. Dinakaran did call on Rao, who told him to face an inquiry and step down from work during that period. Rao’s stance has always been clear. The Chennai group also asserts Rao and Dinakaran along with others are on the General Council of the National Law School. According to them, the test is that all those who “has had any association with the person whose acts are to be gone into” are disqualified. This would exclude all judges of the Supreme Court and High Court Chief Justices, since they all meet at Chief Justices Conference, and other meetings. This concept of “association” is then restricted by the Chennai-group to “close association” with Dinakaran. This test, too, fails. Rao is not closely associated with Dinakaran. Rao is one of the most distinguished counsels and jurists in India – known for courage, integrity, calm and brilliance. His impeccable record shows he is above suspicion. The only way to malign him is to force unwarranted suspicions on him. Rao is a gift to the legal and public community. Let things remain that way.

An embarrassed Rao wrote to the Vice-President to seek permission to recuse in the light of the controversy. The Vice-President has declined. Mudslinging without foundation is neither fair or in the public interest.

Justice Sirpurkar is a judge of the Supreme Court against whom there is no allegation of judicial impropriety. His recusal is sought for two reasons. First, both were judges of the Chennai High Court between 1997 and 2003 and sat on benches and committees together. This could hardly constitute a disqualification. If correct, no Supreme Court judge could ever sit on the inquiry committee against a Supreme Court judge because they invariably sit on cases together. The second reason advanced by the Bhushan-group is that it “has come to know… (that) he has told several responsible lawyers after the controversy “that he knows Dinakaran well and that he is a honourable and wealthy man” and has therefore “prejudged the issue”. Corridor gossip lacks credibility. Even so, Dinakaran is prima facie innocent until proven guilty. His inquiry should be fair. Justice Sirpurkar will, and must have, assessed the situation before accepting this assignment. Attributing bias on unwarranted suspicions is unacceptable.

The sad part of such accusative campaigns is that it puts public minds in a fix. If Dinakaran is acquitted, there will be a “I-told-you-so”. If found guilty, the judges and Rao will be applauded. The effect of such a campaign is a message to Sirpurkar and Rao that they are forewarned that they must convict to prove their independence and impartiality. Such pressure on an independent inquiry is simply wrong.

The next issue is whether the Chief Justice of India (CJI) is to be consulted since it is alleged that the Judges Inquiry Act 1968 does not require consultation and the CJI had defended the decision to elevate Dinakaran to the Supreme Court. That the CJI defended his own and the decision to the collegium is hardly suprising. Placed in doubt he again referred the matter to the collegium, which reversed the earlier decision. The CJI asked the government to inquire into the allegations against Dinakaran. As CJI, and head of the judiciary, he had to be consulted on which judge could be spared from court work. On the material placed, there is no reason why the CJI should not discharge his constitutional functions.

This leaves the issue of the Survey of India Report to determine the extent of the Dinakaran lands and alleged encroachment. The Chennai group says that the Survey of India’s deliberations should stop, so that the parallel proceedings should not take place in Parliament and the Survey of India. I think this demand is correct, but should not possess a shrillness of articulation. On 11th January 2010, the CJI told a newspaper that he asked the government to conduct an inquiry and does not know what the Survey’s report says. What, then, is the solution? Clearly, the Vice-President of the Rajya Sabha (to whom the Chennai-group wrote the letter) has no jurisdiction. Nor, indeed, the Chief Justice of India, who did not order it. Before the matter is litigated, the Government of India has the power to stop the Survey of India. It will also be within the remit of the inquiry and Parliament to seek the report or further evidence, if so advised.

Vigilance is important to democracy, excessive suspicion is not. Public scrutiny is vital, but it has to be grounded with well founded rigour.

Police as Criminals

2010-01-09T02:19:00.000-08:00

Police as criminals
Rajeev Dhavan

Police who turn criminal are not ordinary criminals. As soon as they move to the ‘dark side’ they build social and political impunities for themselves. Fellow policemen support them. Politicians of various complexions protect them. Rank and file policeman act as their thugs. Other thugs are at their beck and call. Real cases against them are ignored. Fake cases are registered by them to ensnare whom they want. Beyond the bent policeman lies the police ‘don’ who kills with impunity, appropriates at will and inflicts vengeance with ferocity.

The real problem with the Rathore case is that India does not have effective processes to deal with powerful policeman. Their tribe is increasing. Anti-terrorist campaigns are making terrorists in their own cause. The list is increasing: ADGP Sumedh Saini made members of Kumar family, disappear. The other brother, Ashish (a client and friend) has knocked on the highest and lowest courts for justice without success. After 9 years IG R.K. Sharma was sentenced for killing journalist Shivani Bhatnagar (another friend). In Rajasthan, DIG Tandon is accused of raping a tribal. Pradeep Sharma responsible for 107 encounter deaths is now held for fake encounter. Without activist-media campaigns (as in the Jessica Lal, Nitish Katara and Priyadarshini Mattoo cases) these are bound to fail. Such campaigns are not trial by media and should not be treated as contempt of court. A popular cry for justice is not populist justice.

Let us turn to the Rathore case. Ruchika loved tennis. Rathore was a big shot in the Lawn Tennis Association. Around August 1990 he ensnared, took a fancy towards Ruchika and molested her. Reported to Home Secretary Duggal, Rathore decided to wreak vengeance. On 17 August 1990 Rathore’s hoodlums made slogans against poor Ruchika and smashed the panes of her house. When the government decided to register an FIR in 1992 against Rathore, the next victim was Ashu (Ruchika’s brother). Arrested on false cases of car theft, in October 1993 he was detained, beaten made to sign confessional statements and taken to Ruchika to remind her of what would befall her family. Ruchika was expelled from school apparently at his instance. Unable to stand the humiliation, embarrassment and pain on 28 December 1993 Ruchika committed suicide. The post mortem was deliberately botched up. No real investigation took place. Within a month, in January 1994, charges against Rathore were dropped! After three recommendations for action between 1990 and 1992, no departmental action was taken against him. It took till 21 August 1999for Ruchika’s friend Aradhana to secure an order for a CBI inquiry from the Punjab and Haryana (P&H) High Court. CBI officer R.M. Singh is now willing to reveal how Rathore tried to pressurize the CBI. Two years later the CBI recommended Rathore’s removal. This was not done! He retired as DGP in 2002! The CBI charge sheeted him in December 1999 for outraging and insulting a women’s modesty. The charge of ‘abetment of suicide’ was quashed by the P&H High Court and Supreme Court! Effectively, he was found guilty of flirtation! In December 2009 – fined Rs.1000 and sentenced to six months rigorous imprisonment and allowed bail!
The law tries the crime not the criminal. Thus, Rathore is portrayed as having committed a number of individual smaller crimes with the real and full story missing. It is like looking at still photographs instead of a cinematographic depiction of evil. Between 1999-2000, Rathore was successfully charged only with flirtation. Was that all that Rathore did? Under public pressure, in 2009-2010 he was charged with filing false cases against Ruchika’s brother Ashu, fabricating a false post mortem for Ruchika and abetment of her suicide. Already rejected up to the Supreme Court in 2002, the abetment charge will be difficult to reopen. What is missing from the legal response is his alleged systematic harassment of Ruchika and her family, sending goondas to her home, securing her expulsion from school, targeting Ashu, interfering with police and CBI investigation, victimization – for almost 20 years with a smile on his face. On 8th January 2010 HC refused to grant bail. The smile has gone to gleam in jail unless the Supreme Court decides otherwise.

How does one get justice against pathologically vindictive police officers like Rathore and Saini who commit not one but several crimes? The answer lies in examining the process and not just the event. Indian public interest law has an answer. In December 2000, the P&H High Court itself took suo motu notice, of Rathore’s vengeance against Ruchika’s brother Ashu. On 5 July 2002 they asked District Judge, Patiala to examine the Ashu victimization. This would have x-rayed Rathore’s misdeeds. But on 6 May 2005, the Supreme Court through Justice Sabharwal made an egregious mistake and stopped the High Court proceeding. Justice Sabharwal, one of the finest judges the Supreme Court (whatever anyone else may think) simply lost the plot in this case. It was wrong to recommend a bit-by-bit justice against policeman who used the police and hoodlums to wreak a continuous stream of harassment and crimes against a family who dared oppose them. Examining the process would reveal the full story. This valuable opportunity into investigating a mass crime with its full discontents was lost.

In my view, even now no independent investigation can take place unless it is effectively monitored by the High Court or Supreme Court. Rathore has the protection of IAS and IPS officers; and of politicians and Chief Ministers. In the Hawala case (1998), the Supreme Court ensured the process of Hawala transactions was properly investigated. In the Noida case after several years of monitoring, the case against Neera Yadav proceeded to trial. Noida’s favoured allotments for 10 years were screened. This is what was begun by the High Court in 2002 for Rathore, but stopped after 3 years by the Supreme Court itself. One can only urge the Supreme Court to follow the Hawala–Noida example to supervise investigation into Rathore. Years ago, the Supreme Court would not have hesitated to do this. Today the judicial colossus, like Atlas, shrugs its shoulders.

The fulcrum around which this problem rotates is to work out a response to dealing with the police as criminals. India needs a good honest police. We know how brutal the police can be. Chhattisgarh police have gone berserk in punishing peaceful activists. But where the police turn gangster a new method of monitored investigation by courts is necessary and proper. It is fit for the Chief Justice of India to set up a process for Rathore’s unrepentant violation of due process and human rights.

Law Minister Moily’s faith in fast track courts as a complete answer in this case is exasperating. Fast track courts can only process what is fed to them. For the future specifically, in the long term substantive offences on police misbehaviour and independent investigation processes are necessary. In the Rathore case itself, his entire term of office from 1990 needs to be x-rayed for systematic abuses of power. This is equally true for his colleague, Saini. This will reveal far more than is known today. Rathore’s smile has gone. That is not enough. He needs to be exposed and punished according to law under the vigilant eye of the High Court or Supreme Court

Conviction by Deportation

2010-01-06T04:54:00.000-08:00

Conviction By Deportation
PILSARC EDITORIAL

On 5th December a Nepalese student, Nitu Singh, was deported by the Maharashtra Police to Kathmandu on grounds that she was allegedly involved in anti-national activities. Reports state that this deportation was carried out at the behest of her influential politician husband – a domestic feud being couched as national security issue. The Pune police has stuck to the stand that as part of their “secret-operation” they found that she was involved in “anti-national” activities and hence handed over to her parents. DCP, Pune also made a statement that Nitu’s activities were constantly under watch. Home Ministry has taken a completely contradictory stand – Mr. Chidambaram said that there is no case against her as far as the central government is concerned. The Home Ministry sources also indicated that the Pune Police has exceeded its brief in deporting Nitu Singh without highlighting her alleged links with Maoists to the Home Ministry, Intelligence Bureau (IB) or Research and Analysis Wing (Raw).

The facts thus far are – a) Pune Police clandestinely deports a Nepalese Film student with complete disregard to procedure on grounds of threat to national security; b) There are allegations that her influential politician husband is behind the deportation; c) Nitu Singh’s father had written several letters to Pune Police seeking their help in deporting her and in a subsequent letter to Ms. Brinda Karat, he “admits that he was misled by his son-in-law and he would like Nitu Singh to finish her studies”; d) Neither the Home Ministry, IB or Raw is informed about her “anti-national activities”.

The Pune Police operation is so secretive that they did not even inform the most important offices (RAW, IB and Home Ministry) dealing with threat to national security. Further, why did the police not arrest Nitu Singh for further investigation? If the state police is to be believed, then Nitu Singh would definitely have some accomplice or an organizational back-up in her “anti-national” activities”.

The Pune Police actions smack of impunity and illegality. It is a sign of a banana republic. But India is not a banana republic. PILSARC feels that strong action should be taken against the officers who ordered and carried out this operation. The Centre must also take this issue seriously and ensure that such clandestine, illegal acts do not recur. It reflects poorly on the whole nation and casts serious doubts on the institutions in India, which are meant to promote and protect democracy, but are acting against it.

The 15% Solution

2009-12-25T22:08:00.000-08:00

Reservations for Minorities

The 15% Solution

Rajeev Dhavan

Like a Christmas present to expected-to-be-grateful minorities, the Ranganathan Mishra National Commission on Religion and Linguistic Minorities emerged from forgotten shelves. Envisaged on 29 October 2004, Mishra Commission was constituted on 21 March 2005 with Mishra as chair, Tahir Mehmood, Anil Wilson, and Mohinder Singh as members and Asha Das as Secretary. The Report arrived on 10 May 2007 and was tabled in Parliament on 21 December 2009. Most of the Report recommends the usual remedies of coordination, implementation and good will. Since such Reports invariably recommend the prevalent diseases of ‘Chairmanitus’ and ‘Committiatus’, these are handsomely rewarded in the Mishra report in the form of a Parliamentary Committee, National Committee, similar bodies in the States, National Coordination Committee, State Minority Commissions, Minority Welfare Departments and Minority Welfare Committees in all districts (pr.16.4.5). This is in addition to the existing statutory National Minority Commission (1993) and National Commission for Educational Institutions (1983). Rules and procedures were recommended for the National Minorities Development and Finance Corporation and the Maulana Azad Education Foundation to uplift the minorities economically, with, possibly, the creamy layer licking off the cream (pr.16.4.5). In all this, the report is like countless reports which shelve dust; and, if implemented create sinecure posts for absentee members whose offices suffer paperonic decay. All goody-goody programmes are not for serious implementation.

The basic approach of the National Commission is to exorcise affirmative action programmes of Hindu notions of caste. The Commission was “convinced that any religion based discrimination in selecting particular castes for affirmative action will conflict with the letter and spirit of the constitutional provisions”. But this was exactly the view of the minority judges in the famous Mandal case (1992). The Commission notes that ‘castes’ exist in all religions to ask why affirmative action is restricted only to Hindus. It suggests that the Hindu monopoly on affirmative action be broken in favour a secular estimate of similarity placed castes in other religions. The Mishra Commission wants the Scheduled Caste (1950) and Tribes (1951) Orders to be amended accordingly. What the Supreme Court failed to do in the Mandal case (1992) is now attempted by the Mishra report (2009).

Mandal had spoken of the possibility of Muslim and Christian reservations (see (1992) Supp. 3 SCC 217 prs. 757, 761, 769, 777, 778, 782 and 788). But it is precisely the attempt to include Muslim as ‘Other Backward Classes’ (OBC) which failed to pass muster before two 5 judge benches of the Andhra High Court. A 7 judge bench decision is awaited. The problem has been that the High Court has applied much more rigorous tests of backwardness to Muslim disadvantaged than their Hindu counterparts. Most OBCs are unquestioningly appointed by way of largesse and patronage. Both the Mandal (1992) and the Nagaraj decisions (2006) want rigour as did initial decision in the OBC case (2007). Eventually, a lax approach seems to have continued. My own experience of arguing the Andhra Reservation cases for the Muslims is that Muslim demands for reservations are treated with greater strictness than Hindu demands.

