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.
Saturday, February 20, 2010
Saturday, February 6, 2010
Reservations for women
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.
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.
My Name is India
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.
- 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.
Saturday, January 23, 2010
Impeaching a Judge
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.
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.
Saturday, January 9, 2010
Police as Criminals
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
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
Wednesday, January 6, 2010
Conviction by Deportation
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.
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.
Friday, December 25, 2009
The 15% Solution
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.
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.
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