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.
Saturday, May 15, 2010
Tuesday, May 11, 2010
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.
- 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.
Friday, May 7, 2010
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.
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.
Saturday, May 1, 2010
Snooping: Need for a Joint Parliamentary Committee
SNOOPING: NEED FOR A JOINT PARLIAMENTARY COMMITTEE
RAJEEV DHAVAN
Beyond “telephone tapping” lies the awesome world of surveillance, of which tapping is a part. The excuse for all this is anti-terrorism. The principle put forward: “Trust the government”. The revelations in April 2010 show Sharad Pawar, Digvijay Singh, Nitish Kumar and Prakash Karat’s phones were tapped. This was political espionage. It did not have the remotest nexus with terrorism. The targets of snooping were political competitors and opposition. Like Watergate. But Watergate brought down a President. India’s Manmohan Singh does not even want a Joint Parliamentary Committee (JPC). Way back when I was arguing the phone tapping case, I relied on L.K. Advani’s dossier of 1988 which showed that the targets of tapping were Messrs Vajpayee, Charan Singh, Jagjivan Ram, Chandra Shekhar, GK Reddy, Arun Shourie, Kuldip Nayyar, Tavleen Singh, President Zail Singh and Y.V. Chandrachud, Chief Justice of India. This did not prevent the Supreme Court of India permitting a broad power to tap to Government while recognizing the absence of legitimizing procedure under the archaic overbroad Telegraph Act of 1885. Confusion was created by lawyer Kapil Sibal conceding acceptance of system “short of prior judicial scrutiny”. Judicial permissions precede “search and seizure”. Surveillance and tapping should be no better. In 1997 the Supreme Court was content with “guidelines” on who, what, how and oversight. A Joint Secretary could authorize specific taps, valid for two months and extendable (destruction of materials if not required) and with an Oversight Committee consisting of Government Secretaries drawn from the Ministries of Home, Law and Telecommunications. Enmeshed in secrecy, the “guidelines” were a flop. The Supreme Court lost its chance to counter invasions of privacy while blessing an invasive surveillance.
Terrorism has provided some kind of false utilitarian justification for surveillance. Post 9/11 in 2002, the President of America authorized intercepting communication in what has come to be known as the “Terrorist Surveillance Programme”. This was publicly acknowledged after revelations in the New York Times in 2005. Codename Pinwale of 2005 devised how a data base of electronic communications could be used and misused. The original US law of 1978 was breached and went beyond orders given by the Foreign Intelligence Surveillance Court – not just of phones but also email - in massive exercises of “over-collection”. The Bush regime’s practice was legitimized by a 2008 amendment which meant much of spying would be authorized and undetected. In the Al Haramain’s case (2010), Judge Walker declared that following Congressional Statutes was not optional. Though federal Judge Anna Taylor in 2006 declared unauthorized wire-tapping illegal, the case lost its adversorial charm by appellate reversal on facts that tapping itself was not proved. Ironically when the Bush changes were made in 2008, the then Senator (now President) Obama voted for them! The present law now requires a warrant for eavesdropping on an American citizen or organization in America, but not for the rest of the world; or for all of us!
After considerable fumbling when an internal Lord Diplock Committee looked at taps after the event, UK’s Interception of Communications Act, 1985 was superseded by a Regulation of Investigatory Powers Act 2000 which along with the Police Act 1997 permitted covert surveillance. These changes came because the House of Lords in Khan’s case (1997) showed amazement at the lack of statutory regulation on snooping. The present UK legislation has been called a “snooper’s charter” and may be specifically “directed” or generally intrusive. Covert and especially intrusive surveillance even though authorized by authority (eg. Secretary of State) is too widely permitted for a broad spectrum of serious crime prevention, economic well-being and national security.
We concentrate on the US, England and Europe who have declared unofficial war against terrorism to enable them to conquer countries through war in the name of peace; and, maintain a global surveillance, for the purposes of arrest, torture and rendition. The European Court in Khass (1978) and Koll (1998) frowns on unauthorized surveillance. But the world of "intelligence" has grown into an uncontrollable monster of which India is an inefficient but dangerous part. It is now well-settled that UK's war on Iraq was contrived. Surveillance of Muslims leading to their house arrest in UK was set aside by the House of Lords in June 2009. What kind of place does India want in this 'global network'? We stoop to conquer, to try and get access to Headley; and are spurned, with arrogance, by a brazen US, who does not even pretend to be wily. Our location on this greatest of all global surveillance is that of a junior cadet – trusted when convenient.
But is a US-directed snooping over the whole world a good thing – an evil necessity? To be sure, intelligence is needed even if it has failed us in Mumbai or Dantewada. To some extent, POTA admits to access to phone records as part of investigation. But questions of admissibility of evidence do arise where evidence is illegally obtained. India follows the rule that even if the evidence comes from an illegal poisoned tree, it may be admitted. How far can all this go? It can be ruthlessly argued that our phone privacy is less important than national security. But that is not how it works. The recent revelations show that espionage, surveillance and tapping have little to do with security issues. A state machinery can and has been twisted to work for its own ends – including the personal, private, political, evil and selfish. It is master-minded by those who have a sophisticated machinery of gigantic proportions in their hands. Can such a surveillance machinery, including phone tapping, be left without surveillance over-seeing its processes?
Unfortunately the Supreme Court of India’s phone tapping decisions (1997), left the whole exercise to semi-senior bureaucrats who may not be (and, often, are not) above corrupting political influences or personal vendetta. But, even these “guidelines” have been breached. Who authorized the present taps? No one is spared – not even politicians. No less unfortunately, the Prime Minster does not want a JPC. The reason is obvious. Beneath and behind every surveillance, there is a can of worms – which may, or may not lead to Race Course Road or even Janpath.
True, JPCs’ have been used rarely since Bofors (1987), stock market fraud (1992 and 2001) and pesticides (2003). But we need a JPC. Not a Liberhan style Commmission. A JPC would (a) investigate the efficacy of Supreme Court’s guidelines; (b) punish infractions (for this is as bad as Watergate); and (c) carefully consider a proper system of surveillance – an exercise that has never taken place in India since the nineteenth century. The Opposition should stop playing games with “cut-motions” to embarrass the government and precipitate musical chairs to ward of confidence-motions. It should not just be concerned with dislodging the government, but with good governance itself. Today “good governance” requires a thorough investigation of those who snoop into our lives with possibly malevolent intent to misuse the information. Only a JPC can form an effective probe. Denying a JPC suggests there is something to hide. The world of “Big-Brother” is upon us – the Leviathan of our times. Someone has to watch “Big-Brother” before he gets bigger to cease to be a brother.