But the Mishra Commission’s approach may defy acceptance. We know that the purpose of reservations on public posts is to ensure that those not adequately represented in the services can share the power of the State [see Mandal decision (prs. 694, 788)]. The Mishra Report wrongly invokes the “full sanction of the Article 16(4) of the Constitution” (pr.16.2.16) for 15% reservation for government jobs for Muslim, Christian and other minorities is on the assumption that all minorities must necessarily be backward (pr.16.2.17). But all Muslims, Christians and others are not backward – only some groups amongst them.

What is being insidiously resurrected is ‘communal representation’ under the rubric of ‘under-representation’. Communal electoral quotas in Parliament and the State assemblies are not being suggested. The 15% solution applies to empowerment in bureaucracy on the basis of in adequacy of representation. There are many communities and faiths which though notionally backward, are inadequately represented in the services. Emphasis on inadequacy of representation on the assumption of backwardness changes the ball game completely to encourage communally inspired demands for all. Such communal approaches were specifically excluded from the Constitution and smack of a barely disguised communalism. It is not clear whether this new quota will be an OBC quota or SC or ST quota? Or whether minority quotas will be written into these quotas or added to them? If added, the overall quotas will become 64%; if assimilated, they will cause heart burning in the OBC, SC and ST who will have their quota reduced from 50 percent to 35%. Muslims and Christians cannot generally be admitted to reservation. Reservations have to be of backward groups amongst them.

The 15% solution is also suggested for education. The St. Stephens case (1992) indicated a 50% cap on preferentially recruited minority students in minority aided institutions. In TMA Pai (2002) this cap was retained for these aided institutions but subject to the further limitation of getting minority students only from within the State where the institution was geographically located. Thus, a nationally renowned St. Stephen’s could recruit preferred minority students almost exclusively from Delhi! The Mishra Commission comes up with a 15% solution so that all “non-minority educational institutions should have ear-marked” 15% seats for minorities (pr.16.2.7). This is tit (15%) for tat (loss of 50% out of 100). It has no plausible constitutional basis and will make a further mess out of the existing jungle. Even after the 93rd amendment protecting the minority institutional rights in this way is not permissible. The 15% is to be divided into 10% for Muslims and 5% for other minorities to pure communal quotas in all non-minority institutions is contrary to both secularism and settled principles of affirmative action. The Mishra Commission assumes that the National Education Policy of 1986 identified Muslims and Neo-Buddhists as most educationally backward (pr.16.2.2.). That was 23 years ago without recommending a religion based quota.

However, the Mishra Commission rightly insists that SC and ST quotas must not only extend to Hindus but all similarly placed castes or groups in minority communities. Equally religious conversion does not change caste standing. The SC order (1950) was consciously designed for Hindus and later extended to Buddhists and Sikhs. The Commission is right. Castes are part of the Muslim social fabric. It should extend to Muslims and other minorities so that SC and ST lists become ‘religion’ free. Here Asha Das’s dissent seems to be misplaced. Such a religion free approach should exist for SC, ST and OBC. Equally, the Supreme Court’s decision in Soosai (1997) making it more difficult for converts from Hinduism to retain reserved status merits examination in the light of the Mishra report.

Proliferating language is important. A language dies every day. But for Pakistan, Urdu would have slowly died as a living language. A better prognosis was needed than implementing existing constitutional dispensations and the three language formula.

Without actually saying so (and suggesting the contrary), the Mishra report has moved away from rigorous ‘backwardness’ standard into a clumsy communalism. Lifting minority communities require a much more pointed and focused policy. The Mishra Report is a political report – a testament to political parties seeking communal vote banks by declamation rather than planned implementation. Beware of ‘wisemen’ bringing gifts.

LIBERHAN COMMISSION REPORT

2009-11-28T22:04:00.000-08:00

LIBERHAN COMMISSION REPORT
- RAJEEV DHAVAN

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.

Even prisoners have rights

2009-11-14T22:31:00.000-08:00

EVEN PRISONERS HAVE RIGHTS
- RAJEEV DHAVAN

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.

Telangana

2009-11-12T22:07:00.000-08:00

Telangana

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.

What's in an oath?

2009-11-11T22:33:00.000-08:00

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.

Exile or Home Arrest?

2009-10-31T22:30:00.000-07:00

EXILE OR HOME ARREST?
- RAJEEV DHAVAN

Maqbool Fida Husain, an art icon, has become a political toy. The Congress led Union Government has flashed support for his return to India. On 29 October 2009, it declared that it would approach the Supreme Court for a quick disposal of his cases. On 30 October 2009, he was assured ‘Z’ security. This is clearly a change of heart. In May 2006, Mr. Patil, the Congress Home Minister, issued an advisory to the Police Commissioners of Delhi and Mumbai that “there are grounds to believe that certain paintings of painter M.F. Husain which hurt the religious sentiments of the majority community, and, therefore might be a provocation for communal disturbance”. In other words: “Prosecute Husain. Criminalize his art as hate speech”. Karan Thapar reminded us of an old earlier interview where Congress Spokesperson, Jayanthi Natrajan responded on the need for protecting Husain by saying, “I don’t think it’s the highest thing on our list of priorities at the moment given the act of terror against our country (and) given (the) particular situation we find ourselves (in). It’s simply not the job of the government in my view.”

After all this, the government now wants to protect Husain and expedite his trials. The hype apart, the offer is a limited offer: the process of criminalization of his work will continue. He should give up his freedom in exile, give effect to his sentiment to return to India and virtually become a prisoner under home arrest with ‘Z security’. Husain pithily remarked that the government has not been able to protect his paintings, leave alone himself.

These new proposals are minimalist. They offer little by way of ‘law’ and an alluring feeler to civil libertarians, secularists and Muslims that the Union Government is prepared to go an inch or two forward. This controversy started thirteen years ago in 1996. In September 1996, Mr. V.S. Vajpayee called Husain a ‘butcher’ for allegedly painting Hindu goddesses in the nude. No real protection emerged when the Herwitz Gallery was attacked in 1996 and 2004. Husain’s South Mumbai home was invaded in May 1998. These sites remain unprotected. Mr. Ashok Pandey offered UP Minister Qureshi Rs. 100 crores to kill Husain or when in February 2006, Jashubhai Patel from Gujarat offered 1 kg of gold for gorging Husain’s eyes and cutting his hands off. Around the same time the Congress Minority Cell of Madhya Pradesh offered 11 lakhs for any patriot who would chop off Husain’s hands for hurting Hindu sentiments. What did the Union Government and State Governments do about these criminal exhortations to maim and kill Husain? An official party political protest? None. Legal action? None.

Instead eight complaints were filed against Husain all over India. In turn, in April 2006 warrants were issued in Surat and proceedings going on in Rajkot which were temporarily injuncted by the Supreme Court allowing Husain to appear through counsel to apologise. Had this dispensation not been granted, Husain would have been assaulted, possibly killed. Husain’s humiliation continued. Eventually on December 2006, all cases were transferred to Delhi. In August, 2008 his paintings were not displayed in an art summit even though the government had taken a mildly positive stance that his paintings be displayed. When Minister Ambika Soni inaugurated this summit on 22 August 2008, the Husain issue fell to silence. On 2 March 2009 Himachal removed a chapter on Husain’s life from an NCERT book on the basis that this would not “inspire students”. In fact, if anything, Husain’s ascent from footpath to India’s greatest artist is nothing if not inspiring. The point is that even protest by political parties was minimal even non-existent.

Meanwhile the legal processes churned on. We know that on 4 December 2006 complaint cases were transferred to Delhi by the Supreme Court. Then, on 8 May 2008 came a remarkable decision by Justice Sanjay Kishan Kaul which dismissed the case against Husain after balancing protecting art and free speech against the allegations of obscenity, and communalism under the Indian Penal Code. This is one of the most significant decisions on artistic free speech for a long time. Clearly, the rest should follow suit. Now, the government wants to expedite the cases. Surely this should have been done a long time ago.

There is a difference between the “law” and the “use and abuse” of the law. Unfortunately, our law is complainant based. In both civil and criminal law the ground of “vexations and frivolous” litigation has been narrowly construed to surrender to the view that even if a worthless case has something in it, the trial will go on. The concept of malevolent litigation is limited. The ‘abusers’ of the law and legal processes have the upper hand. Perhaps, heavy costs in such cases to meet actual expenses and for violation of fundamental rights might deter such ‘abusers’ of the law. But judges, imbued by their own biases and predilections are mild except in dealing with contempt law in the judges’ defence.

Equally significantly, India’s substantive law on hate speech (whether anti-feminist, obscene, racist, anti-dalit or tribal or communal) is drifting from a strictly applied concept of “hate” and what is “objectionable” to a more lax approach of “hurting sentiments and sensitivities”. This further strays into virtually forbidding what others do not like. Many people may not like something. They may misconstrue motives. They may politically invent sensitivities to gather support and votes. These are realities of ‘hate’ speech litigation which is usually inspired by hate. The Husain litigation is an example of this– nothing more, nothing less.

Into all this, we have to bring in the concept of apology. Nelson Mandela saved South Africa by his policy of truth, reconciliation and apology. In Indian law there is little scope for apology at pre-litigation and trial stages. Some minor criminal cases are compoundable. Even “hate litigation” has no scope for “reconciliation” and “mercy”. I say this because Husain has genuinely apologised to a point of removing all paintings within his gift from public purview. That a Muslim is prevented from painting Hindu gods and goddesses in forms which they have depicted for centuries is tragic. But he has apologised.

What weight do we give to this genuine apology? One complainant in the Supreme Court agreed to withdraw his complaint because of the apology. Why cannot the others do the same? If they do not, it is because they are diehard fundamentalists committed to being unreasonable. These ‘die-hards’ are vulnerable to pressure – not just from secularists (whom they ignore) but from the BJP which should bring peace by publicly declaring that Husain’s apology be accepted. Many are not happy with Husain being driven to apology. But Husain has apologised. What we need is a campaign: “Accept Husain’s apology”.

As far as legal processes are concerned the High Court’s jurisdiction be invoked. Justice Kaul has already given a landmark judgment. The High Court be urged to decide expeditiously. This litigation has to be brought to an end.

Unrelenting fanatics can only be kept at bay by providing security for Husain. In the meanwhile, 1969 painting of Husain was sold at Christies, London for Rs. 3.1 crores. But commercial justice cannot be a substitute for a real remedy.

When should judges not hear cases

2009-10-12T22:22:00.000-07:00

When Should Judges Not hear Cases
- Rajeev Dhavan

Justice Kapadia has raised an obscure but interesting question, on when judges should recuse themselves from hearing a case. Sometimes Supreme Court judges do this because they have participated in the case in the High Court below; and, do not want to sit in appeal on their own decisions. Attitudes differ. Some judges feel that if they have only passed a minor order in the Court below, they should not hear the matter. However, in a matter from Rajasthan, where he had been Chief Justice, Justice Lakshmanan disarmingly asked the lawyers at the bar: “Do you object to my hearing this matter?” Dutifully, the lawyers invariably say: “We have full confidence in your objectivity.” Some judges, however, will not touch a case which they considered in any capacity in the court below.

The second class of cases is where the judge recuses himself because he has a personal interest in the case. The obvious example is where it is the judge’s own case, or that of his family or a close friend. The more indirect example is where a judge has some truly remote nexus with a case which has nothing to do with the issues of the matters before them. Irrespective of what the case, Justice Sujata Manohar in the Supreme Court would not hear matters concerning a big Bombay Corporate where she had shares.

An irresponsible controversy was raised about Justice Kapadia participating in the controversial Vedanta case where he was a member of Forest Bench which allowed the mining of bauxite in Orissa in a eco-sensitive tribal area subject to various concessions and conditions. I say the controversy was irresponsible because I must candidly state, that Justice Kapadia is an upright judge whose integrity is unquestionable. Disclosing his interest, Justice Kapadia disclosed that he owned some shares in Vedanta and with candour asked the lawyers appearing in the case whether he would recuse himself from hearing the case if the lawyers had any objections. Or words to that effect. Distinguished lawyers told the judge that he may proceed to hear the matter. Without casting any aspersion on the judge (and there are none), the question is : was this the right thing to do?

My pen travels in the direction of Pinochet case (1999). Five Law Lords heard the case, affirmed Pinochet’s extradition by a majority of 3:2 and declared he had no immunity. Lord Hoffmann was with the majority. After this decision, it was suggested that Lady Hoffmann was connected with Amnesty International. Amnesty had been heard in the case. It was further clarified that Lord Hoffmann was a Director and Chairperson of a sister charity of Amnesty. In the follow up on Hoffmann’s recusal House of Lords observed: “However, close these links are, I do not think it would be right to identify Lord Hoffman personally as being a party to the appeal”; and added that cases of automatic disqualification were not limited to cases of proprietary and pecuniary bias. Indeed, this question arose over Lord Denning not hearing Barclay’s Bank cases because Lady Denning had shares in that Bank.

Similar questions have arisen in India. Prefacing the due process requirements of natural justice, the law declares that justice should not only be done, but must appear to be done. The usual test is: was there a real likelihood of bias? The higher you go in the judiciary; the confidence of the people becomes more and more important because the fate of the nation is often in the hands of a bench of the Supreme Court where one judge can tilt the balance. In Lord Hoffmann’s Pinochet case, the Lords took the view the judge’s interest should be disclosed; and added that “(i)t is no answer for the judge to say that he is in fact unpartial and that he will abide by the judicial oath”. At this level, it is better that even if there is no likelihood of bias and no opposition from any lawyer and litigant, justice must appear to be done.

The Pinochet case came to India through the Punjab Civil Service (2006) case before the Supreme Court of India. Here judges, who had decided a service matter in the Punjab High Court on the administrative side, heard the case on the judicial side. Justice Sinha in the Supreme Court plaintively asked: “We also fail to see as to why two senior Judges who had headed the Committee should have been made part of the Bench (that decided the case)”. The Punjab judges, with disarming candour, asked lawyers appearing in the case if they had any objections. There were none. The judges heard the case. What can any Counsel say under these circumstances? If he says the judge should recuse himself, there would be a mild accusation of bias? If he says the judge should continue to hear the matter, justice may not appear to be done even if there is no bias. Equally, no lawyer wants to lose favour with the judge. Justice Sinha took a tentative view that this was a fit case for judges to automatically recuse themselves. However, Justice Dalveer Bhandari held that the lawyers green-signalled the judge to continue waived their right to future objection. Raising the defence of waiver seems strange. All this was not over just winning or losing a case. It was a question of justice; and confidence in the judiciary.

