IMPEACHING A JUDGE
RAJEEV DHAVAN
Impeachment proceedings against Justice Dinakaran are on. The controversy which started over the suitability of his appointment as a Supreme Court judge has expanded into considering whether he should be allowed to remain a judge – leave alone the Chief Justice of Karnataka. Accordingly, the Vice-President M.H. Ansari (as Chairman Rajya Sabha) has appointed Justice Sirpurkar (Supreme Court), Justice Dave (High Court), and P.P. Rao (distinguished jurist) as members of the Committee under the Judges Enquiry Act 1968 – as a prelude to impeachment.
But no sooner was his penultimate proceeding started, those very groups responsible for the campaign against Justice Dinakaran now want a recall of two members (Sirpurkar and P.P. Rao) and inquiry to be reconsituted. This request flows from Forum for Judicial Accountability (Chennai or Vaigai group) and Campaign for Judicial Accountability (Delhi or Bhushan group). Both have been at the forefront of this campaign supported by others. The two groups are convinced he is guilty. Others who support, like myself, feel that there is prima facie case for an inquiry which alone can determine his guilt.
Why should Justice Sirpurkar and PP Rao be asked by the Vice-President to recuse themselves? It is also suggested that since the Chief Justice of India (CJI) was consulted with these appointments, these appointments are suspect because the CJI had defended the collegium’s affirmation of the decision to elevate Justice Dinakaran to the Supreme Court. The Chennai group feels that it has a special right to challenge these appointments because they were the first to explode the Dinakaran issue to the public. The Delhi group is a self-styled vociferous custodian of judicial morals. Democracy is grateful to both of them.
At the very outset, let us be clear that the Inquiry Committee is not a jury. Nor are we in the process of jury selection where you keep opposing appointments until you get the jury of your choice. If the Vagai-Bhushan groups want to appoint judges of their choice or satisfaction, the rule of law and fairness is ill served. Nor should it appear that this is so.
Let us start with P.P. Rao. Did either of the groups speak to P.P. Rao? No, they did not. Well, I did. P.P. Rao drafted the memo of 28th November 2009 asking Dinakaran to face the inquiry. Reliance was placed on a newspaper item that it was “learnt” that P.P. Rao had been consulted by Dinakaran. The next step was to jump to conclusion that Rao was disqualified. First, P.P. Rao has not given any “opinion” to Dinakaran. Dinakaran is not his client for a fee. He is not a friend. There is no pecuniary “bias”. Dinakaran did call on Rao, who told him to face an inquiry and step down from work during that period. Rao’s stance has always been clear. The Chennai group also asserts Rao and Dinakaran along with others are on the General Council of the National Law School. According to them, the test is that all those who “has had any association with the person whose acts are to be gone into” are disqualified. This would exclude all judges of the Supreme Court and High Court Chief Justices, since they all meet at Chief Justices Conference, and other meetings. This concept of “association” is then restricted by the Chennai-group to “close association” with Dinakaran. This test, too, fails. Rao is not closely associated with Dinakaran. Rao is one of the most distinguished counsels and jurists in India – known for courage, integrity, calm and brilliance. His impeccable record shows he is above suspicion. The only way to malign him is to force unwarranted suspicions on him. Rao is a gift to the legal and public community. Let things remain that way.
An embarrassed Rao wrote to the Vice-President to seek permission to recuse in the light of the controversy. The Vice-President has declined. Mudslinging without foundation is neither fair or in the public interest.
Justice Sirpurkar is a judge of the Supreme Court against whom there is no allegation of judicial impropriety. His recusal is sought for two reasons. First, both were judges of the Chennai High Court between 1997 and 2003 and sat on benches and committees together. This could hardly constitute a disqualification. If correct, no Supreme Court judge could ever sit on the inquiry committee against a Supreme Court judge because they invariably sit on cases together. The second reason advanced by the Bhushan-group is that it “has come to know… (that) he has told several responsible lawyers after the controversy “that he knows Dinakaran well and that he is a honourable and wealthy man” and has therefore “prejudged the issue”. Corridor gossip lacks credibility. Even so, Dinakaran is prima facie innocent until proven guilty. His inquiry should be fair. Justice Sirpurkar will, and must have, assessed the situation before accepting this assignment. Attributing bias on unwarranted suspicions is unacceptable.