RAJEEV DHAVAN
Beyond “telephone tapping” lies the awesome world of surveillance, of which tapping is a part. The excuse for all this is anti-terrorism. The principle put forward: “Trust the government”. The revelations in April 2010 show Sharad Pawar, Digvijay Singh, Nitish Kumar and Prakash Karat’s phones were tapped. This was political espionage. It did not have the remotest nexus with terrorism. The targets of snooping were political competitors and opposition. Like Watergate. But Watergate brought down a President. India’s Manmohan Singh does not even want a Joint Parliamentary Committee (JPC). Way back when I was arguing the phone tapping case, I relied on L.K. Advani’s dossier of 1988 which showed that the targets of tapping were Messrs Vajpayee, Charan Singh, Jagjivan Ram, Chandra Shekhar, GK Reddy, Arun Shourie, Kuldip Nayyar, Tavleen Singh, President Zail Singh and Y.V. Chandrachud, Chief Justice of India. This did not prevent the Supreme Court of India permitting a broad power to tap to Government while recognizing the absence of legitimizing procedure under the archaic overbroad Telegraph Act of 1885. Confusion was created by lawyer Kapil Sibal conceding acceptance of system “short of prior judicial scrutiny”. Judicial permissions precede “search and seizure”. Surveillance and tapping should be no better. In 1997 the Supreme Court was content with “guidelines” on who, what, how and oversight. A Joint Secretary could authorize specific taps, valid for two months and extendable (destruction of materials if not required) and with an Oversight Committee consisting of Government Secretaries drawn from the Ministries of Home, Law and Telecommunications. Enmeshed in secrecy, the “guidelines” were a flop. The Supreme Court lost its chance to counter invasions of privacy while blessing an invasive surveillance.
Terrorism has provided some kind of false utilitarian justification for surveillance. Post 9/11 in 2002, the President of America authorized intercepting communication in what has come to be known as the “Terrorist Surveillance Programme”. This was publicly acknowledged after revelations in the New York Times in 2005. Codename Pinwale of 2005 devised how a data base of electronic communications could be used and misused. The original US law of 1978 was breached and went beyond orders given by the Foreign Intelligence Surveillance Court – not just of phones but also email - in massive exercises of “over-collection”. The Bush regime’s practice was legitimized by a 2008 amendment which meant much of spying would be authorized and undetected. In the Al Haramain’s case (2010), Judge Walker declared that following Congressional Statutes was not optional. Though federal Judge Anna Taylor in 2006 declared unauthorized wire-tapping illegal, the case lost its adversorial charm by appellate reversal on facts that tapping itself was not proved. Ironically when the Bush changes were made in 2008, the then Senator (now President) Obama voted for them! The present law now requires a warrant for eavesdropping on an American citizen or organization in America, but not for the rest of the world; or for all of us!
After considerable fumbling when an internal Lord Diplock Committee looked at taps after the event, UK’s Interception of Communications Act, 1985 was superseded by a Regulation of Investigatory Powers Act 2000 which along with the Police Act 1997 permitted covert surveillance. These changes came because the House of Lords in Khan’s case (1997) showed amazement at the lack of statutory regulation on snooping. The present UK legislation has been called a “snooper’s charter” and may be specifically “directed” or generally intrusive. Covert and especially intrusive surveillance even though authorized by authority (eg. Secretary of State) is too widely permitted for a broad spectrum of serious crime prevention, economic well-being and national security.
We concentrate on the US, England and Europe who have declared unofficial war against terrorism to enable them to conquer countries through war in the name of peace; and, maintain a global surveillance, for the purposes of arrest, torture and rendition. The European Court in Khass (1978) and Koll (1998) frowns on unauthorized surveillance. But the world of "intelligence" has grown into an uncontrollable monster of which India is an inefficient but dangerous part. It is now well-settled that UK's war on Iraq was contrived. Surveillance of Muslims leading to their house arrest in UK was set aside by the House of Lords in June 2009. What kind of place does India want in this 'global network'? We stoop to conquer, to try and get access to Headley; and are spurned, with arrogance, by a brazen US, who does not even pretend to be wily. Our location on this greatest of all global surveillance is that of a junior cadet – trusted when convenient.
But is a US-directed snooping over the whole world a good thing – an evil necessity? To be sure, intelligence is needed even if it has failed us in Mumbai or Dantewada. To some extent, POTA admits to access to phone records as part of investigation. But questions of admissibility of evidence do arise where evidence is illegally obtained. India follows the rule that even if the evidence comes from an illegal poisoned tree, it may be admitted. How far can all this go? It can be ruthlessly argued that our phone privacy is less important than national security. But that is not how it works. The recent revelations show that espionage, surveillance and tapping have little to do with security issues. A state machinery can and has been twisted to work for its own ends – including the personal, private, political, evil and selfish. It is master-minded by those who have a sophisticated machinery of gigantic proportions in their hands. Can such a surveillance machinery, including phone tapping, be left without surveillance over-seeing its processes?
Unfortunately the Supreme Court of India’s phone tapping decisions (1997), left the whole exercise to semi-senior bureaucrats who may not be (and, often, are not) above corrupting political influences or personal vendetta. But, even these “guidelines” have been breached. Who authorized the present taps? No one is spared – not even politicians. No less unfortunately, the Prime Minster does not want a JPC. The reason is obvious. Beneath and behind every surveillance, there is a can of worms – which may, or may not lead to Race Course Road or even Janpath.