Personally, it is not fair for a judge to ask lawyers whether he should recuse himself from a case. No lawyer can truthfully answer such a question either on his own behalf or on behalf of a client. It is a question that the judge himself alone can answer. To pass this on for advice from a lawyer in the case is self defeating.

With this, I return to the Vedanta case. Justice Kapadia impeccably followed a practice that if no one objects, a judge may proceed with the matter because his interest in the matter is too remote or incidental to affect the outcome. The practice is not wholly settled. Some judges seek clearance from the bar and the parties; some judges do not. The latter judges do not put the issue to consensual resolution. Justice Kapadia left it to the Bar after stating his interest. That in itself was admirable. But it is not for the bar to decide whether the judge should sit on the bench for a particular matter or not. For those who want to embarrass Justice Kapadia, let them forbear. He is unimpeachable and straightforward.

If a judge has shares in a company, and a case comes before him which affects the company’s prospects and standing, the judge should refuse to hear the matter. This should be a case of automatic recusal. This is what I argued half successfully in the Punjab case – convincing one judge. In the Vedanta matter, any permission was going to enhance Vedanta’s standing and prospects.

There may be cases where the doctrine of necessity requires a judge to hear the matter because no other judge is available. But that is not the case here and would depend on the nature of the judge’s interest.

This article is not about Justice Kapadia or the Vedanta case. This important issue surfaces all the time.

Mumbai not Bombay

2009-10-03T22:20:00.000-07:00

Mumbai not Bombay
- Rajeev Dhavan

How long will this continue? To what extent will the Thackeray family usurp and function of the Censorship Board? In the present milieu, why did it become necessary for Karan Johar to seek and agree to follow the censorius advice of Raj ‘Censorship’ Thackeray? Is this the real state of affairs in India? Does ‘social censorship’ override legal censorship? In the past apologies had come from Amitabh Bachchan. Michael Jackson paid a visit to Bal Thackeray, Deepa Mehta’s Water found a watery grave even before filming in Varanasi. After release, film theatres have been targeted in Gujarat over films Modi did not agree with. Social censorship has become easier and more dominating than legal censorship.

The latest addition to social censorship is over Karan Johar’s ‘Wake up Sid’. At places, the film described the famous city by its old name (Bombay) instead of the new one (Mumbai). The new one is ostensibly the name of the old village of centuries ago. The actual new city of Bombay has known no other name than Bombay until now. A statement made by Raj Thackeray objected that the film used the word “Bombay” (which it has been for several recent centuries or decades) instead of Mumbai (which was, allegedly, the name of a pre-Bombay village) to describe the city. The film itself has nothing whatsoever to do with the Bombay/Mumbai controversy. It is not a political statement. It is the story of a rich person’s son who finds himself out of favour for insolence to the family and looks to find a job of his struggling choice. But, the use of the word ‘Bombay’ enraged Raj Thackeray, the Sena and their friends. May be, it didn’t enrage them. Divisive politics has become emotionless in the hands of its patrons. But Raj Thackeray made sure that until Raj was appeased by apology and compliance, the film was in jeapardy. It was not Thackeray who went to Johar’s house for making a request for removing the word ‘Bombay’ from the film. It is Johar who came in the contrite proverbial sack cloth and ashes to seek forgiveness and leave pre-censorial justice to Raj. The latter was insistent, uncompromising and self satisfied that a great wrong had been committed. The solution was a disclaimer apologizing for the use of Bombay instead of Mumbai. Thackeray so ordered, Johar had no choice but to obey. If he had not followed these prescriptions, protests would have been organized in Mumbai – even Maharashtra. He was the self appointed custodian of Mahrashtrian rage. The film would have picketed, the prospects of the film’s release would have been blighted. The loans on the film would have mounted. Pirated versions would have finished off the commercial prospects of the film.

State censorship is bad enough, but politicized social censorship is ‘nasty, brutish and short’. In India, various legal forms of censorship exists – under the Indian Penal Code, Customs Act, Criminal Procedure Code (which has ban provisions) local statutes and so on. The incidence of censorship is high. The list is endless: Salman Rushdie’s book, Taslima Nasreen’s novels, the film Black Friday. The celebrated Raj Kapoor was taken to court for the film ‘Satyam Shivam Sundaram’. Many TV films were liberated into broadcast or circulation by the Supreme Court and other courts including ‘Aakrosh’ on Gujarat violence, ‘Chand Bujh Gaya’ on rioting, Anand Patwardhan’s ‘Ram Ke Nam’ and his documentary ‘In memory of Friends’ on Bhagat Singh, the TV serial on ‘Tamas’ by Bhishma Sawhney, Ore Ore Gramathile on casteism and many more. The courts have been vigilant for free speech – including cinema and TV speech.

Earlier, the Supreme Court’s in the celebrated Romesh Thappar case (1950) suggested that pre-censorship was prima facie invasive of free speech. We are concerned here with speech before publication, distribution or circulation. However in KA Abbas’s case, (1971) the court allowed pre –censorship in cinema because of the nature of the medium. The only form of legal censorship permissible is by, and under, a law which is reasonable and within the constitutional categories of public order, the sovereignty and integrity of India, defamation, decency, morality, contempt of court and incitement of offence. But the exercise of this power has not been given to Raj Thackeray, but to the film Censorship Board set up under the Cinematograph Act 1952 which was upheld in the Abbas case. The principles to guide the Board are the very same as the limitations that are in the Constitution. The film is reviewed by experts under the Cinematograph (Certification) Rules 1983. The process is rigorous including viewing. There have been misgivings that the Board has been over-bearing, angular and conservative. But, the complaint is that it goes over the top. The view of the Board is final. It can be challenged as it was in the case of the Bandit Queen and other films. But some deference has to be given to the Board.

The Supreme Court went one step further. In Shankarappa’s case (2001), an argument was made that if the film was released there would be a law and order problem. The court rejected this facile objection. Such factors were taken into account by the Board. It was the duty of all authorities to follow the Board’s decision. The Court went on to say: “It is for the State Government concerned to see that law and order is maintained. In any democratic society there are bound to be divergent views. Merely because a small section of the society has a different view, from that as taken by the Tribunal, and choose to express their views by unlawful means would be no ground for the executive to review or revise a decision of the Tribunal. In such a case, the clear duty of the Government is to ensure that law and order is maintained by taking appropriate actions against persons who choose to breach the law.”

The government could review the decision of the Board. But it could not disobey. There can always be protests about a film, but not threatening violence. Criticism is maximally permitted. But it can never be blackmail. Don’t see the film if you do not want to. The legal censor is the Censor Board not Raj Thackeray. Or any one else. To allow Raj Thackeray the right to pre-censorship defies both democracy and the rule of law; and signals the end of governance.

So far, our Constitution has been Inida’s framework of governance. Unlike other new constitutions, India’s constitutionally directed governance has succeeded where others have failed. Social attitudes and pressures will always exist. But for social censorship to topple legal governance is an invitation to chaos.

One curious tail piece. Because the High Courts of Bombay, Calcutta and Madras are chartered and not amenable to simple statutory changes. Even after Mumbai replaced Bombay for all other purposes, the High Court of Maharashtra is still called the “High Court of Bombay’!

Beyond that, if this is how constitutional governance is gazumped in what was Bombay and is now Mumbai – I cry for you.

Dinakaran Affair

2009-09-19T22:20:00.000-07:00

The Dinakaran Affair
- Rajeev Dhavan

If Justice Dinakaran is not fit to be a Supreme Court Judge, why is he fit to be a High Court judge? Did the collegium slip up when they made him Chief Justice of Karnataka? Or, indeed, when he was appointed a judge? What now? What next?

India has a grand higher judiciary, with enormous powers which it has expanded by appropriation. The good judges get on with what they have to do. The ‘bad’ judges rest content that they are immune. No one can touch them. They cannot be removed except by impeachment which is long drawn and imperfect. Some judges resign, such as Shamit Mukerjee. Some fight their way through the legal process such as Justice V. Ramswami (who was saved by Parliament) or his father-in-law, K. Veeraswami (who was saved by the Supreme Court). The good judges are becoming mediocre. The bad judges under-perform and are suspect. At many levels, judicial decision making is inept. Judicial office carries pomp and ceremonies on a daily basis. Compared to the Bar, judges are poorly paid, confronted with temptation and with post retirement blues. Some hanker for government jobs after retirement. Some make lakhs after retirement as arbitrators. The era of the great judge seems over. This pessimistic account is a painful honest assessment.

The ‘Dinakaran’ imbroglio brings many of the problems of the new method of appointment into focus. The charges against him are: (a) land grabbing on his estate to enlarge his holdings to 550 odd acres where he is sign-posted as an “Emperor,” (b) corruption in judicial decisions by (i) granting bail to hardcore criminals under suspicions circumstances and (ii) in various cases especially in the Binny Cotton case (where alleged concessions made by government counsel are denied). He is also challenged for petty things such as not allowing Justice Shylendra Kumar to declare his ‘assets’ on the Karnataka High Court website. Justice Paul Daniel Dinakran’s declaration: “I’m wealthy, I don’t need to be corrupt” is not sufficient. I once asked a rich uncle: “What does one give to the man who has everything”. The rich birthday boy replied: “A little more of everything”. Theoretically being rich is not a defence for bad financial behavior. Justice Dinakaran has a case to answer on disproportionate assets in violation of the law and suspect decision making. Advocate G.S. Visweshwara of Bangalore is right in asserting that allegations are not proof. But, how do we proceed? The Advocate Association of Bangalore says he be denied work. There is a more serious move to boycott the Dinakaran bench. The Bar Council of India has expressed doubts about his appointment to the Supreme Court. Some Madras High Court lawyers have long list of possible charges. The Tamil Nadu farmer’s association wants his alleged appropriation of government waste land in Kaverarajapuram in Thiruvalluvar examined not just as a land grab, but in total violation of the land ceiling Act. Some lawyers support the judge; some are hostile.

Justice Dinakaran has declared that he will not accompany the ‘judges exchange’ delegation to Australia. There is a lot of doubt whether he deserved to be a delegate over others in the first place. Someone seems to have a soft spot for him. But the process of his appointment needs scrutiny. Under the Supreme Court’s dispensation the collegium (at present Balakrishnan CJI, B.N. Agarwal, S. Kapadia, Tarun Chatterjee and A. Kabir JJ) decides. In addition, the collegium should know the views of other Supreme Court judges who had knowledge of the judge – in this Katju and Ganguly JJ. who had been Chief Justices of Madras and Cyriac Joseph and Ravindran JJ who had been at Karnataka. Rumour has it that this full consultation did not take place with these judges. The CJI had called in Justice Dinakaran on 15 September 2009 to get a full explanation backed by documents. On 18 September, his case went to the collegium who were unable to come to a view.

How did this insular and insulated collegium come into place? In Supreme Court decisions of 1982, 1993 and 1998, the Supreme Court hijacked the power to make High Court and Supreme Court appointments. Was this hijack constitutional? The answer is ‘No’ – except that the Supreme Court made it the law of the land. Five ex-Chief Justices of India have told me that it was a dream solution, which is now not working. But judges do not want to give up this exclusive mastery over judicial appointments.

The collegium has not investigated the potential appointments, properly. Apart from reading some judgments of such potential appointees, the collegium has nothing to go on except rumours and their own biases or prejudices. If there was ever an ill informed and skewed method of judicial appointments, it is this. High Court Chief Justices and judges (including sitting judges of the Supreme Court) make it a point to call on the CJI and other Supreme Court judges to win favour. One successful appointee going for an appointment with the CJI before his appointment asked: “What should I call him: ‘My Lord’ or ‘Brother’!” The collegium claims to go on seniority and exceptional merit. This is not followed. The executive, which has both knowledge and bias has minimal significance due to the Court’s hijack which selects a lowest common denominator basis.

Judges are scared that the present system of exposure by a few lawyers through the Committee of Judicial Accountability (COJA) is an unfair bloodhound method. My chamber senior Kapil Sibal clearly thought this was the case, when he argued the V. Ramswami case into stalemate. I believe that this ‘private’ lawyer ombudsman method is not totally fair. For me, Fali Nariman and Anil Divan leading the case against Justice Dinakaran gave greater credibility to a process that otherwise crucifies judges in the media. Yet lawyer inputs into the process are important, meaningful and cannot be denied.

The answer is to (i) give up the collegium, (ii) have a transparent system of selection, (iii) allow comments by the bar and various jurists, (iv) give the executive a better role, (v) make a decision with the full input of all Supreme Court judges (some of whom learn of new appointments through the newspapers), (vi) give the judge a hearing before the whole court where an adverse decision is possible. These proposals can be implemented now.

For the future, we have the following alternatives: (i) Senate confirmation – following the US method (which is inappropriate to India), (ii) an ombudsman over the collegium suggested by Fali Nariman which is also inapposite, but exposes the need for an investigative tool and (iii) a National Judicial Commission with inputs from lawyer, and others. This last solution has been aired since 1973 after the supercession controversy. This is the appropriate solution.

Constitutional governance succeeds because of a system of renewal. Parliament is renewed by the people through elections. The civil service is renewed by selection through the Public Service Commission. Judges are selected by a closed, inept and irresponsible process. Yet they decide matters that invalidate laws and ever constitutional amendments. The National Judicial Commission is the answer. But will judges give up the cozy, but dangerous, power which they have mis-appropriated.

Secrecy and the Supreme Court

2009-09-05T22:28:00.000-07:00

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.

The Brethren

2009-08-27T22:49:00.000-07:00

The Brethren
- Rajeev Dhavan

There is a myth about the brotherhood of judges. In India, the higher brotherhood consists of High Court and Supreme Court judges. Although the Supreme Court is supreme, it is self confessedly not infallible. Justice Reddy’s account of Keshvananda’s case is hilariously disturbing. The ‘right’ and the ‘left’ judges opened up in acerbic dispute. It words could wound, they did. Way back in the 1960’s, a Gujarat judge judicially declared that he was duty bound to follow the Constitution not the Supreme Court. The High Court judges are bound to follow the law laid down by the Supreme Court (Article 141). But the brethren do not have to like each other. The pretence to do so increases when High Court judges have to be on best behaviour if they want to be Chief Justices of High Courts or on the Supreme Court. The relationship may be feudal; and caste based and affiliation considerations do not elude judicial appointments. Chief Justices are first amongst equals.

Public disagreement began when Justice D.V. Shylendra Kumar declared that the Chief Justice of India (CJI) could not speak for all the judges. Frankly, he was right. The judges were not individually consulted. There is no law that asst cannot be declared. The CJI probably does not even know the names of all the High Court judges. True, as former CJI Verma put it, the CJI must lead, but he must lead by example. Perhaps, initially this is a case where the CJI should not have gone to the press at all especially as the issue was before Parliament and the Supreme Court itself was in litigation in respect of the Right to Information application before the Courts. But the CJI is a public person and he is constantly asked questions by the press. So he answers their queries. Thus, without being controversial, he gets involved in controversy.