The sad part of such accusative campaigns is that it puts public minds in a fix. If Dinakaran is acquitted, there will be a “I-told-you-so”. If found guilty, the judges and Rao will be applauded. The effect of such a campaign is a message to Sirpurkar and Rao that they are forewarned that they must convict to prove their independence and impartiality. Such pressure on an independent inquiry is simply wrong.
The next issue is whether the Chief Justice of India (CJI) is to be consulted since it is alleged that the Judges Inquiry Act 1968 does not require consultation and the CJI had defended the decision to elevate Dinakaran to the Supreme Court. That the CJI defended his own and the decision to the collegium is hardly suprising. Placed in doubt he again referred the matter to the collegium, which reversed the earlier decision. The CJI asked the government to inquire into the allegations against Dinakaran. As CJI, and head of the judiciary, he had to be consulted on which judge could be spared from court work. On the material placed, there is no reason why the CJI should not discharge his constitutional functions.
This leaves the issue of the Survey of India Report to determine the extent of the Dinakaran lands and alleged encroachment. The Chennai group says that the Survey of India’s deliberations should stop, so that the parallel proceedings should not take place in Parliament and the Survey of India. I think this demand is correct, but should not possess a shrillness of articulation. On 11th January 2010, the CJI told a newspaper that he asked the government to conduct an inquiry and does not know what the Survey’s report says. What, then, is the solution? Clearly, the Vice-President of the Rajya Sabha (to whom the Chennai-group wrote the letter) has no jurisdiction. Nor, indeed, the Chief Justice of India, who did not order it. Before the matter is litigated, the Government of India has the power to stop the Survey of India. It will also be within the remit of the inquiry and Parliament to seek the report or further evidence, if so advised.
Vigilance is important to democracy, excessive suspicion is not. Public scrutiny is vital, but it has to be grounded with well founded rigour.
Saturday, January 23, 2010
Saturday, January 9, 2010
Police as Criminals
Police as criminals
Rajeev Dhavan
Police who turn criminal are not ordinary criminals. As soon as they move to the ‘dark side’ they build social and political impunities for themselves. Fellow policemen support them. Politicians of various complexions protect them. Rank and file policeman act as their thugs. Other thugs are at their beck and call. Real cases against them are ignored. Fake cases are registered by them to ensnare whom they want. Beyond the bent policeman lies the police ‘don’ who kills with impunity, appropriates at will and inflicts vengeance with ferocity.
The real problem with the Rathore case is that India does not have effective processes to deal with powerful policeman. Their tribe is increasing. Anti-terrorist campaigns are making terrorists in their own cause. The list is increasing: ADGP Sumedh Saini made members of Kumar family, disappear. The other brother, Ashish (a client and friend) has knocked on the highest and lowest courts for justice without success. After 9 years IG R.K. Sharma was sentenced for killing journalist Shivani Bhatnagar (another friend). In Rajasthan, DIG Tandon is accused of raping a tribal. Pradeep Sharma responsible for 107 encounter deaths is now held for fake encounter. Without activist-media campaigns (as in the Jessica Lal, Nitish Katara and Priyadarshini Mattoo cases) these are bound to fail. Such campaigns are not trial by media and should not be treated as contempt of court. A popular cry for justice is not populist justice.