True, JPCs’ have been used rarely since Bofors (1987), stock market fraud (1992 and 2001) and pesticides (2003). But we need a JPC. Not a Liberhan style Commmission. A JPC would (a) investigate the efficacy of Supreme Court’s guidelines; (b) punish infractions (for this is as bad as Watergate); and (c) carefully consider a proper system of surveillance – an exercise that has never taken place in India since the nineteenth century. The Opposition should stop playing games with “cut-motions” to embarrass the government and precipitate musical chairs to ward of confidence-motions. It should not just be concerned with dislodging the government, but with good governance itself. Today “good governance” requires a thorough investigation of those who snoop into our lives with possibly malevolent intent to misuse the information. Only a JPC can form an effective probe. Denying a JPC suggests there is something to hide. The world of “Big-Brother” is upon us – the Leviathan of our times. Someone has to watch “Big-Brother” before he gets bigger to cease to be a brother.
Saturday, April 17, 2010
Great Escape: The Strange Case of Lalu Yadav
GREAT ESCAPE: THE STRANGE CASE OF LALU YADAV
RAJEEV DHAVAN
Ram Jethmalani has done it again. His legal acumen and forensic ability collapsed the Hawala case against L.K. Advani into an untidy legal heap to obviate further trial. Hawala transactions did occur. The ‘who-dun-it’ was known. But Jethmalani paralysed the law on a technicality. The flamboyant Lalu has amassed a lot of power and wealth. Stories about this are legendary. Somehow he has managed to save himself. At some point in time he had the protection of Kapil Sibal whom he made a Rajya Sabha MP. Now “Ram” has found an escape route. The difference from the Hawala case is that Lalu has an acquittal. Advani did not go to trial. The controversy centers around whether the state government could appeal the acquittal to the Patna High Court; and then the Supreme Court. On 20 September 2007, the Patna High Court felt that an appeal against Lalu’s acquittal lay. Lalu and the CBI, which was investigating his case, appealed to the Supreme Court which decided that the Patna High Court was wrong. Accordingly, if the Union government did not appeal, Lalu was scot-free on these charges after the trial court’s verdict of acquittal.
Is this a case where the ‘law’ has been ‘hoodwinked’ by politics? Common sense would suggest that a serious corruption case should not just stop at a trial court acquittal. Any politician, other than Lalu, may have wanted exoneration from the higher court. But not Lalu. It would appear the Manmohan Singh-Sonia Gandhi government wanted to give Lalu a reprieve. The politics arose in this way. In 1997, the Patna High Court ordered a CBI inquiry into these charges. The CBI charged Lalu with assets of Rs.46,26,827 in excess of known sources of income under the Prevention of Corruption Act (PCA). As the state police was not the prosecuting authority (since Lalu was in power) and CBI prosecuted, it was for the CBI or Central Government to appeal. But neither appealed. Both claimed that the investigation had been conducted properly. Justice Lodha’s judgment (for Chief Justice Balakrishnan, himself and Chauhan J) of 1 April 2010 states that the CBI informed the Court that “the central government after considering the conclusions and findings of the trial out took a conscious and considered decision that no ground whatsoever was made for filing an appeal from the judgment”. Good grief! Is this politics? Surely! Was the investigation that bad? Was the trial court judgment that good? Who took the decision not to appeal? Home Minister? Law Minister? On whose advice? The Attorney General? 10 Janpath? Suspicion will always lie that Lalu’s support was necessary to keep the UPA coalition alive.
Now, to the law. Justice Lodha is a skillful judge who has the uncanny ability to define and redefine the law at will. The judgment itself has abstruse references to dictionaries and 18th-19th century English cases – ignoring Justice Krishna Iyer’s dictum: “Lexicons and outdated moth eaten judicial expressions are not a safe guide to interpret law for the people”. In a panoramic sweep, Justice Lodha recounted that appeals against acquittal were not allowed in 1861 but were provided in 1872, 1882, 1898, 1955 and 1973. The controversy is whether the State government or the original complainant can appeal an acquittal? No doubt, because of the regime change, this means the State government of Nitesh Kumar – an arch enemy and rival of Lalu. The conclusion that an appeal can only lie at the instance of the Union government seems like intricate and involuted politics as well as bad law.
Normally, appeals are not allowed against petty cases (Section 376) and where the accused pleads guilty (Section 375). This is not a petty case or one where Lalu pleaded guilty. Lalu could have appealed against conviction (Section 374). But Lalu has not been convicted. Normally, the State government can appeal against sentence and acquittal (Section 377-8); and the Union government against sentence and acquittals (Section 377-8) when the CBI investigates the matter. But is the State government helpless where the Central Government refuses to appeal in CBI investigated cases?
For this we have to go to Section 378 of the Code. Normally, the State government can direct “the Public Prosecutor” to appeal “in any case” (section 378 (1) (b)). But, in this case, since the investigative agency was the CBI, it is said that the Central government can “also” direct “the Public Prosecutor” to appeal (Section 378 (2)). The operative word is “also”. As Omar Khayyam puts: “Yes! And if a single alif were the clue, could we but find it to the treasure house and peradventure to the master too!” Everything depends on this alif. “Also” should mean the state government can appeal in any case and the Central Government can also appeal. But, according to Justice Lodha, the legislature clearly maintained a “mutually exclusive division in the matter of appeal” of the Central and State governments respectively. Why? Surely, the State government was at least the notional complainant, and normally invites the CBI to investigate cases. But for this invitational consent, police investigation is normally a state subject. Here the CBI was brought in by the Patna High Court. Such crossing of federal lines by the courts has been approved by the Supreme Court recently. This should make no difference to the interpretation of the Criminal Procedure Code. The State government is a stake holder, not just for itself but also the rule of law.
It is this aspect that seems to be forgotten. The rule of law both protects the accused and ensures justice. To interpret the law in the manner Justice Lodha has done provides an immunity to Lalu not directly provided by the law. All that Lalu had to do was to persuade his political allies in the Central government to look the other way. Political corruption stalks through our polity in embarrassing proportions – no less in Lalu’s case where the acquittal should have been tested at the highest level. To block “access” to that level on a whim of the Central Government and the speculative interpretation of the law by the Supreme Court threatens federalism, justice and the rule of law.
But, one question survives. If the Union government declined to appeal, was this on the advice of the CBI which gave up on its own investigation? Or by Union government off its own bat? What does the file say? Could the Supreme Court or High Court have asked for the file to discern whether plausible reasons existed for not filing an appeal? Now that the investigation and decision has been made, in my view a ‘Right to Information’ application lies to probe the matter which is not forbidden by the RTI Act 2005 as the investigation is over (see Section 8(b) of the RTI Act).