But, for the Chief Justice of India (CJI) to say of a brother judge that he was “publicity crazy” on the 23 August 2009 seems embarrassing not just for the judge but also for the brethren. The CJI’s view that the declaration of assets should not be made public was defensive – seeking to avoid embarrassment for the brethren. But, it so happened that the brethren were more embarrassed by the ‘half secret’ strategy of declaration without publication. Some judges felt they had nothing to hide. In fact, this was the view of many Supreme Court judges - made clear in the conclave meeting of the Supreme brethren on 26 August 2009. The question in the public minds on merits was: which was more embarrassing - the half secret policy or the full disclosure policy. The judiciary has a lot of power which it exercises with both courage and craft as well as to ambitiously enlarge the judicial power. This has already made the Indian judiciary the most powerful in the world. But, in a democratic set up in an open society, confidence for the judges and the judiciary has to be won. It does not fall like constitutional manna from heaven. The more ambitious an institution and the more broad based its popular appeal, all the more essential that the confidence of the people be ignited and continued.

A small needle of suspicion in the minds of the people about hidden assets and the last bastion of the rule of law would collapse. It cannot be over looked that there are already allegation of corruption against the judiciary. Enter the famous 1 in 5 (20%) of judges are corrupt; former CJI Bharucha’s deprecatory, but flamboyant, estimate. From the Bombay crisis of the early 1990’s to the Delhi crisis of the early 2000’s and the recent lingering crises in Allahabad and Chandigarh, many controversies have surfaced. But what is worse, is not the controversies that attracted publicity, but the rumours; and, they are many. The worst way to quell these rumours is to have a half secret policy whereby the judges reveal assets to the CJI, who will keep it under lock and key.

The public are as curious about their judges as they are about parliamentarians. It is the Supreme Court in the Common Cause and Association of Democratic Reforms cases which set the norm for public disclosure. Why should judges not be part of this open policy? In fact, judges who collectively decided lakhs of cases every year have greater reason to declare that their income has not gone up during their tenure. Many judges were successful at the bar. Some were not. Market place selection does not always choose ability best. Judges sacrifice a lot to become judges. Earlier High Court judges were often appointed in their 30s, now they are usually appointed in their forties – some in their fifties. The sacrifice is immense – combined the life of cloistered virtue they have to lead. But, the brethren, like Caeser’s wife, have to be above suspicion. In these troubled times, it is essential.

In my view, Justices D.V. Shylendra Kumar, K. Kannan, Chandru and B.H. Marlapalle led the way in stating their intention to declare their assets. We can cavil that they are “publicity seekers”. But, in this case, they have been rebels. They have, in fact, cut the guardian knot of this long lingering controversy which has engaged the RTI authorities, the Delhi High Court and the Supreme Court.

It is to the credit of the CJI that even though he adopted a variant ‘half secret’ view or ‘hidden-from-the-public’ approach that he was amenable to listening to his colleagues and change his mind to adopt the ‘full disclosure’ approach. The Supreme Court’s conclave discussion of 26 August 2009 also shows the openness and balance that we expect from the judiciary. This is, in fact, the governing principle of judicial decision making: firmness in decision making but always with an open mind.

The Supreme Court has also made it clear that judges will not entertain queries from the disclosure made on the website. This stresses that the disclosure is for the public interest and not to enable litigants, lawyers and the media to harass judges.

The Supreme Court and the rest of the higher judiciary have still a long way to go in the matter of judicial appointments and oversight over judicial indiscipline (including corruption). Our present methods to deal with these issues are weak. We need a National Judicial Commission.

Publish and Be Damned

2009-08-24T22:48:00.001-07:00

Publish and be Damned

Rajeev Dhavan

India guarantees free speech, but takes it away at will. Free speech is expensive. Censorship free. If the government does not get you, the goons will. If the goons are unleashed, their party bosses will act as pontiffs. The spiral of social and state censorship in India is increasing.

Jaswant Singh is an amiable man – not normally controversial. But he is a caught in the worst controversy of his life – humiliated by his political friends and unceremoniously expelled from the BJP without the dignity of courtesy or due process. His book Jinnah: India- Partition-Independence (Rupas, 2009) presses the case for Nehru, Sardar Patel, Gandhi and Mountbatten as the guilty men of Partition – to partially absolve Jinnah. Here, I am not really concerned with the merits of the controversy espoused by politicians like Lohia, lawyers like Seervai, historians like Ayesha Jalal, British apologists like Campbell-Johnson. History’s laws of causality are not so remote from commonsense or law. It seems incongruous to totally absolve Jinnah of his blackmail and insist that only the blackmailed goofed. Yet the latter cannot be given absolution. This argument will continue. No one can stop or silence it.

In our times the forces of censorship have been apocalyptically unleashed themselves like the dogs of war. India suffers two kind extreme censorship: social and state. The advent of social censorship is as frightening as it is spectacular. Hindutva’s protest against Deepa Mehta’s Fire and the Water. The filming of the latter stopped in Benares. Hussain’s paintings targeted for destruction. Art galleries destroyed in Gujarat. The library of the Bhandarkar Institute in Poona ransacked. An academic work on Shivaji banned in Mahrashtra which even the Supreme Court dealt with circumspectly. Even actors like Amitabh Bachchan are immediately and respectfully apologetic lest their films meet tension on the circuit. The now immortalized Michael Jackson paid respects to the Shiva Sena supreme to safeguard his concert. The BJP has impliedly supported this thuggery since its political existence depends on maintaining this vitriol. What was silent emerges in Arun Jaitley attack on Jaswant Singh’s book that his political party cannot “allow any member, more so a frontline leader to write and express views against the party’s core ideology”.

It is idle to contend that it is the RSS that is holding the BJP back. It is the BJP that flaunts its hindutva based censorship and uses it to political advantage. Disciplining Jaswant Singh is one thing, banning his book quite another.

With this we move to state censorship. To ban and burn books seems medieval. Under Indian law banned published material suffers forfeiture under Section 95 of the Criminal Procedure Code (Cr.P.C.) - to lie in government godowns with rats, mice; and eventually to be pulped or burnt. Books and material can be banned in three principle ways : (i) ban import and export under customs laws by the Union Government, (ii) ban by state governments, (iii) ban under local laws. Salman Rushdie’s Satanic Verses was banned in 1988 under customs law. So, too, in 1951 a photograph of Nehru wearing imperial robes! The book and film Nine hours to Rama. Earlier during the British period Katherine’s Mayo’s Mother India, Mrs. Gandhi banned Michael Brecher’s biography of Nehru in 1975. This is a deadly power.

But the real ban and forfeiture power vests with the states under the Cr.P.C. against publications on sedition, national integration, obscenity, promoting religious and other enmity between groups, or deliberately and maliciously outraging religious feelings. There is a rich history of bans including parts of Dayanand Saraswati’s Satyaratha Prakash, books on Islam and Christianity, the Communist Manifesto, Lenin’s Imperialism and so on. After independence, various states exercised this power principally to deal with communal situations, obscenity or political bans. In the later category was a ban on Congress Ka Khuni Itihas upheld by the Rajasthan High Court in 1951 and Sheikh Abdullah’s speeches in Nawa-i-Kashmir protected from ban by the Patna High Court in 1963 on a technicality. The courts were reasonably vigilant. In 1971, a ban on Agnee Pareeksha based on the Jain Ramayana was quashed by the Madhya Pradesh High Court, as also the Periyar Ramyana by Justice Krishna Iyer’s path breaking judgment in the Supreme Court in 1977. The ban on the play Me Nathuram Godse Boltoy was quashed by the Bombay High Court in 1971. Sahmat’s poster on the several versions of the Ramayana was quashed in the year 2000 by the Delhi High Court. Conversely the Supreme Court upheld the ban on Lady Chatterji’s Lover in 1965 which continues today.

The power of ban is irresponsibly exercised. In 1995, Maharashtra banned Salman Rushdie’s The Moor’s Last Sigh because Bal Thackeray felt that a character had similarities to him. The Supreme Court over turned this ban. In 2003, West Bengal banned Taslima Nasreen’s Dwikhandito.

In 2004, Maharashtra banned Laine’s Shivaji which was objected to by the High Court and the matter is before the Supreme Court. In 2009, the UP banned Jaishree Mishra’s Rani. Curiously apart from State censorship, court ordered litigation bans on grounds of defamation were imposed. Such as the Delhi High Court on Kuldip Nayar’s India House on lawyers objections, Khushwant Singh’s book on Maneka Gandhi’s objection which were later lifted. A Madhya Pradesh Police officer managed a MP High Court in 2009 on Dominique Lapierre’s It was Five Minutes Past Midnight. McDonald’s Polyester Prince on Dhirubhai Ambani is also enmeshed in litigation bans.

The state’s ban power, devised by the British in 1899 has become an irresponsible shoot- from-the-hip power as we can see in the UP ban of 2008, the West Bengal ban of 2003 and the Maharashtra bans of 1955 and 2004 – as deserved earlier.

Modi and the Sangh Parivar have violently supported an abuse of social and state censorship, statutory bans require (a) an exact delineation of the offending material, (b) clear reasons for the ban and (c) in the specific categories of sedition, communalism, obscenity and the like. Bans should come after due process, but most states rely upon a “ban-first-and-judicial-process” later clause.

Modi’s ban seems outrageous. It is clearly for party political reasons. The excuse of inspiring enmity between groups to breach public order is a hoax. Gujarat has become a state where the ruling party manufactures disorder and then, appropriates draconian powers for communal use. If the ban is to safeguard Sardar Patel’s reputation and win the vast ‘Patel’ vote, this smells of political malafide. Modi would like to be seen as the ruthless chhota sardar who acts decisively. But abusing such use of the state power is a roguish exercise.

What do we do with this power? After 110 years, these provisions empowering the state to exercise vicious powers for party political purposes need to be reviewed. Pre-censorship powers should not exist at all. Even if a ban is absolved, it takes years through the judicial process. Arguments and thoughts should be answered as arguments and thoughts. Censorship is never the answer. Take away free speech, Indian democracy would be fatally bruised. Elected dictators like Modi are ill equipped to exercise this brahma astra which should suffer new direct statutory safeguards against political abuse. Alternatively they should be abolished altogether.

Hidden Assets in the Ivoy Tower

2009-08-10T22:39:00.000-07:00

HIDDEN ASSETS IN THE IVORY TOWER
- RAJEEV DHAVAN

Judges enjoy the opaqueness of their ivory tower. They are hugely powerful, having added to their armoury of power through the public interest law (PIL) movement, which has long since ceased to grow from the people. The power hunger continues. We can no longer presume that judges are above temptation. Chief Justice Bharucha’s deprecatory, but flamboyant, estimate - that 20% (1 in 5) of judges are corrupt - has not been dislodged from the public imagination. At all levels, judges can be rude, hasty and arbitrary – or even corrupt. This is not just the view of losing litigant or the frustrated lawyer. Fali Nariman’s frank advice: we have to take judges as we find them. But, judges cannot hide behind ivory curtains and demand confidentiality and judicial immunity from everything, including disclosing information which every public servant must disclose. The reason is obvious: immunity leads to impunity.

Over the last one year, public confidence in the judiciary is falling. The UP crisis of 2007-2009, alleging that a Supreme Court judge, High Court judges and District Court judges had received benefits from siphoned off employee funds, shook the nation. The Punjab crisis of 2008-2009 astounded the public. On 13 August 2008, a Rs. 15 lakh bribe intended for Justice Nirmal Yadav found its way to an innocent Nirmaljit Kaur – ignoring, as we must, saucy stories about the misadventure. A huge land deal was involved. In 2009, the CBI intimated the need for prosecuting Yadav. Nothing happened. In 2002, the State Chief Justice’s (Saharya) report deprecated the conduct of Justice Mehtab Singh Gill. In April 2006, the Vigilance Department taped two conversations between the judge and private persons. Earlier three Punjab and Haryana judges were taken off work. Justice Amarbir Singh Gill was asked to proceed on leave before retirement. Justice M.L. Singhal was absolved. The third was Justice Mehtab Gill. After this, nothing happened.

There were proceedings against Justice Shamit Mukherjee of the Delhi High Court, who resigned in 2003. In Madras, in 2009, Justice Reghupati disclosed he had been approached by a Minister. Recently, the Supreme Court denied Justice Kannadasan a post-retirement job because he was under suspicion, and not confirmed as a permanent judge of the High Court of Madras. This is the tip of the iceberg. Internal mechanisms of transfer of judges to other High Courts, non-allocation of work, or early retirement have not worked. Sometimes the wrong people are transferred, such as Justice Roy to Sikkim.

What will work? First: we cannot pretend we do not have a corruption problem in the judiciary. Second: secret informal solutions to deal with corruption and wrong behaviour by the Chief Justice of India (CJI) and other Chief Justices may continue; but they offer no real solution – in practice or theory. Third: what embarrasses judges is their financial lives being placed in the public domain – through the media. Fourth: a practical solution has to be found which will confront the real problem than misplaced notions of judicial self-embarrassment.

At present, some of the judges have a halfway house answer to these embarrassing facts – being more concerned about personal self-protection than public confidence in their work. On 7 May 1997, a Chief Justices’ conference declared that all judges should declare their assets to the CJI. Some did. Most did not. Successive CJIs have never examined the declaration given. The defaulters went scot free. So, the entire experiment of voluntary declarations failed. Judges did not keep their promise – in some cases not at all; in others without annual restatements of assets.

By 2009, the entire enthusiasm for transparency failed. On 6 January 2009, when the RTI Commission decided that the declarations of judges be revealed by the CJI, the Supreme Court rushed to the High Court to get an injunction order from Justice Ravinder Bhatt which he granted on 20 January 2009. So voluntary disclosure and RTI have both failed – all the more so because Attorney General arguing for the court hid behind the fact that the solemn promise of the judges of 7 May 1997 did not have the force of law!

Now, we have the Judges (Declaration of Assets and Liabilities) Bill 2009, which no one is happy with. Attorney General Vahanvati thinks “corruption in the judiciary is over-blown by the media”. On 1 July 2009 the CJI opposed the declaration of assets being made public-seeking some kind of procedural immunity. This was reiterated in an interview of 4 July. The Bill itself denied the declarations the disinfectant of candour, transparency and exposure to the public domain. On 20 July 2007 Law Minister Moily seemed to accept this pressure to accede to the CJI’s view.. On 21 July 2007, a suggestion was attributed to the cabinet that the declaration to the CJI be reposed in the President (which means the Cabinet). This was like taking milk to the cat. On 3 August 2009, a stormy debate followed in the Rajya Sabha. Arun Jaitley objected to clause 6 of the Bill on non-disclosure to the public and immunity from enquiry or query. He lambasted the government for leaking the Bill to the judiciary before introducing it before Parliament, which the government denied. MPs on all sides (eg. Brinda Karat, Jayanthi Natrajan, D. Raja and others) demanded a rethink. The irrepressible Ram Jethmalani called the Bill “a conspiracy in corruption”. Faced with a possible defeat in the votes, Law Minister Moily deferred the introduction of the bill.