Let us turn to the Rathore case. Ruchika loved tennis. Rathore was a big shot in the Lawn Tennis Association. Around August 1990 he ensnared, took a fancy towards Ruchika and molested her. Reported to Home Secretary Duggal, Rathore decided to wreak vengeance. On 17 August 1990 Rathore’s hoodlums made slogans against poor Ruchika and smashed the panes of her house. When the government decided to register an FIR in 1992 against Rathore, the next victim was Ashu (Ruchika’s brother). Arrested on false cases of car theft, in October 1993 he was detained, beaten made to sign confessional statements and taken to Ruchika to remind her of what would befall her family. Ruchika was expelled from school apparently at his instance. Unable to stand the humiliation, embarrassment and pain on 28 December 1993 Ruchika committed suicide. The post mortem was deliberately botched up. No real investigation took place. Within a month, in January 1994, charges against Rathore were dropped! After three recommendations for action between 1990 and 1992, no departmental action was taken against him. It took till 21 August 1999for Ruchika’s friend Aradhana to secure an order for a CBI inquiry from the Punjab and Haryana (P&H) High Court. CBI officer R.M. Singh is now willing to reveal how Rathore tried to pressurize the CBI. Two years later the CBI recommended Rathore’s removal. This was not done! He retired as DGP in 2002! The CBI charge sheeted him in December 1999 for outraging and insulting a women’s modesty. The charge of ‘abetment of suicide’ was quashed by the P&H High Court and Supreme Court! Effectively, he was found guilty of flirtation! In December 2009 – fined Rs.1000 and sentenced to six months rigorous imprisonment and allowed bail!
The law tries the crime not the criminal. Thus, Rathore is portrayed as having committed a number of individual smaller crimes with the real and full story missing. It is like looking at still photographs instead of a cinematographic depiction of evil. Between 1999-2000, Rathore was successfully charged only with flirtation. Was that all that Rathore did? Under public pressure, in 2009-2010 he was charged with filing false cases against Ruchika’s brother Ashu, fabricating a false post mortem for Ruchika and abetment of her suicide. Already rejected up to the Supreme Court in 2002, the abetment charge will be difficult to reopen. What is missing from the legal response is his alleged systematic harassment of Ruchika and her family, sending goondas to her home, securing her expulsion from school, targeting Ashu, interfering with police and CBI investigation, victimization – for almost 20 years with a smile on his face. On 8th January 2010 HC refused to grant bail. The smile has gone to gleam in jail unless the Supreme Court decides otherwise.
How does one get justice against pathologically vindictive police officers like Rathore and Saini who commit not one but several crimes? The answer lies in examining the process and not just the event. Indian public interest law has an answer. In December 2000, the P&H High Court itself took suo motu notice, of Rathore’s vengeance against Ruchika’s brother Ashu. On 5 July 2002 they asked District Judge, Patiala to examine the Ashu victimization. This would have x-rayed Rathore’s misdeeds. But on 6 May 2005, the Supreme Court through Justice Sabharwal made an egregious mistake and stopped the High Court proceeding. Justice Sabharwal, one of the finest judges the Supreme Court (whatever anyone else may think) simply lost the plot in this case. It was wrong to recommend a bit-by-bit justice against policeman who used the police and hoodlums to wreak a continuous stream of harassment and crimes against a family who dared oppose them. Examining the process would reveal the full story. This valuable opportunity into investigating a mass crime with its full discontents was lost.
In my view, even now no independent investigation can take place unless it is effectively monitored by the High Court or Supreme Court. Rathore has the protection of IAS and IPS officers; and of politicians and Chief Ministers. In the Hawala case (1998), the Supreme Court ensured the process of Hawala transactions was properly investigated. In the Noida case after several years of monitoring, the case against Neera Yadav proceeded to trial. Noida’s favoured allotments for 10 years were screened. This is what was begun by the High Court in 2002 for Rathore, but stopped after 3 years by the Supreme Court itself. One can only urge the Supreme Court to follow the Hawala–Noida example to supervise investigation into Rathore. Years ago, the Supreme Court would not have hesitated to do this. Today the judicial colossus, like Atlas, shrugs its shoulders.
The fulcrum around which this problem rotates is to work out a response to dealing with the police as criminals. India needs a good honest police. We know how brutal the police can be. Chhattisgarh police have gone berserk in punishing peaceful activists. But where the police turn gangster a new method of monitored investigation by courts is necessary and proper. It is fit for the Chief Justice of India to set up a process for Rathore’s unrepentant violation of due process and human rights.