Lalu may have won. But justice and federalism have suffered. Politics has intervened. The judges (including the retiring Chief Justice) have validated this political intervention. The judgment came on 1 April 2000. April Fool’s Day. Unfortunately this is no joke. It is the law of the land.
RAJEEV DHAVAN
Ram Jethmalani has done it again. His legal acumen and forensic ability collapsed the Hawala case against L.K. Advani into an untidy legal heap to obviate further trial. Hawala transactions did occur. The ‘who-dun-it’ was known. But Jethmalani paralysed the law on a technicality. The flamboyant Lalu has amassed a lot of power and wealth. Stories about this are legendary. Somehow he has managed to save himself. At some point in time he had the protection of Kapil Sibal whom he made a Rajya Sabha MP. Now “Ram” has found an escape route. The difference from the Hawala case is that Lalu has an acquittal. Advani did not go to trial. The controversy centers around whether the state government could appeal the acquittal to the Patna High Court; and then the Supreme Court. On 20 September 2007, the Patna High Court felt that an appeal against Lalu’s acquittal lay. Lalu and the CBI, which was investigating his case, appealed to the Supreme Court which decided that the Patna High Court was wrong. Accordingly, if the Union government did not appeal, Lalu was scot-free on these charges after the trial court’s verdict of acquittal.
Is this a case where the ‘law’ has been ‘hoodwinked’ by politics? Common sense would suggest that a serious corruption case should not just stop at a trial court acquittal. Any politician, other than Lalu, may have wanted exoneration from the higher court. But not Lalu. It would appear the Manmohan Singh-Sonia Gandhi government wanted to give Lalu a reprieve. The politics arose in this way. In 1997, the Patna High Court ordered a CBI inquiry into these charges. The CBI charged Lalu with assets of Rs.46,26,827 in excess of known sources of income under the Prevention of Corruption Act (PCA). As the state police was not the prosecuting authority (since Lalu was in power) and CBI prosecuted, it was for the CBI or Central Government to appeal. But neither appealed. Both claimed that the investigation had been conducted properly. Justice Lodha’s judgment (for Chief Justice Balakrishnan, himself and Chauhan J) of 1 April 2010 states that the CBI informed the Court that “the central government after considering the conclusions and findings of the trial out took a conscious and considered decision that no ground whatsoever was made for filing an appeal from the judgment”. Good grief! Is this politics? Surely! Was the investigation that bad? Was the trial court judgment that good? Who took the decision not to appeal? Home Minister? Law Minister? On whose advice? The Attorney General? 10 Janpath? Suspicion will always lie that Lalu’s support was necessary to keep the UPA coalition alive.
Now, to the law. Justice Lodha is a skillful judge who has the uncanny ability to define and redefine the law at will. The judgment itself has abstruse references to dictionaries and 18th-19th century English cases – ignoring Justice Krishna Iyer’s dictum: “Lexicons and outdated moth eaten judicial expressions are not a safe guide to interpret law for the people”. In a panoramic sweep, Justice Lodha recounted that appeals against acquittal were not allowed in 1861 but were provided in 1872, 1882, 1898, 1955 and 1973. The controversy is whether the State government or the original complainant can appeal an acquittal? No doubt, because of the regime change, this means the State government of Nitesh Kumar – an arch enemy and rival of Lalu. The conclusion that an appeal can only lie at the instance of the Union government seems like intricate and involuted politics as well as bad law.
Normally, appeals are not allowed against petty cases (Section 376) and where the accused pleads guilty (Section 375). This is not a petty case or one where Lalu pleaded guilty. Lalu could have appealed against conviction (Section 374). But Lalu has not been convicted. Normally, the State government can appeal against sentence and acquittal (Section 377-8); and the Union government against sentence and acquittals (Section 377-8) when the CBI investigates the matter. But is the State government helpless where the Central Government refuses to appeal in CBI investigated cases?
For this we have to go to Section 378 of the Code. Normally, the State government can direct “the Public Prosecutor” to appeal “in any case” (section 378 (1) (b)). But, in this case, since the investigative agency was the CBI, it is said that the Central government can “also” direct “the Public Prosecutor” to appeal (Section 378 (2)). The operative word is “also”. As Omar Khayyam puts: “Yes! And if a single alif were the clue, could we but find it to the treasure house and peradventure to the master too!” Everything depends on this alif. “Also” should mean the state government can appeal in any case and the Central Government can also appeal. But, according to Justice Lodha, the legislature clearly maintained a “mutually exclusive division in the matter of appeal” of the Central and State governments respectively. Why? Surely, the State government was at least the notional complainant, and normally invites the CBI to investigate cases. But for this invitational consent, police investigation is normally a state subject. Here the CBI was brought in by the Patna High Court. Such crossing of federal lines by the courts has been approved by the Supreme Court recently. This should make no difference to the interpretation of the Criminal Procedure Code. The State government is a stake holder, not just for itself but also the rule of law.
It is this aspect that seems to be forgotten. The rule of law both protects the accused and ensures justice. To interpret the law in the manner Justice Lodha has done provides an immunity to Lalu not directly provided by the law. All that Lalu had to do was to persuade his political allies in the Central government to look the other way. Political corruption stalks through our polity in embarrassing proportions – no less in Lalu’s case where the acquittal should have been tested at the highest level. To block “access” to that level on a whim of the Central Government and the speculative interpretation of the law by the Supreme Court threatens federalism, justice and the rule of law.
But, one question survives. If the Union government declined to appeal, was this on the advice of the CBI which gave up on its own investigation? Or by Union government off its own bat? What does the file say? Could the Supreme Court or High Court have asked for the file to discern whether plausible reasons existed for not filing an appeal? Now that the investigation and decision has been made, in my view a ‘Right to Information’ application lies to probe the matter which is not forbidden by the RTI Act 2005 as the investigation is over (see Section 8(b) of the RTI Act).
Lalu may have won. But justice and federalism have suffered. Politics has intervened. The judges (including the retiring Chief Justice) have validated this political intervention. The judgment came on 1 April 2000. April Fool’s Day. Unfortunately this is no joke. It is the law of the land.
