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

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)

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

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

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

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

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

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.

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

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?

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

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.

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?

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

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

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

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

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

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

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

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

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?

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.