Law Minister Moily’s faith in fast track courts as a complete answer in this case is exasperating. Fast track courts can only process what is fed to them. For the future specifically, in the long term substantive offences on police misbehaviour and independent investigation processes are necessary. In the Rathore case itself, his entire term of office from 1990 needs to be x-rayed for systematic abuses of power. This is equally true for his colleague, Saini. This will reveal far more than is known today. Rathore’s smile has gone. That is not enough. He needs to be exposed and punished according to law under the vigilant eye of the High Court or Supreme Court
Rajeev Dhavan
Police who turn criminal are not ordinary criminals. As soon as they move to the ‘dark side’ they build social and political impunities for themselves. Fellow policemen support them. Politicians of various complexions protect them. Rank and file policeman act as their thugs. Other thugs are at their beck and call. Real cases against them are ignored. Fake cases are registered by them to ensnare whom they want. Beyond the bent policeman lies the police ‘don’ who kills with impunity, appropriates at will and inflicts vengeance with ferocity.
The real problem with the Rathore case is that India does not have effective processes to deal with powerful policeman. Their tribe is increasing. Anti-terrorist campaigns are making terrorists in their own cause. The list is increasing: ADGP Sumedh Saini made members of Kumar family, disappear. The other brother, Ashish (a client and friend) has knocked on the highest and lowest courts for justice without success. After 9 years IG R.K. Sharma was sentenced for killing journalist Shivani Bhatnagar (another friend). In Rajasthan, DIG Tandon is accused of raping a tribal. Pradeep Sharma responsible for 107 encounter deaths is now held for fake encounter. Without activist-media campaigns (as in the Jessica Lal, Nitish Katara and Priyadarshini Mattoo cases) these are bound to fail. Such campaigns are not trial by media and should not be treated as contempt of court. A popular cry for justice is not populist justice.
Let us turn to the Rathore case. Ruchika loved tennis. Rathore was a big shot in the Lawn Tennis Association. Around August 1990 he ensnared, took a fancy towards Ruchika and molested her. Reported to Home Secretary Duggal, Rathore decided to wreak vengeance. On 17 August 1990 Rathore’s hoodlums made slogans against poor Ruchika and smashed the panes of her house. When the government decided to register an FIR in 1992 against Rathore, the next victim was Ashu (Ruchika’s brother). Arrested on false cases of car theft, in October 1993 he was detained, beaten made to sign confessional statements and taken to Ruchika to remind her of what would befall her family. Ruchika was expelled from school apparently at his instance. Unable to stand the humiliation, embarrassment and pain on 28 December 1993 Ruchika committed suicide. The post mortem was deliberately botched up. No real investigation took place. Within a month, in January 1994, charges against Rathore were dropped! After three recommendations for action between 1990 and 1992, no departmental action was taken against him. It took till 21 August 1999for Ruchika’s friend Aradhana to secure an order for a CBI inquiry from the Punjab and Haryana (P&H) High Court. CBI officer R.M. Singh is now willing to reveal how Rathore tried to pressurize the CBI. Two years later the CBI recommended Rathore’s removal. This was not done! He retired as DGP in 2002! The CBI charge sheeted him in December 1999 for outraging and insulting a women’s modesty. The charge of ‘abetment of suicide’ was quashed by the P&H High Court and Supreme Court! Effectively, he was found guilty of flirtation! In December 2009 – fined Rs.1000 and sentenced to six months rigorous imprisonment and allowed bail!
The law tries the crime not the criminal. Thus, Rathore is portrayed as having committed a number of individual smaller crimes with the real and full story missing. It is like looking at still photographs instead of a cinematographic depiction of evil. Between 1999-2000, Rathore was successfully charged only with flirtation. Was that all that Rathore did? Under public pressure, in 2009-2010 he was charged with filing false cases against Ruchika’s brother Ashu, fabricating a false post mortem for Ruchika and abetment of her suicide. Already rejected up to the Supreme Court in 2002, the abetment charge will be difficult to reopen. What is missing from the legal response is his alleged systematic harassment of Ruchika and her family, sending goondas to her home, securing her expulsion from school, targeting Ashu, interfering with police and CBI investigation, victimization – for almost 20 years with a smile on his face. On 8th January 2010 HC refused to grant bail. The smile has gone to gleam in jail unless the Supreme Court decides otherwise.