Saturday, April 3, 2010
The Khap Murders
The Khap Murders
Rajeev Dhavan
In the late 19th century, District Judge J.H. Nelsen warned Madras Chief Justice Innes of Madras that the dharmasastra law was vastly different from the ‘real’ law of the mofussil. In 1948, Ambedkar warned the Constituent Assembly of India against the supposed innocence of villages and panchayats. Politically, we have come to revere Panchayats of all kinds. Socially, panchayat justice can be perverse, casteist, cruel, vindictive and murderous. We are still grappling with the real law of mofussil.
The collective murder of Babli and Manoj by the panchayat village near Kathal affirms the brutality of the panchayat. Babli and Manoj (aged 19 and 21) eloped. When they caught a bus, a Scorpio laden with her brother and cousins (Suresh, Gurdev and Satish) and uncles (Rajender and Baru Ram) and a driver chased and stopped the bus and forced them out. They were murdered – Babli by poison administered by her brothers and Manoj by strangling. The bodies were found in a canal and un-ceremoniously cremated. Their offence: the marriage was within the gotra. The murder was ordered by Ganga Raj the Panchayat’s leader who also ordered a Rs.25,000 fine on those who kept in touch with Manoj’s family. Manoj’s sister and his courageous mother Chandrapati were both harassed. The District Session Judge, Vani Gopal Sharma, imposed the death penalty on the killers, life imprisonment for Ganga Raj and 7 years for the driver. Until caught, the accused were heroes in their caste’s cause. These occurrences are not new. I have over 10 volumes of reported items in my papers. The All India Democratic Women Conference’s (AIDWA) meeting on 11 January 2009, reported ‘honour’ killings and crimes in Punjab and Haryana (about 10% of India’s total), UP, Rajasthan, Bihar and elsewhere. Home Minister Chidambaram may well have responded to Brinda Karat’s question in the Rajya Sabha on 28 July 2009, that his government does not recognize the Khap panchayats or their authority to punish. At least, this is a better answer than BJP’s S.S. Ahluwalia officially telling the UN that allegations of honour killings were derived from “(s)elective reproduction of unsubstantiated reports … based on hearsay”. Truth is so easily mortgaged to politics.
Like many countries, India has two legal systems. The ‘real’ legal system of ‘social law’ and the ‘state legal’ system which overlaps ‘social law’. ‘State law’ works with authority in a number of commercial, transactional and other areas. But in many social areas, it is the ‘social law’ that prevails. ‘State law’ has kept its reformist distance as a dream in so many matters including child marriage, widows – even sati. It is the belief of panchayat and other custodians of “social law” that their law is supreme and supremely includes threats, mayhem, ostracism, beatings, humiliation, the naked parading of mothers and girls, drinking urine and eating excreta, kidnapping, rape (what kind of honour is there in rape?) and cold blooded murder. This is a mild review of an unending gruesome catalogue.
“Honour” killing and ‘suicides’ (which should be called dishonourable murders) are a compendium term associated with Pakistan, Jordan, Palestine and the like. It is insufficient in its description to many Indian situations which are about the maintenance of power, authority and status to make the vulnerable suffer the authority of the powerful. The Punjab High Court said on 16 March 2010 that it will not tolerate parallel judicial systems? But it exists, not just in Punjab and Haryana but throughout India. It crosses the religious divide. Throwing stones at Muslim countries does not resolve India’s problems.
How does the ‘State system’ accommodate the Khap system or its equivalent? This is a problem that exists throughout the world. The first approach is that of indifference. The police refuse to impose ‘state law’ on the law of the panchayat. If the ‘state’ law moves, it could result in death sentences of the kind we have witnessed in the Babli-Manoj case. This is rare. Second, various countries, such as Pakistan passed laws against ‘honour’ killings. But consider the Pakistan Supreme Court’s decision in Kamal v. State (1977) where it lessened the capital sentence because such killings were supposedly caused by grave provocation (the provocation defence). The bench included Justice Dorab Patel. In 1989, the Shariat Appellate Bench called for an ‘Islamized’ change in the law, leading to the Qisas and Diyat Ordinances after which the provocation defence was not available per se. But offences could be compounded, and various other ‘Islamized’ options were opened up. From 1995, the provocation defence resurfaced in alleged Honour killings. The tide of honour killings was unabated. In 2004, further changes were made obviating defences where the crime was in “the name or the pretext of honour”. Muhammad Ameer’s case (2006) suggests that Pakistan courts may continue the “patronage of honour killings”.
Honour killings exist in some abundance in Eastern Turkey. In Jordan, data from 1997 to 2009 shows that women (especially teenagers) are subject to honour deaths and buried in unmarked graves. Such honour killings have been reported Lebanon, Egypt and even amongst migrants in England. In 2000, the UN’s General Assembly passed GA55/111 calling governments to intervene. 26 States including Pakistan abstained. In July 2002 GA55/66 presented a report to eliminate honour killings. Asma Jahangir, rapporteur on extrajudicial summary or arbitrary executions since 1998, has filed separate reports on how honour killings attract impunity throughout the world. Concurrently, Radhika Coomaraswamy, UN Rapporteur on violence against women also reported on honour killings from 1996 onwards. Such killings also fall under the remit of the UN Committees on Human Rights (HRC) and women (CEDAW Committee). The former has made it clear in General Caveat 78 on article 3 of the ICCPR (Convention on Civil and Political Rights) that honour killing seriously undermine human rights.
One important defence of honour killings is the so called “culture” defence. Culture has always been an excuse to limit womens’ lives and prospects. It acquires even more sinister proportions when it is argued that honour killings find their defence, justification and roots in culture. It is from such “culture” defences that the South-East Asian theory of human rights has arisen whereby the culture of human rights has to yield to the so called demands of a so-called traditional culture. If the ‘culture’ defence is totally accepted as in the case of Khap Panchayats, the human rights enterprise would die. Culture and the culture of human rights have to be reconciled. There is a plimsoll line below which no culture can be permitted to go.
For our present purpose, I do not want to enter into the culture-human rights debate. I will assume that there is, and should be, universal acceptance that intentional wanton killings of the vulnerable with intent are grievous murders. There is much richness to be drawn from multiculturalism. This is not one of them. I do not subscribe to the death penalty. But such crimes cannot go unchecked, unchallenged and unpunished.