We have to discuss this on principle. Principle I: Every public servant – judicial, executive, legislative or otherwise should declare assets, including receiving any presents from anybody, as a matter of public duty. Principle II: To support a system of such declarations, the voluntary duty should be supported by a statutory duty. Principle III: All declaration of assets of the public servant should be published and accessible through RTI, subject to exclusions which in the case of judges relates to the judicial decision making process. Principle IV: Since such declarations are similar to income and related tax returns, the declaration should also be sent to the tax department. Principle V: There can never be immunity from prosecution, but investigations and prosecutions should be subject to the sanction of the Chief Justice of India for High Court and Supreme Court judges; and the Chief Justice of the High Court for the lower judiciary. Investigations can be made by a special agency. Principle VI: Mechanisms must exist for informal investigations ordered by the CJI and other Chief Justices of High Courts. But the existence of such mechanisms cannot provide impunity or immunity from prosecution. Principle VII: A Judicial Commission is necessary with powers and mechanisms for appointments, investigation, reprimand, punishment and removal which will eventually be done through the impeachment process.

It is the judiciary that has taught us the value of freedom of information for governance. For judges to exclude themselves from RTI or object to bringing these declarations of assets in the public, is a volte face in the wrong direction.

Time to Act

2009-07-28T22:42:00.000-07:00

PILSARC Editorial

How do we protect our heritage? On what basis? Through whom? India has a rich heritage which goes beyond the tourist money earning monuments in Delhi, Jaipur, Fatehpur Sikri, Bodh Gaya, Rajasthan, Khajuraho and various temples. The 'active' sites are protected by their use and endowments. The tourist sites have been privileged, but the neglected sites suffer from dilapidation and decay.

The Ancient Monuments and Archaeological Sites and Remains Act 1958 (originally enacted in 1904 by the British government in India) and the Antiquities and Art Treasures Act 1972 do not provide an adequate framework and are jumbled in their empowerment and aims. Separate legislation like for Hampi, Champaner and Majuli experiment with originality, functionability and conservation. Meanwhile, private parties have extended into the fray – some sophisticated and some with the mind set of business contractors.

In the absence of comprehensive and rigorous laws regulating heritage conservation in India, the Supreme Court has been more advanced than the executive or legislature in providing protection to heritage in India. The Supreme Court has established that heritage is part of Article 21 of the Constitution, and in numerous cases involving conflicts between heritage conservation and industrial development, the Court has ruled in favour of heritage conservation. But the Court cannot really deal with the how-to-do features of heritage conservation.

Heritage extends beyond monuments and sites to landscapes, customs, paintings, traditional knowledge, living areas, and other facets of intangible heritage such as songs. The National Commission for Heritage Sites Bill 2009 has defined the term “heritage site” under section 2 (c) of the Bill. This definition is essentially similar to the 1972 World Heritage Convention definition and limits its scope to heritage of ‘outstanding universal value.’ Therefore heritage of national and local importance is outside the purview of this Bill.

PILSARC is involved in an ongoing project on heritage conservation and law in collaboration with the School of Planning and Architecture. It is hoped that this project will lead to a draft national law which incorporates broader understandings of heritage conservation. For more details on the project, please contact the PILSARC office.

Mother's Right to Choose

2009-07-23T22:31:00.000-07:00

Mother's Right to Choose

Rajeev Dhavan

Should the pregnancy of a mentally retarded rape victim be terminated? Can one go one step further and order her sterilization? On 21 July 2009, the Supreme Court reversed the Punjab and Haryana High Court’s decision of 17 July 2009 to rule that such a mentally retarded may have a baby. This is Chief Justice Balakrishnan’s victory for justice and common sense to prevent society from abdicating its responsibility to unborn children and those yet to be born. The rape victim was born on 8 December 1991, and, being mildly mentally retarded, placed under the guardianship of the Missionary of Charity till 28 December 1991 and then to the government’s Institute of Mentally Retarded Children in Chandigarh. Restless, she ran away on 20 March 2005 to be returned by the police to the Nari Niketan and then on 13 March 2009 to Ashreya – both being government institutions. Unfortunately, a Roshan Ara Khatun claimed, and then rejected, her as a long lost daughter. It is now clear that the victim was repeatedly raped by an employee. That part of the story remains hidden and needs to go further. On 18 May 2009, a Medical Board found her to be 8-10 weeks pregnant.

What was to be done with the unborn child? The two State governments and the medical authorities descended like a ton of bricks against the birth of the unborn child. On 27th of May 2009, the Medical Board recommended the abortion of the foetus on the basis that she was a mild retard, would have difficulty looking after the baby, genetic traits could visit the baby. Eugenics is a frightening reason for disinheriting the future in the case of a mild retard. But, the ‘termination’ of unborn baby was supported by the Chandigarh administration (through lawyer Anupam Gupta) claiming to act as the parent (parens patriae) to the woman; and, perforce, grand parent-in-law to the unborn child. The Advocate General of Punjab, Mr. H.S. Mattewal, spoke of humanity in favour of killing the foetus. It was left to the amicus curiae before the High Court, my friend, former Advocate General, R.S. Cheema assisted by his junior Tanu Bedi (who argued the case in the Supreme Court) to “debunk … the eugenic myth” and urge that the womb-baby could be totally normal. This set the stage for the second argument that, in any event, humanity required society to take care of even orphaned babies! Cheema was supported by Attorney General Hooda from Haryana.

The Abortion Act (on Medical Termination of Pregnancy) 1971 is harsh in presenting both eugenic and welfare aspects of the matter. Abortion is made easier in rape cases; but eugenics values are brought to abort if there is a substantial risk of physical and mental abnormalities being passed on, to cause serious handicaps for the child. But, here the Chandigarh government wanted to apply it to a mildy retarded person for whom it was acting as a guardian parent. What a parent? Unfortunately, the law, governments and people can be merciless towards people with disabilities. You cannot kill the living, but charity towards the unborn is easily blighted. Some humanity in attitudes was brought in by the Disabilities (Equal Opportunities and Full Participation) Act 1995 followed by the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999. These latter legislations set the tone for society and state acting as a true parent for the disabled. In its attitudes, Indian society and government is miles behind. Instead of resolving its own humanitarian duties, Chandigarh Administration thought the problem be passed on to the Court.

The High Court having received one set of medical report invited an expert medical body to consider a twelve points parameter. The experts found her a mild retard incapable of raising a child; and leaving it open as to whether abnormalities can be passed on to the child. What was taken against her was also her lack of family and wealth. Thus, this becomes a class and poverty issue as well in favour of the rich and privileged.

This whole approach could result in society killing of unborn babies of retard or disabled mothers from poor or orphaned background. Whatever happened to society and the State’s responsibility! There are few social policy discussions on this. American Justice Holmes’s advocacy of sterilization in Buck vs. Bell (1927) where “Three generations of imbeciles were enough” was based on 19th century eugenics and humanity. The whole approach of the Punjab and Haryana High Court (supported by two governments) as seen through its 12 point grid seemed to ask how ‘inconvenient’ would it be for society to allow the birth of and rear this possibly mentally retarded child of a poor orphan? The original India’s abortion act of 1971 confined the mentally ill provisions to “lunatics”. After 2002, it included “mentally retarded persons”. This was a cry for a less rigid approach. Without getting into Catholic Christian and Muslim views on abortion, there is a vast difference between the right of abortion of women based on consent and the state or courts ordering the death of an unborn baby. We have to start with the assumption that all babies have a right to be born except if the mother does not consent. Some argue that this is enough; other nations say that there must be some public interest risk to the mother. Good or bad eugenics is not the answer. It smacks of “survival of the fittest” through a process of de-selection of children of even the mildly mentally retarded! If we go this far, should there be a sterilization programme also?

If history has been unkind, especially to mentally disabled, there are also stories of what such disabled are capable of, if given equal opportunities. Theoretically we may exhort society and the state to promise to look after the disabled. But we know that, in fact, this is done under miserable circumstances. Money, time and resources are needed – especially in India where care systems collapse and drift and sink into entropic decay. But is that a reason for removing unborn babies from our social midst? If that argument is taken further, it can be extended to those alive, who are too old, too difficult to look after or ‘redundant’ or a drain to the political economy and of no ‘use’.

All this seems like an event where medical experts act as Roman emperors and put their thumbs down for those whom they feel society does not need; and are better off dead.

For the moment, the Supreme Court has stepped in and allowed the baby to be born – indicating that institutional care and help is necessary. A stern warning needs to be given to institutions and courts who order abortions for the mentally ill on the anvil of inconvenience.

Implicit in the Punjab High Court’s decision was an attitude that deals with life and death in too pragmatic a way. Fortunately, the Supreme Court was there to reverse the damage. But it cannot monitor all decisions; nor can it totally shift our focus from an inconvenience approach to something on a surer moral foundation.

Stop the Madness

2009-07-21T22:56:00.000-07:00

PILSARC Editorial

“I read that Rs.5 lakh was spent on a helicopter and Rs5 lakh was spent on petrol. It went to Meerut, Ghaziabad and Mathura. Why did it go? To give Rs25,000 to a girl raped in Meerut. In another rape case of a deaf and mute woman, her husband was given Rs25,000. In a third, the father of a girl who was raped and killed was given Rs75,000...I say (the victims should) throw such money at Maya and tell her that if she (Maya) is raped they are ready to pay her Rs1 crore...”, these were the U.P. Congress Chief, Rita Bahuguna Joshi's comments expressing anguish at the plight of Dalit women raped in Uttar Pradesh and trying to draw chief minister Mayawati's attention to crime against women. In spite of her intentions, the form in which these statements came out were certainly derogatory, triggering of an extreme reaction from the BSP cadre, followed by legal action.

A portion of her house was set on fire allegedly by the BSP activists and she was detained by the police for the remarks made. An FIR was lodged in the Majhola police station under the Schedule Caste, Scheduled Tribe (Prevention of Atrocities) Act, 1989; section 153A (promoting enmity between two groups on ground of religion or caste) and 509 (word or gesture aimed at outraging the modesty of a woman) of the IPC and section 7 of the Criminal Law Amendment Act. On 16th July, she was arrested and remanded to 14 days’ judicial custody and released on interim-bail on 18th July.

Ms. Joshi’s defence to the remarks made, is that she wanted to highlight the plight of the Dalit women. Ms. Joshi’s statements were certainly not in good taste, bordering on inflammatory. As Mr. Yogendra Yadav puts it: “In UP, politicians do not know how to be politically offensive without being personally vulgar”. In spite of being derogatory, Ms. Joshi’s remarks have some grain of truth in them – according to a data 50% of the complaints registered with the National Commission for Women (NCW) are from UP.

The UP Government was paying compensation in cases where Dalits were victims of rape or murder (ironically, the Mayawati administration was only following the compensation norms fixed by the Narasimha Rao government in 1995 in the form of rules framed under SC/STs Prevention of Atrocities Act 1980). The rules prescribe that in the case of rape, the Dalit victim is entitled to compensation of Rs 50,000 with the proviso that 50% of that sum should be paid immediately after her medical examination and the balance at the conclusion of the trial. On 17th July, Mayawati said in a press conference that her party did not approve of the monetary compensation for rape and murder victims given under the SC, ST Act as it hurt the pride of Dalits, and she would repeal the SC/STs Act.

Two years ago, Mayawati had sparked controversy by attacking Mulayam Yadav, then chief minister, for his own plan to compensate Muslim rape victims, calling on Muslims to pay hefty compensation to Yadav's daughter if she were raped. Today, Ms. Joshi has switched roles with Mayawati. In this political din, the real issue of Dalit women being raped has been forgotten. On average, a woman is raped every hour in the country – only one in 70 cases get reported.

PILSARC condemns the violent reaction by the BSP cadre by burning Ms. Joshi’s house. Such a response will only add to the problem. We believe that Ms. Joshi’s statements as well as BSP reaction were extreme and unwarranted. The people involved in torching Ms. Joshi’s house, should be booked and punished as a deterrent against such acts in the future. Congress should take responsibility for Ms. Joshi’s derogatory remarks and seriously think whether she deserves to continue as the UP Congress Chief. A well functioning democracy calls for dialogue and debate, not rabid statements and arson.

Without Prejudice

2009-07-21T22:54:00.000-07:00

WITHOUT PREJUDICE
Regulation of Surrogacy in India
Gayatri Sharma

The Indian Council for Medical Research [ICMR] approached PILSARC with a draft of a proposed legislation to regulate assisted reproductive technology in India. PILSARC undertook to review the ICMR draft and suggest changes and on 15 June 2006, PILSARC handed over to the ICMR its revised proposals for an ART legislation titled “the Assisted Reproductive Technology (Regulation) Bill, 2006.” The ICMR circulated the revised draft amongst relevant experts for comments and suggestions. The revised draft is available online.

The desire for children and the social pressure on women to conceive is undoubtedly high. In Spain, Maria del Carmen Bousada de Lara became the oldest woman to give birth at the age of 66 in 2006. Her death two years later brought to light that she had lied about her age to the fertility clinic in order to avail of fertility treatment. In India, Rajo Devi Lohan, gave birth to her first child at the age of 70 with the aid of in vitro fertilization (IVF) treatment in November 2008. Rajo Devi's husband had married her younger sister in an attempt to have children, but when that failed and social ostracism grew, a neighbour informed the family of IVF. A 72 year old woman in the U.K has reportedly spent 30,000 Pounds on IVF in the attempt to conceive. IVF is a complicated and invasive procedure, yet thousands of women seek to undergo the treatment or alternatively search for surrogate mothers.

It is in this context that the Assisted Reproductive Technology (Regulation) Bill and Rules 2008, drafted by the ICMR in consultation with PILSARC needs to be examined. PILSARC did not attempt to draft rules or regulations for the implementation of the legislation as such an exercise would have required more time and expert interaction. The current ART Bill 2008 is a much modified version of the PILSARC draft. It is widely assumed that the Bill legalizes commercial surrogacy; however, in fact both the PILSARC draft and the ART Bill 2008 are silent on the issue of commercial surrogacy. Section 2 (t) of the ART Bill 2008 defines surrogacy agreement as a contract between the person(s) availing of assisted reproductive technology and the surrogate mother.