How does one get justice against pathologically vindictive police officers like Rathore and Saini who commit not one but several crimes? The answer lies in examining the process and not just the event. Indian public interest law has an answer. In December 2000, the P&H High Court itself took suo motu notice, of Rathore’s vengeance against Ruchika’s brother Ashu. On 5 July 2002 they asked District Judge, Patiala to examine the Ashu victimization. This would have x-rayed Rathore’s misdeeds. But on 6 May 2005, the Supreme Court through Justice Sabharwal made an egregious mistake and stopped the High Court proceeding. Justice Sabharwal, one of the finest judges the Supreme Court (whatever anyone else may think) simply lost the plot in this case. It was wrong to recommend a bit-by-bit justice against policeman who used the police and hoodlums to wreak a continuous stream of harassment and crimes against a family who dared oppose them. Examining the process would reveal the full story. This valuable opportunity into investigating a mass crime with its full discontents was lost.
In my view, even now no independent investigation can take place unless it is effectively monitored by the High Court or Supreme Court. Rathore has the protection of IAS and IPS officers; and of politicians and Chief Ministers. In the Hawala case (1998), the Supreme Court ensured the process of Hawala transactions was properly investigated. In the Noida case after several years of monitoring, the case against Neera Yadav proceeded to trial. Noida’s favoured allotments for 10 years were screened. This is what was begun by the High Court in 2002 for Rathore, but stopped after 3 years by the Supreme Court itself. One can only urge the Supreme Court to follow the Hawala–Noida example to supervise investigation into Rathore. Years ago, the Supreme Court would not have hesitated to do this. Today the judicial colossus, like Atlas, shrugs its shoulders.
The fulcrum around which this problem rotates is to work out a response to dealing with the police as criminals. India needs a good honest police. We know how brutal the police can be. Chhattisgarh police have gone berserk in punishing peaceful activists. But where the police turn gangster a new method of monitored investigation by courts is necessary and proper. It is fit for the Chief Justice of India to set up a process for Rathore’s unrepentant violation of due process and human rights.
Law Minister Moily’s faith in fast track courts as a complete answer in this case is exasperating. Fast track courts can only process what is fed to them. For the future specifically, in the long term substantive offences on police misbehaviour and independent investigation processes are necessary. In the Rathore case itself, his entire term of office from 1990 needs to be x-rayed for systematic abuses of power. This is equally true for his colleague, Saini. This will reveal far more than is known today. Rathore’s smile has gone. That is not enough. He needs to be exposed and punished according to law under the vigilant eye of the High Court or Supreme Court
Wednesday, January 6, 2010
Conviction by Deportation
Conviction By Deportation
PILSARC EDITORIAL
On 5th December a Nepalese student, Nitu Singh, was deported by the Maharashtra Police to Kathmandu on grounds that she was allegedly involved in anti-national activities. Reports state that this deportation was carried out at the behest of her influential politician husband – a domestic feud being couched as national security issue. The Pune police has stuck to the stand that as part of their “secret-operation” they found that she was involved in “anti-national” activities and hence handed over to her parents. DCP, Pune also made a statement that Nitu’s activities were constantly under watch. Home Ministry has taken a completely contradictory stand – Mr. Chidambaram said that there is no case against her as far as the central government is concerned. The Home Ministry sources also indicated that the Pune Police has exceeded its brief in deporting Nitu Singh without highlighting her alleged links with Maoists to the Home Ministry, Intelligence Bureau (IB) or Research and Analysis Wing (Raw).
The facts thus far are – a) Pune Police clandestinely deports a Nepalese Film student with complete disregard to procedure on grounds of threat to national security; b) There are allegations that her influential politician husband is behind the deportation; c) Nitu Singh’s father had written several letters to Pune Police seeking their help in deporting her and in a subsequent letter to Ms. Brinda Karat, he “admits that he was misled by his son-in-law and he would like Nitu Singh to finish her studies”; d) Neither the Home Ministry, IB or Raw is informed about her “anti-national activities”.