Indians often malign honour killings in Muslim countries. Caste driven panchayats are no better. To say that all this about honour is a lie. It is about revenge and murder. The sooner we accept that, the better.
Rajeev Dhavan
In the late 19th century, District Judge J.H. Nelsen warned Madras Chief Justice Innes of Madras that the dharmasastra law was vastly different from the ‘real’ law of the mofussil. In 1948, Ambedkar warned the Constituent Assembly of India against the supposed innocence of villages and panchayats. Politically, we have come to revere Panchayats of all kinds. Socially, panchayat justice can be perverse, casteist, cruel, vindictive and murderous. We are still grappling with the real law of mofussil.
The collective murder of Babli and Manoj by the panchayat village near Kathal affirms the brutality of the panchayat. Babli and Manoj (aged 19 and 21) eloped. When they caught a bus, a Scorpio laden with her brother and cousins (Suresh, Gurdev and Satish) and uncles (Rajender and Baru Ram) and a driver chased and stopped the bus and forced them out. They were murdered – Babli by poison administered by her brothers and Manoj by strangling. The bodies were found in a canal and un-ceremoniously cremated. Their offence: the marriage was within the gotra. The murder was ordered by Ganga Raj the Panchayat’s leader who also ordered a Rs.25,000 fine on those who kept in touch with Manoj’s family. Manoj’s sister and his courageous mother Chandrapati were both harassed. The District Session Judge, Vani Gopal Sharma, imposed the death penalty on the killers, life imprisonment for Ganga Raj and 7 years for the driver. Until caught, the accused were heroes in their caste’s cause. These occurrences are not new. I have over 10 volumes of reported items in my papers. The All India Democratic Women Conference’s (AIDWA) meeting on 11 January 2009, reported ‘honour’ killings and crimes in Punjab and Haryana (about 10% of India’s total), UP, Rajasthan, Bihar and elsewhere. Home Minister Chidambaram may well have responded to Brinda Karat’s question in the Rajya Sabha on 28 July 2009, that his government does not recognize the Khap panchayats or their authority to punish. At least, this is a better answer than BJP’s S.S. Ahluwalia officially telling the UN that allegations of honour killings were derived from “(s)elective reproduction of unsubstantiated reports … based on hearsay”. Truth is so easily mortgaged to politics.
Like many countries, India has two legal systems. The ‘real’ legal system of ‘social law’ and the ‘state legal’ system which overlaps ‘social law’. ‘State law’ works with authority in a number of commercial, transactional and other areas. But in many social areas, it is the ‘social law’ that prevails. ‘State law’ has kept its reformist distance as a dream in so many matters including child marriage, widows – even sati. It is the belief of panchayat and other custodians of “social law” that their law is supreme and supremely includes threats, mayhem, ostracism, beatings, humiliation, the naked parading of mothers and girls, drinking urine and eating excreta, kidnapping, rape (what kind of honour is there in rape?) and cold blooded murder. This is a mild review of an unending gruesome catalogue.
“Honour” killing and ‘suicides’ (which should be called dishonourable murders) are a compendium term associated with Pakistan, Jordan, Palestine and the like. It is insufficient in its description to many Indian situations which are about the maintenance of power, authority and status to make the vulnerable suffer the authority of the powerful. The Punjab High Court said on 16 March 2010 that it will not tolerate parallel judicial systems? But it exists, not just in Punjab and Haryana but throughout India. It crosses the religious divide. Throwing stones at Muslim countries does not resolve India’s problems.
How does the ‘State system’ accommodate the Khap system or its equivalent? This is a problem that exists throughout the world. The first approach is that of indifference. The police refuse to impose ‘state law’ on the law of the panchayat. If the ‘state’ law moves, it could result in death sentences of the kind we have witnessed in the Babli-Manoj case. This is rare. Second, various countries, such as Pakistan passed laws against ‘honour’ killings. But consider the Pakistan Supreme Court’s decision in Kamal v. State (1977) where it lessened the capital sentence because such killings were supposedly caused by grave provocation (the provocation defence). The bench included Justice Dorab Patel. In 1989, the Shariat Appellate Bench called for an ‘Islamized’ change in the law, leading to the Qisas and Diyat Ordinances after which the provocation defence was not available per se. But offences could be compounded, and various other ‘Islamized’ options were opened up. From 1995, the provocation defence resurfaced in alleged Honour killings. The tide of honour killings was unabated. In 2004, further changes were made obviating defences where the crime was in “the name or the pretext of honour”. Muhammad Ameer’s case (2006) suggests that Pakistan courts may continue the “patronage of honour killings”.
Honour killings exist in some abundance in Eastern Turkey. In Jordan, data from 1997 to 2009 shows that women (especially teenagers) are subject to honour deaths and buried in unmarked graves. Such honour killings have been reported Lebanon, Egypt and even amongst migrants in England. In 2000, the UN’s General Assembly passed GA55/111 calling governments to intervene. 26 States including Pakistan abstained. In July 2002 GA55/66 presented a report to eliminate honour killings. Asma Jahangir, rapporteur on extrajudicial summary or arbitrary executions since 1998, has filed separate reports on how honour killings attract impunity throughout the world. Concurrently, Radhika Coomaraswamy, UN Rapporteur on violence against women also reported on honour killings from 1996 onwards. Such killings also fall under the remit of the UN Committees on Human Rights (HRC) and women (CEDAW Committee). The former has made it clear in General Caveat 78 on article 3 of the ICCPR (Convention on Civil and Political Rights) that honour killing seriously undermine human rights.
One important defence of honour killings is the so called “culture” defence. Culture has always been an excuse to limit womens’ lives and prospects. It acquires even more sinister proportions when it is argued that honour killings find their defence, justification and roots in culture. It is from such “culture” defences that the South-East Asian theory of human rights has arisen whereby the culture of human rights has to yield to the so called demands of a so-called traditional culture. If the ‘culture’ defence is totally accepted as in the case of Khap Panchayats, the human rights enterprise would die. Culture and the culture of human rights have to be reconciled. There is a plimsoll line below which no culture can be permitted to go.
For our present purpose, I do not want to enter into the culture-human rights debate. I will assume that there is, and should be, universal acceptance that intentional wanton killings of the vulnerable with intent are grievous murders. There is much richness to be drawn from multiculturalism. This is not one of them. I do not subscribe to the death penalty. But such crimes cannot go unchecked, unchallenged and unpunished.