There are several important differences between the PILSARC version of the Bill and the current ART Bill:

* A definition of 'couple' has been added in the ART Bill 2008, which "means the persons living together and having sexual relationship that is legal in the country/countries of which they are citizens or they are living in." This definition did not exist in the PILSARC version. Section 32 (1) of the Bill states that "Subject to the provisions of this Act and the rules and regulations made thereunder, ART shall be available to persons including single persons, married couples and unmarried couples." Same sex couples have not been included in this clause and it is implied that same sex couples living in or citizens of countries that criminalize homosexuality cannot avail of ART facilities in India. This includes most Indian gay couples. Section 377 of the Indian Penal Code was recently read down by the Delhi High Court; however, homosexuality remains illegal in other States of India and it is unclear how the legislature will react to this judgment. A verdict by the Supreme Court is awaited on the constitutional validity of section 377.
* Section 20 (10) of the ART Bill 2008 states that "No assisted reproductive technology clinic shall consider conception by surrogacy for patients for whom it would normally be safe to carry a baby to term. Provided that where it is determined that unsafe or undesirable medical implications of such conception may arise, the use of surrogacy may be permitted." The PILSARC version did not stipulate this restriction.
* Section 38 (11) of the PILSARC draft - "If the person or persons who have availed of ART do not accept the custody of the child, the surrogate mother shall be entitled to claim all expenses, including maintenance, in relation to and on behalf of such child from them" - has been deleted. However, section 34 of the ART Bill 2008 states that all expenses of the surrogate mother related to the pregnancy achieved in furtherance of ART shall be borne by the couple or individual seeking surrogacy until the child is ready to be delivered, as per medical advice, to the biological parent or parents. Section 38 (11) of the PILSARC draft is far clearer and prevents a repetition of the Baby Manji case, where a Japanese couple divorced and no longer wanted the child carried by an Indian surrogate mother.
* Section 34 (16) of the ART Bill 2008 states that "In the event that the woman intending to be a surrogate mother is married, the consent of her spouse shall be required before she may act as such surrogate." This requirement did not exist in the PILSARC version.
* Extensive Rules have been added to the ART Bill 2008. These need to be reworked on as the sample application forms/consent forms at times contradict the Bill. For instance, Forms D, E, and F require the signature of a 'couple' or a husband and wife for availing of surrogacy, even though the Bill permits single individuals from availing of surrogacy.
* There are other differences in the two Bills; including additions of definitions, changes in the composition of the National Board and an increase in its powers to conduct research on human embryos, expansion on the duties of an ART clinic, regulation of research on embryos, and rights and duties of patients, donors, surrogates and children that have been made in the ART Bill 2008.[1]

The ART Bill 2008 is conservative. While the idea of regulating surrogacy is pragmatic and potentially beneficial to both the surrogate mother and the couple or individual who wish to avail of a surrogate, the ART Bill 2008 imposes restrictions that reinforce heterosexual and patriarchal assumptions.

The ART Bill needs to either delete its definition of 'couple' or expand it significantly to include all those involved in an intimate relationship and impliedly capable of looking after a child. It will then be clear that the Bill does not discriminate between couples in availing of ART facilities. Section 20 (10) of the ART Bill is confusing. A woman may be biologically capable of giving birth but unwilling to do so for any number of reasons. Sarah Jessica Parker has been rumoured to avail of a surrogate mother as she did not want pregnancy to interfere with her acting career. By refusing such women the right to avail of surrogacy, the Bill is playing a discriminatory moral game, which has not been justified by the ICMR as no statement of objects is provided in the Bill. Section 34 (16) of the Bill is based on an assumption the wife cannot make decisions pertaining to her own body without the consent of her husband, and that her husband actually cares about this decision. It neglects the reality that many married couples are separated and that women seek economic independence irrespective of their husband's views.

The ART Bill 2008 has generated criticism from women's organisations and legal groups such as Sama and Lawyers Collective. Greater consultations are necessary with lawyers, feminists, child activists, and medical practitioners before such a Bill can be enacted.

[1] For a full list of the differences between the two Bills, please contact the PILSARC office.

Babri Masjid - Time for Truth and Reconciliation

2009-07-13T02:19:00.000-07:00

Babri Masjid - Time for Truth and Reconciliation
Rajeev Dhavan

From a totally different viewpoint, kavivar Bachchan’s words come to mind: Kya bhuloon, kya yaad karoon mai? (What shall I forget, what shall I remember?). Is the destruction of Babri Masjid to be forgotten? As part of the triumph of ‘forgetting’ over truth? After 17 years, is the Liberhan Report irrelevant? Are we no longer interested in the truth?

There are many ways to perceive the fall of Babri Masjid. Counsel for UP simply told the Court “I hang my head in shame”. Introducing the BJP White Paper (February 1993) L.K. Advani unrepentantly praised the “kar sevaks … for erasing a symbol of our subjugation (and) … begin building a symbol of resurgence (to show us) as if in a flash how far we have to travel”. Secularists found the act “barbaric”. 6 December 1992 was a watershed in India’s secular governance. Before there were communal riots, the wanton slaughter of the Sikhs in 1984 and rath yatras. Religion took politics by storm. But 6 December 1992 was the remorseless destruction of a mosque.

There is little point in talking of historical revenge. After 1947, citizens simply cannot destroy a religious building they don’t like. The suit was pending. The Constitution disallows such sacrilege. 6 December 1992 sends a chilling message that lumpen Hindus provoked by the Sangh Parivar can always terrorize any community or their mosques, churches, holy places with total impunity. After Babri Masjid fell, there were ‘no-holds-barred’. No one could touch these marauders. Photographs identifying the miscreants were available, they were not ferreted out. Everyone was interested in getting the big-wigs (Advani, Joshi, Uma Bharati). Even that was botched up. After 1992, all hell broke loose against Christians, Muslims and others. Revd. Staines and his sons were murdered. In Bombay, police joined the Hindu rioters with action and inaction to murder Muslims. Muslim painters like Hussain were harassed. The Godhra riots in 2002 showed how a pro Sangh Parivar state of Gujarat can permit the killing of Muslims with impunity. Art galleries and libraries were ransacked. A terrifying politically inspired and protected Hindu fundamentalism was let loose with satanic results.

Should 6 December 1992 be forgotten? On what terms? Just because the Liberhan Report has been egregiously delayed does not mean it can be ignored. Clearly the BJP and Sangh Parivar (as self evident from repeated statements) applaud 6 December. They now want the Mathura and Benares mosques; or any other. There is some confusion over PN Oak’s thesis that the Taj Mahal was originally a temple! But the Taj Mahal is too secularly ‘sacral’ to invite such sacrilege! Who knows?

Now what is to be done with the Liberhan Report? The legal significance of a commission’s Report is that it is fact-finding. No further prosecutions may flow from it. Somehow in India we take the shameless view that public indictment is not enough. Our leaders only fear the public humiliation of criminal conviction. Advani was cleared by Mr. Jethamalini in the Hawala transactions on a technicality. Sibal got Narsimha Rao on the MP bribery case. Both these lawyers were politically rewarded. No one is interested in the truth. No one will accept the truth and bow out of political life. We live in a political milieu of save-your-hide-at-all-costs.

The Liberhan Report has all the hype of a make believe ‘who-dunn-it-mystery’. What was the role of Joshi, Advani, Vijay Raje Scindhia, Ashok Singhal and others who watched from a terrace? There is a great moral obfuscation. The Advani-Joshi rath yatras were uncompromisingly for kar sevaks on the site of the Masjid. The provocation was clear. After the site fell, L.K. Advani’s preface to the BJP White Paper praised the kar sevaks for their historic destruction. Ruchira Gupta’s evidence to the Liberhan Commission on 14 November 2006 stated when the second dome fell Uma Bharati hugged Joshi with joy. Mrs. Scindhia said, “Ab meri ankhon ko shanti mili hai (my eyes are at peace now). Meanwhile, Ruchira was attacked, under the cry “Mussalman! Mussalman!” Reportedly, Advani was concerned that the kar sevaks might get hurt! When asked by Ruchira (to whom Advani had given his binoculars) why did Advani not stop the mayhem, he was quiet. Ruchira Gupta had accompanied Advani for the last four days. Advani was clear that he was not going to sweep the floor on the site. It was kar seva at all costs. He “swore by Ram that the mandir will be built here.”

We are not here concerned with the criminal conspiracy cases going on in Rae Bareilly and Lucknow. The law will take its course. But Commissions of Inquiry are not concerned with criminal liability but fact-finding. In this case, the purpose of the Commission was also to consider who is morally and politically culpable? Due to Commission reports, TT Krishnamachari and Kairon resigned in the 1950s. The idea behind a Commission, is partly to shame even the shameless and to ensure that what happens shall never happen again. In the case of the Babri Masjid, there was a comprehensive failure – by the BJP and Sangh Parivar, the State of UP which did not use the centre’s battalions and the Centre standing idly by Kalyan Singh was found in contempt of the Supreme Court. Narsimha Rao’s contempt was never decided by the Supreme Court when he was alive. Unfortunately, everyone – no less the media – feels that the only significance of the Liberhan Commission is whether it can be the basis of criminal liability.

There is an unfortunate controversy about whether Liberhan had treated Advani lightly. The former counsel to the Commission Mr. Anupam Gupta has gone public to suggest Liberhan took a ‘soft’ approach in this regard. This is unpleasant, a breach of responsibility and unfair. Liberhan denies all this. His distinguished record as a judge and Chief Justice of Madras and Andhra would not suggest susceptibility to bias. I argued Jaylalitha’s case before him for two years. He was impeccable. Like Justice Wadhwa’s report on the Staines matter he might have become ambivalent. But, we will have to wait.

The Liberhan Report must also depend on how we (the public) receive it and are prepared to receive it. There is a moral plane at which all governance works. Advani supported and provoked the kar seva, watched like Nero from the terrace and wrote an introduction to the BJP supporting this sacrilege as the correct moral and political thing to do. He does not want to own up to criminal conspiracy. But, he does own up to the sacrilege as a good thing – pointing to historical revenge as a reason. Basically, he seems to be saying, “I approve the destruction of the masjid. I saw its fall. I urged the kar seva and mobilized thousands. I watched from the terrace and joined the jubilation. I wanted it done. But I did not do it.” Today the official policy of the Sangh Parivar and BJP is that such destructions are good.

It is this official policy that makes the destruction of the Babri Masjid significant and divides the nation apart; and will continue to do so.

The Liberhan Report and the government’s Action Taken Report will help us review our conscience so that this kind of incident never happens again. But the Report should be released and not kept secret because the government’s ministers are slow at reading; and even slower at making up their mind. Our next step should be truth and reconciliation.

So near, yet so far

2009-07-10T03:20:00.000-07:00

PILSARC Editorial

"Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.." - quoting Nehru in their landmark judgment, Justice A.P. Shah and Justice Muralidhar have given the gay community a reason to celebrate.

Notwithstanding the fact that this judgment is only applicable in Delhi, it is certainly one of the most progressive rulings by an Indian court. The judgment declared "that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution". It expands the meaning of sex in the anti-discrimination article 15 of the Constitution, to include sexual orientation.

The battle is won, but not the war. This judgment has been challenged in the Supreme Court and the apex court has issued notices to the relevant parties. The decision of the Supreme Court will be applicable throughout the country. The Supreme Court is the last-leg of the race for the activists fighting for the abolition of this archaic provision, as the political will to repeal is certainly lacking.

The Delhi High Court judgment is a well reasoned one. The arguments advanced challenging this judgment are based on morality, morals of the majority. Our country has crossed the threshold of these arguments - else untouchability would have never been abolished. The hope is that the Supreme Court agrees with the High Court that "the underlying theme of the Indian Constitution, it is that of 'inclusiveness".

Leave Gays Alone

2009-07-08T22:29:00.000-07:00

Leave Gays Alone

Rajeev Dhavan

Even if the Union government was dilly-dallying on recognizing the sexual rights of gays, the Delhi High Court has decisively humanized the provision of unnatural offences in Section 377 of the Indian Penal Code on unnatural offences which criminalizes anyone who has by penetration “carnal intercourse against the order of nature with any man, woman or animal.” Punishment is for life or upto ten years and fine. Following the Wolfenden Report (1957), English law from 1967 permitted same-sex carnal intercourse – not without some protest at the time. The world has moved on to decriminalize gay sex to deal with social problems of gay marriage and gay couples adopting children. India has struggled with these provisions. In 1975, our Supreme Court refused to ruin the career of Chitranjan Dass and reduced his sentence to 2 months. Similarly in 1983 where no force was used, the same court reduced the sentence of Fazal Rah Choudhary. But the provision remained.

The wording of Section 377 was aimed at the frustrated Englishman’s boarding school and army habits which extended to bestiality (sex with animals) and is traceable to Macaulay’s prescription of 1837 enacted in India in 1860 around the time that the death penalty for buggery was abolished in England. Indian courts in 1925, 1983 and 1992 included oral sex within the offence. In 1983, the Supreme Court understood unnatural sex to mean “sexual perversity”, but no occasion arose to strike Section 377 down.

In the Delhi High Court, the challenge based on personal liberty, choice and unequal treatment wanted to limit Section 377 to apply only to non-consensual penile non-vaginal sex – treating penile non vaginal sex with minors punishable. There was evidence of how gays in Bangalore in 2004 were tortured. In 2007 a police tortured eunuch committed suicide. The 177 Report of the Law Commission (2001) found the law archaic. However, the 42nd Law Commission thought Section 377 was consistent with Indian morals – a stand supported by the Union’s Health Ministry before the Delhi High Court. By contrast the Ministry of Health dealing with AIDS wanted gays to be more transparent in their sexual activity so that AIDS prevention took place with candour amongst India’s estimated 2.5 million same-sex male couples which would improve the anti AIDS campaign. So, clearly the two wings of India’s government took contradictory stands.

Section 377 has not been struck down. It has been read down so that it is not applicable to consenting adults but applicable to minors. Previous cases will not be reopened. This judgment says that it is for Parliament to bring in a consistent law. Until then the judgment will prevail. Presumably if Parliament resurrects the offence again, at least the Delhi High Court will strike it down.

Strangely, recently, in the US, a gay Iraq veteran was discharged from the national guard for being gay. The Delhi High Court judgment is a brave and wise decision which will prevent the brutal harassment of ‘gays’ by police, employers and others to force them to live under conditions of hostility.

The mores on which section 377 was based are perverse both in their understanding of health morality, genetics and choice. The judgment should have clarified that this allows gay-sexual activity under conditions of privacy. But problems remain. The judgment is confined to Delhi. The Union Government is bound. But no positive order or quashing of offence can be issued to the state police and state courts of other states by the Delhi High Court. A victory for decency, this judgment should be appealed to the Supreme Court so that the issue is settled once and for all. Judges are more human than the gown that cloaks them. Chief Justice A.P. Shah’s judgment (also for Justice Muralidhar) should be upheld. Let the Supreme Court decide this for the whole country. Lord Byron said that nothing of soul is left, when the kissing (or for that matter, sex) had to stop. Between whom? The Delhi High Court’s answer is everybody who agrees and wants it.