The Pune Police operation is so secretive that they did not even inform the most important offices (RAW, IB and Home Ministry) dealing with threat to national security. Further, why did the police not arrest Nitu Singh for further investigation? If the state police is to be believed, then Nitu Singh would definitely have some accomplice or an organizational back-up in her “anti-national” activities”.
The Pune Police actions smack of impunity and illegality. It is a sign of a banana republic. But India is not a banana republic. PILSARC feels that strong action should be taken against the officers who ordered and carried out this operation. The Centre must also take this issue seriously and ensure that such clandestine, illegal acts do not recur. It reflects poorly on the whole nation and casts serious doubts on the institutions in India, which are meant to promote and protect democracy, but are acting against it.
PILSARC EDITORIAL
On 5th December a Nepalese student, Nitu Singh, was deported by the Maharashtra Police to Kathmandu on grounds that she was allegedly involved in anti-national activities. Reports state that this deportation was carried out at the behest of her influential politician husband – a domestic feud being couched as national security issue. The Pune police has stuck to the stand that as part of their “secret-operation” they found that she was involved in “anti-national” activities and hence handed over to her parents. DCP, Pune also made a statement that Nitu’s activities were constantly under watch. Home Ministry has taken a completely contradictory stand – Mr. Chidambaram said that there is no case against her as far as the central government is concerned. The Home Ministry sources also indicated that the Pune Police has exceeded its brief in deporting Nitu Singh without highlighting her alleged links with Maoists to the Home Ministry, Intelligence Bureau (IB) or Research and Analysis Wing (Raw).
The facts thus far are – a) Pune Police clandestinely deports a Nepalese Film student with complete disregard to procedure on grounds of threat to national security; b) There are allegations that her influential politician husband is behind the deportation; c) Nitu Singh’s father had written several letters to Pune Police seeking their help in deporting her and in a subsequent letter to Ms. Brinda Karat, he “admits that he was misled by his son-in-law and he would like Nitu Singh to finish her studies”; d) Neither the Home Ministry, IB or Raw is informed about her “anti-national activities”.
The Pune Police operation is so secretive that they did not even inform the most important offices (RAW, IB and Home Ministry) dealing with threat to national security. Further, why did the police not arrest Nitu Singh for further investigation? If the state police is to be believed, then Nitu Singh would definitely have some accomplice or an organizational back-up in her “anti-national” activities”.
The Pune Police actions smack of impunity and illegality. It is a sign of a banana republic. But India is not a banana republic. PILSARC feels that strong action should be taken against the officers who ordered and carried out this operation. The Centre must also take this issue seriously and ensure that such clandestine, illegal acts do not recur. It reflects poorly on the whole nation and casts serious doubts on the institutions in India, which are meant to promote and protect democracy, but are acting against it.
Friday, December 25, 2009
The 15% Solution
Reservations for Minorities
The 15% Solution
Rajeev Dhavan
Like a Christmas present to expected-to-be-grateful minorities, the Ranganathan Mishra National Commission on Religion and Linguistic Minorities emerged from forgotten shelves. Envisaged on 29 October 2004, Mishra Commission was constituted on 21 March 2005 with Mishra as chair, Tahir Mehmood, Anil Wilson, and Mohinder Singh as members and Asha Das as Secretary. The Report arrived on 10 May 2007 and was tabled in Parliament on 21 December 2009. Most of the Report recommends the usual remedies of coordination, implementation and good will. Since such Reports invariably recommend the prevalent diseases of ‘Chairmanitus’ and ‘Committiatus’, these are handsomely rewarded in the Mishra report in the form of a Parliamentary Committee, National Committee, similar bodies in the States, National Coordination Committee, State Minority Commissions, Minority Welfare Departments and Minority Welfare Committees in all districts (pr.16.4.5). This is in addition to the existing statutory National Minority Commission (1993) and National Commission for Educational Institutions (1983). Rules and procedures were recommended for the National Minorities Development and Finance Corporation and the Maulana Azad Education Foundation to uplift the minorities economically, with, possibly, the creamy layer licking off the cream (pr.16.4.5). In all this, the report is like countless reports which shelve dust; and, if implemented create sinecure posts for absentee members whose offices suffer paperonic decay. All goody-goody programmes are not for serious implementation.