Indians often malign honour killings in Muslim countries. Caste driven panchayats are no better. To say that all this about honour is a lie. It is about revenge and murder. The sooner we accept that, the better.
Saturday, March 20, 2010
Suffering Nuclear Accidents
Suffering Nuclear Accidents
Rajeev Dhavan
What a way to go! For a country that suffered the Oleum Gas escape (1986), the Bhopal gas tragedy, was flooded with ‘Chernobyl’ butter and suffers escapes and mishaps from factories everyday, the Civil Liability for Nuclear Damage Bill 2010 (Nuclear Bill) disappoints. In the Bhopal Constitutional case (1989), the Union government claimed to be parens patriae to its people. The Bill shows the Union government as an irresponsible parent protecting the liability of multinational investors and using the taxpayers’ money to make the difference. Who is the Bill for? It should be to provide a comprehensive relief for victims and to effect immediate relief, rehabilitation and compensation. Whom will it help? Those who should be visibly and invisibly responsible and liable for nuclear mishaps. This is certainly the wrong way to pick up the pieces of possible nuclear disaster. In 1991, India’s Public Liability Insurance Act 1991 was supposed to reflect post Bhopal concerns. Despite amendments providing for minimal insurance and interim relief, it proved to be a damp squib. Insurance does not reflect claims. The Act is barely used – a disastrous recipe to deal with the aftermath of disaster.
The Nuclear Bill has a lot of “ifs” and “buts”. In the first place, the Board under the Atomic Act 1962 is required to notify a ‘nuclear incident’ in 15 days (!). If the Board feels the risk or injury is not grave, not notify it. Then what happens. A bureaucratic signal is necessary to accept that a disaster has occurred. But what happens, if a nuclear incident is not declared by the Board, which classifies it as not grave or serious. Is that the end of story? Second, the operator (on whom the liability falls) is someone who is designated by the Central government and, presumably following factories legislation, would be an individual. Enter designated Manager for the facility, exit Union Carbide or Warren Anderson! Third the liability clause is interesting. The upper limit of Rs.500 crores per incident is illusory. The Union government may increase it or decrease it to Rs.100 crores. Fourth, under the Nuclear Bill, damage is essentially awarded for damage outside the installation. This is important. In the Oleum Gas Case (1986), the Supreme Court made it clear that any ‘escape’ from an inherently hazardous activity would give rise to an absolute liability as soon as escape is shown. This was affirmed in the Bichhri (Indian Enviro) case (1995). This is not reflected in the Bill. Nor really taken into account. In fact the Bill actually reverses the principle by saying that the operator can hide behind the fact that his employees did something willfully wrong. Such an approach used to exist before 1911! Why should the Central government be liable for any liability over the limit? Or for damage due to natural disaster, insurrection, terrorism and the like? Why should the ‘operator’ not take out insurance for all damage as well. Fifth, the present insurance requirement is only to a certain sum for external damage under ‘normal circumstances’. Let it be more comprehensive. This will make the premium higher. But inviting the worst of possible hazards is an expensive business which cannot be dealt with by a blind eye to justice. Sixth, according to Minister Jairam Ramesh, Indian nuclear power generation is to reach 6000 MW by 2011. Russia wants to build 12 nuclear reactors in India. There will be 60,000 MW by 2032 as against 4,120 MW now (an increase of 1456%). Seventh, the normal adjudicatory system is through a Claims Commissioner. This is an ambitious plan locked up in procedure. The remedy is reposed in a Claims Commissioner who could be a person with 10 years practice or Joint Secretary with 5 years special knowledge of nuclear liability. I assume such a person exists; and is right for the job! Eighth, the limitation period is 3 years from discovery of knowledge of harm. Or a maximum of ten years – presumably, even if cases of latent damage are discovered years later. Ninth, there is little scope for relief to alleviate and rectify the damage immediately. Relief and rehabilitation are given the go by. The relief is just money. In the words of the song: “Money, money, money. It’s a poor man’s world”. Tenth, a Claims Commission headed by a person qualified to be High Court judge or is an Additional Secretary (both over 55 years) to hear difficult cases and those where damage is greater than 500 crores even though that is a mandatory cap. When the Central government feels the Commission has too little work it will be dissolved. Recourse to civil courts is ousted. This ensemble of authorities which is to determine issues of such grave portents will not necessarily have the ability or experience to do so. There are no provisions for legal aid. None to help those affected. We have forgotten Bhopal! Eleventh, there is the usual hateful provision that the Act shall come into effect on such dates he Central government decides – with possibly different dates for different parts of the Act. Acts should come into effect at once. This political largesse to government is arbitrary.
An argument has been made that India’s cap on liability is Rs.500 crores as opposed to China (205 crores) and Canada (335 crores); and is similar to France (575 crores). But the Nuclear Bill leaves it to government to reduce the amount to Rs.100 crores in each case. Why? To say that America’s private operators have pooled together a fund of $10 billion is a fact. This is just the corpus. Why should the Indians tax payer bear the burden of the excess?
This bill purports to be comprehensive, but is comprehensively problematic. It is said India breached history when it signed the ill-fated 123 agreement and ventured out from ‘nuclear isolation’. But the price of that is being exacted in this Bill. The operator in India is liable, the foreign investor goes scot-free. India is not party to the related Vienna Convention 1963, the Paris Convention of 1960, the 1997 Vienna Protocol or the Supplementary Convention for Compensation of 1997. To argue the China example ignores that there is no upper limit in the Vienna Convention and the Paris Convention’s limit is €700 million (Euros).
The problem is that Parliament is not permitted to discuss matters in two ways. Firstly, the Opposition brings Parliament to a halt. This was done in the Women’s Reservation Bill. But this usual tactic of the BJP in opposition is not the case with the Nuclear Bill. Second, the Government is often too much in a hurry to rush Bills through Parliament (sometimes under devious or foreign pressure) without discussion in Parliament or with political parties or people. Foreign governments want to protect their investors. This is precisely the Bhopal situation. Union Carbide was sought to be protected. Warren Anderson was de facto absolved. Multinational investors in hazardous activity (even less so in the field of nuclear liability) do not deserve protection from consequent liability.