The Right to Disbelieve

2009-07-08T07:12:00.001-07:00

The Right to Disbelieve

Rajeev Dhavan

I

India’s present controversies about ‘conversions’ have little meaning outside the politics of Hindutva. An anxious and vindictive Sangh Parivar’s stance - that no conversions of Hindus should take place - is clearly that conversions out of Hinduism are bad but reconversions back into Hinduism are welcome. What is flaunted as a policy against all conversions has been tailored to Hindutva needs. There are therefore, clear contradictions in the stance of the Hindutva. Accordingly conversions must stop; but reconversions are to be encouraged. People should move into Hinduism; but not out of Hinduism.

The Sangh Parivar’s stance on conversion and reconversion is mired in communal fundamentalism. No argument on conversion exists in a vacuum, and the Sangh Parivar’s policies on conversion are also part of a communal policy of persecution of Christians and Muslims. Unlike fundamentalism which consists of a die hard belief in one’s own faith, communalism goes further to pursue a policy of persecution towards other faiths through legal and illegal coercive methods. Fundamentalism and communalism may feed each other. A fundamentalist is entitled to cling to his orthodoxy, but a communalist is as menacing as his persecution. Proselytism is not per se communal. Many faiths claim to seek to convert others just as present day Hindus seek to ‘re-convert’ non-Hindus.

In India’s past, I have no doubt that conversions took place for ‘genuine’ and ‘material’ reasons – and usually a mixture of both. Ambedkar urged dalits to convert to Buddhism. Islam carries the allure of the equality of all in the eyes of Allah even though Hindu social stratification has caught up with many Indian Muslim believers. It seems astonishing that dalits are made to eat excreta in Tamil Nadu and persecuted for leaving the faith by conversion. It is not altogether true that conversions take place amongst the poor. Professor Kalam’s research into conversion in Tamil Nadu in the 1980’s presents a different picture. Way back in the Bengal of the 1840s, there were individual conversions in upper caste household like Krishnamohan Banerji and Madhusudan Datta. Richard Eaton’s article on “Conversion to Christianity among the Nagas: 1876-1979” (1984) Indian Economic and Social History Review 1876 suggests that a lot of Naga conversions took place after 1947 when missionary activity was falling. The Sangh Parivar assumes that all conversions out of Hinduism were coercive, achieved by dubious methods or due to perverse influences and poverty. To this is added a demographic fear that the Muslim population is growing faster than the Hindu population and will subsume the latter even though there are over 800 million Hindus as contrasted with 140 million Muslims. In fact those whose forefathers had changed their faiths generations ago are now considered to be true believers just as any other. Hindutva’s policy on conversion and re-conversion has a fighting edge. It is uncompromisingly tenacious. It is to be understood along with the physical targeting of Muslims and Christians through various embarrassingly wanton acts of cruelty and violence. As far as the legislation on conversion is concerned, it seems facially neutral. But a legislation is what a legislation does and is instrumented to do. The present spurt of anti-conversion legislation has been designed to be susceptible to misuse, harassment and intimidation.

II

The latest controversy over conversions has arisen because in late June 2009, the Centre refused to approve the 2006 Amendments to the old Madhya Pradesh Dharma Swatantra Adhiniyam 1968. The 2006 Amendments brought about a sea change in the old 1968 law. On 25 July 2006, the Madhya Pradesh Amendments were passed under conditions of chaos. Six other Bills were passed on that day. No discussion was permitted. Amidst slogan shouting over another issue, the Amendment was passed by voice vote. At that time, leader of the opposition, Jamuna Devi, felt that the purpose of these Amendments was to whip up communal hatred for political ends: “The RSS, VHP, Bajrang Dal were bent on making conversion an issue to keep the communal cauldron boiling”. In response to her request to return the Bill to the Assembly for further discussion, it was reserved for Presidential assent. The Presidential decision took three years. It should have come earlier – as the Sarkaria Commission recommended in these matters in 1988.

In 2006, on 8 April 2006, Rajasthan passed the Rajasthan Dharma Swatantra Bill 2006. There was uproar. The attempt to send it a Select Committee for careful discussion failed. Passed on the last day of the budget session, it was passed by voice vote – with the Congress and CPI(Marxist) boycotting the procedures. Pratibha Patil then Governor of Rajasthan considered the Bill carefully. I say this because I had sent an Opinion both on the Bill and the President’s powers to reserve the Bill. She asked for queries. Only when they were answered did she refer the Bill to the President. The Bill was like the MP Bill. Chief Minister Vasundra Raje played another constitutional card to have the Bill returned to the Assembly so that the Sangh Parivar dominated Assembly could pass the Bill again to out-trump Governor Patil. Alas, the Governor saw through all this; and, in any-event could not recall her decision to pass the Bill on to the President.

In September 2006, the Gujarat Amendment Bill was also passed by a voice vote. This Bill was not about introducing the surveillance model which had already been passed in 2003. This was a Bill suggesting that the surveillance permission model would not apply to conversion from one denomination to another or conversions between Hindus, Buddhists and Jains because they were considered as part of the same faith! The Gujarat Bill was to consolidate one big happy family of Hindus to include all Hindu sects, Buddhists and Jains. This too was done by a voice vote. All this took place even though leader of the opposition pointed out that in 2004, the Supreme Court had recognized the distinctness of the Jain faith. The discussion was under shotgun conditions. A small poll conducted around the time suggested the Bill was divisive. Experts said it was unconstitutional. Modi claimed that BR Ambedkar inspired him – overlooking that Ambedkar had left the Hindu faith for the Buddhist. Meanwhile a Delhi report suggested that on Ambedkar deeksha, 30 lakh dalits in the country converted to Buddhist. On 31 July 2007, Governor Nawal Kishore Sharma returned the Bill to the legislature on the grounds it was unconstitutional. Modi decided that it might be better for them to slam the minorities by misusing the unamended law 2003 with all the fury of a bigot.

Perhaps the story will be complete if we look at the antics of Ms. Jayalalitha who passed harsh anti-conversion legislation in 2002. But there was a furore. The Governor gave his assent. The furore continued. Ms. Jaylalitha realized the electoral implications of her actions and repealed the bill in 2004.

What do we make of the intervention of the Governor in respect of the Gujarat, Rajasthan and Madhya Pradesh attempts to amend their existing laws? One thing is certain: True democracy had failed in all these cases. Majoritarian Hindutva dominated legislatures had ramrodded the discussion through their respective legislatures. But such a failure is not sufficient reason for the Governor not to give assent to the Bill under Article 200-201 of the Constitution. Indeed, if this was the test few legislations of the Union or State legislatures would ever get passed. But, while considering all this, what is the test that the Governor should use to withhold consent and reserve the Bill for Presidential assent? The narrow interpretation of the Governor’s powers is that s/he is concerned with only maintaining a federal approach to reserve Bills which encroach on the jurisdiction of the Union legislature. The wider approach is that the Governor is the custodian of the Constitution and must consider whether the Bill is Constitutional and whether reservation of the Bill for Presidential assent is in the public interest. To be fair to Governor Patil (as she then was), she perceptively raised precisely these doubts that activist lawyers seeking my advice had to explain and allay. This is a vexed question. The Sarkaria report (1988) approving the Administrative Reforms Committee (ARC) took the view that this power was to be exercised in special circumstances to conclude (at pr. 5.6.13):

(i) Normally, in the discharge of the functions under Article 200, the Governor must abide by the advice of his Council of Ministers. However, in rare and exceptional cases, he may act in the exercise of his discretion, where he is of opinion that the provisions of the Bill are patently unconstitutional, such as, where the subject-matter of the Bill is ex-facie beyond the legislative competence of the State Legislature, or where its provisions manifestly derogate from the scheme and framework of the Constitution so as to endanger the sovereignty, unity and integrity of the nation; or clearly violate Fundamental Rights or transgress other constitutional limitations and provisions.

(ii) In dealing with a State Bill presented to him under Article 200, the Governor should not act contrary to the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in the Bill”

This lee-way given to the Governor cannot be reviewed by a court. This was made clear in Hoechst Pharmaceuticals case (1983) 4 SCC 45 at pr. 86.

“In such a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, still he having done so and obtained the assent of the President, the Act so passed cannot beheld to be unconstitutional on the ground of want of proper assent. The aspect of the matter, as the law now stands, is not open to scrutiny by the courts.”

This pretty much says we must trust the Governor and the Union Government!

The anti-conversion 2006 Bills passed by various state Governors and the role of the Governor raise serious issues of communalism, federalism and democracy. A tentative set of conclusions might be as follows: (i) Democracy can sometimes be at loggerheads with the constitution which abhors divisive communalism. (ii) Majoritarian Hinduism in various states has tried to flex its muscles to browbeat minorities – using anti-conversion legislation to do so. (iii) Normally, the validity of legislation is tested by the Supreme Court and High Courts. (iv) But, in their wisdom, the constitution makers also made the Governors and the President custodians of the public interest. (v) This is a power that can be abused, but this has not happened. Governors (such as Governor Patil) have carefully considered the anti conversion bills. (vi) Had these bills been approved by the Governors, havoc would have been wrecked on minorities and freedom of conscience. (vii) This mechanism of reserving bills for Presidential assent is part of the constitutional system of check and balances to protect its integrity. (viii) Even majoritarian democracies must be careful not to undermine or subvert democratic values.

III

The new legislation is the latest in a series of anti-conversion legislations already existing in Orissa, Madhya Pradesh, Chattisgarh, Arunachal Pradesh and Gujarat. These are copy cat legislations. There have also been several attempts to introduce a central legislation. However, the Parliament correctly refused to pass the Indian Conversion (Regulation and Registration) Bill (1954), and the Backward Communities (Religious Protection) Bill, (1960). With the change of power in 1966, the effort to introduce anti conversion legislation shifted to the states with Orissa being the first state to legislate on conversion through the Freedom of Religion Act, 1967. After that, Madhya Pradesh enacted the Dharma Swatantrya Adhiniyam in 1968. Both of these legislations were challenged in the respective High Courts; of which the Orissa Act was struck down in the Yulitha Hyde case (1973) and the Madhya Pradesh Act was upheld in the Rev. Stainislaus case (1975). Issues pertaining to the validity of both the Acts were addressed by the Supreme Court in the Stainislaus case (1977), which upheld the validity of both the Acts. Inspite of the Supreme Court’s approval of anti-conversion legislation in what is generally regarded as an unsatisfactory decision, no similar legislations were introduced other than the Arunachal Pradesh Freedom of Religion Act, 1978.

Since the late 1990’s, the debate over the regulation of conversions has again emerged as a mainstream issue, especially because of propaganda by the right wing parties. New anti-conversion laws have been introduced and existing laws have been strengthened in the states of Gujarat (2003), Tamil Nadu (2002) and Chattisgarh (2005). These various legislations show a certain generality in that they were all introduced by right wing governments and are focused on preventing conversions from Hinduism to other religions. Also, while all the legislations follow the general framework of the first legislation i.e., the Orissa Freedom of Religion Act, 1967, the latter legislations have become progressively more harsh and restrictive.

The Orissa legislation criminalizes conversion i.e., the renouncing of one’s faith and the adoption of another faith made through force, misrepresentation or inducement. The provisions are wide and include direct or indirect attempts to convert and the abetment of conversion as a criminal offence. The penalty is without prejudice to civil liability and is for a period of one year and/or fine of up to five thousand rupees. However, if the conversion was of a minor or a woman or a person belonging to the Scheduled Castes or Scheduled Tribes, the penalty was doubled. There is some control over the proceedings under the legislation as there had to be prior sanction by the District Magistrate for any offence under the Act. Thus, what was created was not a civil remedy to have a conversion set aside at the instance of the convert but a statute to potentially criminalize all conversions and to subject then to surveillance through police and magisterial intervention.

This framework has been adopted by all later anti-conversion legislations, but each state has made adjustments to address their specific needs. In the Madhya Pradesh Legislation of 2002, all conversions irrespective of the circumstances had to be reported to the District Magistrate and failure to do so would result in the same penalty as the actual commission of the offence. Thus, the focus shifted from checking unlawful conversions to policing all conversions. The three earlier Acts were almost similar in intent and effect.

The recent legislations have, through incremental changes, begun changing the nature of the offence. The Gujarat legislation of 2002 increased the penalty to three years and fifty thousand rupees, with an increased penalty of four years and one lakh rupees in the case of a Scheduled Caste, Scheduled Tribe, minor or woman. More importantly, conversions could now take place virtually only with the prior permission of the District Magistrate. Conversion from being the right of an individual was transformed into a privilege which could be exercised only by the authorities. Inspite of the increased control by authorities over conversions themselves, the supervision and control of the district administration over prosecutions by the Police under the legislation was removed. Later in 2007 Modi passed a bill of 2006 to treat Hinduism as a monolithic religion to include Buddism and Jainism. Under super-national pressure, Modi’s government withdrew the Bill.

The Rajasthan Bill of 2006, was in this line of anti-conversion legislations. It continued the trend of increasing the punishment for the offence involved and it provides the maximum penalty so far, with imprisonment of between two to five years and fine of up to fifty thousand rupees. Also, this legislation specifies that the liability under the bill is in addition to other civil and criminal liability, thus creating the possibility of multiple prosecutions. However, in addition to these changes, the legislation also has certain additions and omissions which make it substantially different from previous legislations. The most striking change which clearly demonstrated the partisan nature of the Bill is in the understanding of conversion; it is understood, like previous legislations as leaving one’s religion, but one’s religion is now not merely the individual’s personal faith, but the faith of the fore-fathers. In the context of the aggressive campaign of mass re-conversion programmes like ghar-vapasisi (return home or to the flock) which has been adopted by the right wing parties, this is clearly an addition with the specific purpose of creating loopholes by which the legislation will not apply to re-conversion programmes. The present legislation also differs in the manner in which the offence of conversion is criminalized. For the first time, the offence has been made non-bailable and cognizable, which is a deviation from all the previous legislations. The requirement of sanction of the civil-administration for investigation of the offence, which was present in all previous legislations other than the Gujarat legislation, has been removed. These changes which are a marked deviation from the earlier Bills demonstrate that while the Rajasthan Bill of 2006 is a part of a series of earlier legislations, it belongs to a new genus which treats conversion in a far more harsh and restrictive manner. Later the new Rajasthan Bill of 2008 re-enacted the old Bill and further added provisions which tried to decriminalise reconversion into Hinduism and proposed to take them out from the surveillance of the Act.

The Madhya Pradesh Amendment of 2006 legislation continues the new surveillance model with stringent oversight of the Act of 2003. The Rajasthan Bill was similar. The Gujarat Amendment tried to consolidate Hinduism to include all sects of Buddhist and Jains within its fold and effectively target Muslims and Christians. The Governor stopped it by returning the Gujarat Bill to the legislature, and reserved the Rajasthan and Madhya Pradesh Bill for Presidential assent. The Union has denied assent to the Madhya Pradesh Bill. The Rajasthan Bill is destined to suffer the same fate.

IV

The debate on conversions has to be understood in the context of the constitutional provisions as interpreted in the Supreme Court’s decision in the Stanislaus case (1977). But before, we enter the fray on the Court’s interpretation of the freedom of religion clause it might be useful to look at some of the discussions in the Constituent Assembly which framed India’s Constitution. The original Munshi and Ambedkar drafts considered in 1947 protected freedom of conscience and the right to profess and practice religion on 26 March 1947. It was the Munshi draft that was considered by the Fundamental Rights Committee to be placed in its report of 3 April 1947 – along with other provisions introducing the police power (subjecting these freedoms to public order, health and morality). From our point of view, the draft observed that while the right to “profess and practices” was protected, nothing was said about the right to propagate one’s faith. The real concern of A.K. Ayyar and B.N. Rau was that freedom of religion should not impede social reform. On this Raj Kumari Amrit Kaur, Hansa Mehta and KT Shah were clearer and more forceful. On 22 April 1947, there was some discussion on including the propagation of religion – with the major concern being social reform. But on a vote, the right to propagate was included with some markers pointing out that this right was already included in the guaranteed free speech provisions. When the freedom of religion clauses were debated on 1 May 1947, questions over religious instruction in school dominated. These were resolved by reference to a special committee which sought to present religious education in state schools. But the Draft Constitution of February 1948 clearly protected the “right to freely to profess, practice and propagate religion” (emphasis added). When the draft constitution was circulated, amongst other proposals, not too spirited response was made in some quarters to remove the right to propagate, which did not find acceptance. When the draft of the right to religion was debated on 3-7 December 1948, there was acute controversy over including the right to propagate in the freedom of religion clauses. Muslim member, Tajamaul Hussain, thought the right to propagate ought not be included because religion was a private affair. For different reasons, this approach was reinforced by Lokanath Misra who saw in the right to propagate all the evils that led to Partition. Eventually, the Assembly retained the right to propagate after taking into account that the right was not absolute but subject to limitations. The State would regulate conversions due to undue influence, money or presume, and it was already a part of the freedom of speech. Curiously, K.M. Munshi seem to take the simplistic view that in a secular state there is no premium attached to a religion increasing its numbers:

“In the present set up that we are now creating under this Constitution, there is a secular State. There is no particular advantage to a member of one community over another; nor is there any political advantage by increasing one’s fold. In those circumstances the word ‘propagate’ cannot possibly have dangerous implications, which some of the Members think that it has.”

He could not have been more wrong. Propagation and conversion were issues – not necessarily as part of a numbers game, but certainly in the corridors of Hindutva who felt that such propagation was an insult and injury to the Hindu faith.

We have already seen that an Indian Conversion (Regulation and Registration) Bill 1954 or the Backward Communities (Religious Protection) Bill 1960. As the Congress lost power, legislation was enacted in Orissa in 1977 (Freedom of Religion Act) and Madhya Pradesh in 1968 (Dharma Swatantra Adhiniyam 1968). The Orissa legislation was struck down (Yuhtha Hyde AIR 1973 Orissa 116) while the Madhya Pradesh Legislation was upheld (Rev. Stanislaus v. State of Madhya Pradesh AIR 1977 MP 163). Both these cases went up in appeal to the Supreme Court in Stanislaus v. State of Madhya Pradesh (1977) 1 SCC 677.

The Supreme Court’s judgment in Stanislaus was delivered by a five judge bench with the Chief Justice Ray writing the judgment for the Court delivered during the Emergency 17 January 1977. The Court concentrated on only two issues (a) legislative competence and (b) the meaning of the word “propagate” in the freedom of religion clause. For our purposes, we can ignore the legislative competence issue that the legislation is connected with public order (Judgment pr. 22-25) (although it is subject to doubt as to whether a nexus with public order lies). On the question of “propagation”, the entire observation of the Court needs to be quoted. The court observed :

“We have no doubt that it is in this sense that the word ‘propagate’ has been used in Article 25(1), for what the Article grants is not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike… It has to be appreciated that the freedom of religion enshrined in the Article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one’s own religion.”

This is all that was said even though this premise is flawed. But, it is a Constitution Bench judgment and we have to live with it. But the fact remains that the Court did not examine the provisions of the statute and test it against Article 21 and the new jurisprudence of due process. Unfortunately in Satya Narayan’s case (2003) 7 SCC 439 (Khare CJ and Sinha J) no notice was issued but the Court (pr.2) without hearing the other side (a judicial indiscipline by the court!) followed Stanislaus, and refused to examine the implementation under the rule because this point was not raised below. I was in Court when the case was dismissed, this judgment – order was clearly an afterthought delivered later! This is not the way.

But let us go back to the decision in Stanislaus which is imperfect and incomplete. The fact remains that apart from saying propagation does not include conversion, the Supreme Court has not examined any legislation or rules for due process and arbitrariness which is now essential to constitutional practice as well settled by a series of post-Emergency declarations. Equally, propagation is also a part of free speech (which was affirmed by the Constituent Assembly again and again) and is subject to reasonable restrictions. This has never happened at the instance of any court, including the Supreme Court. That is why it is necessary to examine the legislatures themselves. The first generation legislation (consisting of the Orissa Freedom of Religion Act 1967) was relatively simple. It simply prohibited conversion by ‘force, ‘fraud’ and ‘inducement’ and of a minor under 18 year (Section 3) and punishable by imprisonment and fine upto Rs.5000; and in the case of SC and ST mandatory to 2 years or Rs.10,000 (Section 4). The offences were cognizable inviting police arrest (Section 5) and to be prosecuted with the sanction of the District Magistrate (Section 6). The due process implications were considerable but not examined. The second generation legislation was the Madhya Pradesh Swantantra Adhiniyam 1968 which added the term “allurement (including gifts) but also added a provision of prior intimation to the District Magistrate – failure to do so being an offence punishable with imprisonment upto 1 year and fine upto Rs.1000. This was the beginning of the surveillance system. This approach was followed by the Arunachal Freedom of Religion Act 1978, The Gujarat Freedom of Religion Act 2003, the Tamil Nadu Prohibition of Forcible Conversion Act 2002, and the Himachal Pradesh Freedom of Religion Act 2006.

As time went on, this mild model gave way a fuller surveillance-oversight model. The Himachal Act of 1978 was different from the Orissa (1967), Madhya Pradesh (1968) Arunachal (1978) and Tamil Nadu (2002) statutes in that it permitted the District Magistrate to enquire into the matter through himself or any agency (Section 4). In the Rules of 7 July 2007 under the Himachal Act, the District Magistrate was given the power to issue notice and constitute inquiries on “the basis of any complaint on information” if he is of the opinion for reasons to be recorded a conversion was without notice or “force as inducement have been used or is likely to be used in any conversion”. Any interloper (of the Sangh Parivar) creates grounds for an inquiry and a police case (S. 4) to induce harassment! It is this surveillance approach that has become a defacto practice elsewhere. But the emphasis returned to police investigations. Since the offences were cognizable and abetment was an offence, the police court run riots into investigating whatever they wanted. Effectively what was created was a conversion police.

Fourthly, the Gujarat Bill of 2006 and the Rajasthan Bill of 2008 flaunts a policy of an imperial Hinduism by enunciating a protective approach to reconversions to Hindus on the assumption that all in India were Hindus, including sects which broke away from the Hindu fold as well as Buddhists and Jains.

I believe that the effect of these legislatures and the procedures they inaugurate have never been tested in a court of law. It is in the process that lies the punishment.

V

There is a huge literature which suggests that we must examine legislation in terms of their purpose, intent and effect. This is not just for purposes of judicial interpretation but also to consider whom the legislation empowers and for what purpose. Equally, the use to which a legislation is put may vary and change.

Clearly the devastating event was the destruction of the Babri Masjid on 6 December 1992. This sent out a signal that as far as the persecution of minorities was concerned there were no ‘holds-barred”. A random look at the events around 2002 when the Tamil Nadu and Gujarat legislature surfaced shows that stopping conversions and effecating reconversion was the policy of the moment. In Orissa, 72 tribal Christians were brought back into the fold (Hindustan Times 11 June 2000). In Bengal, the Jamiat-e-Ulema sought the government’s help against forced recoversions (Indian Express 8 July 2000). Two weeks later, converts in the Korma Village in Orissa were threatened with persecution. A couple in Delhi were hounded when a dalit married a Jat (Hindustan Times 25 September 2001). By 2001, the All India Confederation of SC/ST organizations declared that 10 lakh persons would convert to Buddhism (Hindustan Times 7 October 2001) and thousands did (Hindu 7 November 2001). The dalits complained that the government tried to stop conversions (Hindustan Times 6 November 2001). In Meerut, in December 2001, 300 dalit villagers converted to Buddhism (Hindustan Times 28 December 2001). Accusations ran wild. The Chief Superintendent of Pondichery Central Prison was fairly accused of forced conversions (The Week April 2001). Why should dalits not convert if a dalit near Simla was rebuked for entering a temple (Hindu 20 May 2002). No action was taken on dalit persecution. That is why there were protests against Jayalalitha’s conversion statute in Tamil Nadu (Hindu 20 Oct. 2002, Statesman 9 Oct. 2002, Hindu October 2002). In New Delhi, the Shiv Sena tried to convert Muslim children to Hinduism (Hindustan Times 20 June 2002). But when the 40 Hindus happily converted to Islam, the VHP claimed the conversion was forced (Hindustan Times 24 August 2002). The VHP wanted to make re-conversions in Wayanad in Kerala (Hindustan Times 23 September 2002). Following the Ordinance of 2002, Thomas Stephen reported religious fanatics were emboldened to attack a service in Keenathur, Thiruvannamalai (Report 24-29 Sept. 2002). The VHP and RSS wanted such Anti Conversion Laws every where (Hindu 8 Oct. 2002). Just as with the Dangs in Rajasthan in 2000, two years later Christian bashing started again (Statesman 10 Oct. 2002). The oppression of dalits continued. In Jhajjar, Haryana 5 dalits were killed by a Hindu mob for skinning a dead cow (Hindustan Times 19 Oct. 2002). In protest, a dozen dalits embrace Buddhism (Hindu 22 Oct. 2002). What was triggered off was the Jhajjar effect by which 100s of dalits converted to Bhuddhism on Dewali (Indian Express 6 November 2002; Outlook 11 November 2002). Curiously even Sri Lanka imposed a ban on conversions (Hindustan Times 19 November 2002).

It was due to threats that a mass conversion in Chennai by dalits was stopped (Hindustan Times 7 Dec. 2002). In protest, the Dalit Panthers changed Hindu names to Tamil (Indian Express 7 Oct. 2002). On Christmas day, 123 dalits converted to Christianity (Hindu 26 December 2002). That the oppression of Christians continued was clear from an attack on a Catholic Church at Nadia near the Bangladesh border (Statesman 29 December 2002). The BJP held a conversion camp for Christians in Khallari, near Raipur (Indian Express 30 Dec. 2002; Hindu 30 Dec. 2002). Dalits in India were converting out of Hinduism (Outlook 18 Nov. 2002). It is in this context that the Gujarat Conversion Bill 2003 surfaced. The Christians’ All India Council protested against a survey of Christians in Gujarat (Hindu 12 March 2003). The Christians were bereft – warning against illegal re-conversions in Gujarat (Hindu 2 June 2003). The answer to the legislation was 1 lakh dalits in Gujarat proposed to convert to Buddhism (Indian Express 4 June 2003). Mass conversions are triggered off by attacks on dalits (Times of India 10 Sept. 2003). Meanwhile the BJP planned a conversion law for Delhi (Hindu 22 November 2003). Dalits were banned entry into the Nathdwara temple (Times of India 14 January 2004).

The Jamiat questioned the claim of the VHP about 586 Muslim families in Rajasthan being converted (Hindu 19 Feb. 2004). Ahead of the Kumbh Mela, an anti conversion stir started to highlight cases on allurement (Indian Express 3 Feb. 2004) Kamala Suraiya became a Muslim who was harassed by those in her new faith but said “I’m pleased with Islam the for I’ve changed” (Hindustan Times 17 Feb. 2006). Senseless attacks on Christian and dalits took place in these troubled years – and continued to do so.

I have deliberately related this handful of events to demonstrate the validity of the Jhajjar effect; to show that dalits and others leave the Hindu fold because they find it persecutory and wanting. The legislations of 2002-3 were passed by Hindutva politicians as desperate measures in retreat. Unable to manage its own practices, Hindutva attacked others. Virtually all conversions are not conversions of convenience like those who enter into the Muslim community to facilitate marriage and which were outlawed by a Deoband fatwa (Mail Today 4 July 2008). The other faiths do not want forced conversions. They gain nothing. The pressure on dalits to convert arises because Hinduism – no less in belief and its practice has no place for them, even though there is pressure on them to reconvert as in the case of 1000 Christians of Tamil Nadu (Times of India 13 April 2008). The VHP also concentrates on tribal re-conversions (Times of India 1 April 2008). But the North East is Christian. That is why the new Rajasthan Bill of 2008 makes room for reconversion without criminalization or surveillance while confirming its policy against all other kinds of conversion.

VI

The truth of the matter is that conversions take place for genuine reasons – albeit a reaction to persecution. In turn the anti-conversion legislation is not passed so that conversions should be fair but to persecute those who wish to convert though policing and surveillance. Criminalizing conversion is not the answer. An unhappy convert can always convert and declare his reasons for doing so. But these are not matters for the police and District Magistrate.

In my view (a) Anti conversion policies are designed to promote and provoke hate. (b) These legislations arm the police and magistracy to harass minorities and dalits. (c) The Supreme Court has never examined the processed effect of conversion legislation. (d) Criminalizing conversion is wrong. (e) In the process lies the punishment. (f) These legislations are linked to political Hindutva and subject to abuse. (g) Politically these legislations should be abolished, abolished, abolished.

Sikh Refugees

2009-05-23T06:40:00.000-07:00

PILSARC COMMENT

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: pilsarc@gmail.com

Learning from 2009!

2009-05-23T06:35:00.000-07:00

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

2009-05-23T03:43:00.000-07:00

PILSARC COMMENT

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: pilsarc@gmail.com

Sri Lanka Crisis

2009-05-23T03:26:00.000-07:00

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: pilsarc@gmail.com