Today, the Bill is precariously poised because the opposition is keen to bring the government down. As with the Women’s Bill, the government wants to be cautious. Tactic is an alternative to discourse. Let us wait and see.
Rajeev Dhavan
What a way to go! For a country that suffered the Oleum Gas escape (1986), the Bhopal gas tragedy, was flooded with ‘Chernobyl’ butter and suffers escapes and mishaps from factories everyday, the Civil Liability for Nuclear Damage Bill 2010 (Nuclear Bill) disappoints. In the Bhopal Constitutional case (1989), the Union government claimed to be parens patriae to its people. The Bill shows the Union government as an irresponsible parent protecting the liability of multinational investors and using the taxpayers’ money to make the difference. Who is the Bill for? It should be to provide a comprehensive relief for victims and to effect immediate relief, rehabilitation and compensation. Whom will it help? Those who should be visibly and invisibly responsible and liable for nuclear mishaps. This is certainly the wrong way to pick up the pieces of possible nuclear disaster. In 1991, India’s Public Liability Insurance Act 1991 was supposed to reflect post Bhopal concerns. Despite amendments providing for minimal insurance and interim relief, it proved to be a damp squib. Insurance does not reflect claims. The Act is barely used – a disastrous recipe to deal with the aftermath of disaster.
The Nuclear Bill has a lot of “ifs” and “buts”. In the first place, the Board under the Atomic Act 1962 is required to notify a ‘nuclear incident’ in 15 days (!). If the Board feels the risk or injury is not grave, not notify it. Then what happens. A bureaucratic signal is necessary to accept that a disaster has occurred. But what happens, if a nuclear incident is not declared by the Board, which classifies it as not grave or serious. Is that the end of story? Second, the operator (on whom the liability falls) is someone who is designated by the Central government and, presumably following factories legislation, would be an individual. Enter designated Manager for the facility, exit Union Carbide or Warren Anderson! Third the liability clause is interesting. The upper limit of Rs.500 crores per incident is illusory. The Union government may increase it or decrease it to Rs.100 crores. Fourth, under the Nuclear Bill, damage is essentially awarded for damage outside the installation. This is important. In the Oleum Gas Case (1986), the Supreme Court made it clear that any ‘escape’ from an inherently hazardous activity would give rise to an absolute liability as soon as escape is shown. This was affirmed in the Bichhri (Indian Enviro) case (1995). This is not reflected in the Bill. Nor really taken into account. In fact the Bill actually reverses the principle by saying that the operator can hide behind the fact that his employees did something willfully wrong. Such an approach used to exist before 1911! Why should the Central government be liable for any liability over the limit? Or for damage due to natural disaster, insurrection, terrorism and the like? Why should the ‘operator’ not take out insurance for all damage as well. Fifth, the present insurance requirement is only to a certain sum for external damage under ‘normal circumstances’. Let it be more comprehensive. This will make the premium higher. But inviting the worst of possible hazards is an expensive business which cannot be dealt with by a blind eye to justice. Sixth, according to Minister Jairam Ramesh, Indian nuclear power generation is to reach 6000 MW by 2011. Russia wants to build 12 nuclear reactors in India. There will be 60,000 MW by 2032 as against 4,120 MW now (an increase of 1456%). Seventh, the normal adjudicatory system is through a Claims Commissioner. This is an ambitious plan locked up in procedure. The remedy is reposed in a Claims Commissioner who could be a person with 10 years practice or Joint Secretary with 5 years special knowledge of nuclear liability. I assume such a person exists; and is right for the job! Eighth, the limitation period is 3 years from discovery of knowledge of harm. Or a maximum of ten years – presumably, even if cases of latent damage are discovered years later. Ninth, there is little scope for relief to alleviate and rectify the damage immediately. Relief and rehabilitation are given the go by. The relief is just money. In the words of the song: “Money, money, money. It’s a poor man’s world”. Tenth, a Claims Commission headed by a person qualified to be High Court judge or is an Additional Secretary (both over 55 years) to hear difficult cases and those where damage is greater than 500 crores even though that is a mandatory cap. When the Central government feels the Commission has too little work it will be dissolved. Recourse to civil courts is ousted. This ensemble of authorities which is to determine issues of such grave portents will not necessarily have the ability or experience to do so. There are no provisions for legal aid. None to help those affected. We have forgotten Bhopal! Eleventh, there is the usual hateful provision that the Act shall come into effect on such dates he Central government decides – with possibly different dates for different parts of the Act. Acts should come into effect at once. This political largesse to government is arbitrary.
An argument has been made that India’s cap on liability is Rs.500 crores as opposed to China (205 crores) and Canada (335 crores); and is similar to France (575 crores). But the Nuclear Bill leaves it to government to reduce the amount to Rs.100 crores in each case. Why? To say that America’s private operators have pooled together a fund of $10 billion is a fact. This is just the corpus. Why should the Indians tax payer bear the burden of the excess?
This bill purports to be comprehensive, but is comprehensively problematic. It is said India breached history when it signed the ill-fated 123 agreement and ventured out from ‘nuclear isolation’. But the price of that is being exacted in this Bill. The operator in India is liable, the foreign investor goes scot-free. India is not party to the related Vienna Convention 1963, the Paris Convention of 1960, the 1997 Vienna Protocol or the Supplementary Convention for Compensation of 1997. To argue the China example ignores that there is no upper limit in the Vienna Convention and the Paris Convention’s limit is €700 million (Euros).
The problem is that Parliament is not permitted to discuss matters in two ways. Firstly, the Opposition brings Parliament to a halt. This was done in the Women’s Reservation Bill. But this usual tactic of the BJP in opposition is not the case with the Nuclear Bill. Second, the Government is often too much in a hurry to rush Bills through Parliament (sometimes under devious or foreign pressure) without discussion in Parliament or with political parties or people. Foreign governments want to protect their investors. This is precisely the Bhopal situation. Union Carbide was sought to be protected. Warren Anderson was de facto absolved. Multinational investors in hazardous activity (even less so in the field of nuclear liability) do not deserve protection from consequent liability.
Today, the Bill is precariously poised because the opposition is keen to bring the government down. As with the Women’s Bill, the government wants to be cautious. Tactic is an alternative to discourse. Let us wait and see.
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