The basic approach of the National Commission is to exorcise affirmative action programmes of Hindu notions of caste. The Commission was “convinced that any religion based discrimination in selecting particular castes for affirmative action will conflict with the letter and spirit of the constitutional provisions”. But this was exactly the view of the minority judges in the famous Mandal case (1992). The Commission notes that ‘castes’ exist in all religions to ask why affirmative action is restricted only to Hindus. It suggests that the Hindu monopoly on affirmative action be broken in favour a secular estimate of similarity placed castes in other religions. The Mishra Commission wants the Scheduled Caste (1950) and Tribes (1951) Orders to be amended accordingly. What the Supreme Court failed to do in the Mandal case (1992) is now attempted by the Mishra report (2009).
Mandal had spoken of the possibility of Muslim and Christian reservations (see (1992) Supp. 3 SCC 217 prs. 757, 761, 769, 777, 778, 782 and 788). But it is precisely the attempt to include Muslim as ‘Other Backward Classes’ (OBC) which failed to pass muster before two 5 judge benches of the Andhra High Court. A 7 judge bench decision is awaited. The problem has been that the High Court has applied much more rigorous tests of backwardness to Muslim disadvantaged than their Hindu counterparts. Most OBCs are unquestioningly appointed by way of largesse and patronage. Both the Mandal (1992) and the Nagaraj decisions (2006) want rigour as did initial decision in the OBC case (2007). Eventually, a lax approach seems to have continued. My own experience of arguing the Andhra Reservation cases for the Muslims is that Muslim demands for reservations are treated with greater strictness than Hindu demands.
But the Mishra Commission’s approach may defy acceptance. We know that the purpose of reservations on public posts is to ensure that those not adequately represented in the services can share the power of the State [see Mandal decision (prs. 694, 788)]. The Mishra Report wrongly invokes the “full sanction of the Article 16(4) of the Constitution” (pr.16.2.16) for 15% reservation for government jobs for Muslim, Christian and other minorities is on the assumption that all minorities must necessarily be backward (pr.16.2.17). But all Muslims, Christians and others are not backward – only some groups amongst them.
What is being insidiously resurrected is ‘communal representation’ under the rubric of ‘under-representation’. Communal electoral quotas in Parliament and the State assemblies are not being suggested. The 15% solution applies to empowerment in bureaucracy on the basis of in adequacy of representation. There are many communities and faiths which though notionally backward, are inadequately represented in the services. Emphasis on inadequacy of representation on the assumption of backwardness changes the ball game completely to encourage communally inspired demands for all. Such communal approaches were specifically excluded from the Constitution and smack of a barely disguised communalism. It is not clear whether this new quota will be an OBC quota or SC or ST quota? Or whether minority quotas will be written into these quotas or added to them? If added, the overall quotas will become 64%; if assimilated, they will cause heart burning in the OBC, SC and ST who will have their quota reduced from 50 percent to 35%. Muslims and Christians cannot generally be admitted to reservation. Reservations have to be of backward groups amongst them.
The 15% solution is also suggested for education. The St. Stephens case (1992) indicated a 50% cap on preferentially recruited minority students in minority aided institutions. In TMA Pai (2002) this cap was retained for these aided institutions but subject to the further limitation of getting minority students only from within the State where the institution was geographically located. Thus, a nationally renowned St. Stephen’s could recruit preferred minority students almost exclusively from Delhi! The Mishra Commission comes up with a 15% solution so that all “non-minority educational institutions should have ear-marked” 15% seats for minorities (pr.16.2.7). This is tit (15%) for tat (loss of 50% out of 100). It has no plausible constitutional basis and will make a further mess out of the existing jungle. Even after the 93rd amendment protecting the minority institutional rights in this way is not permissible. The 15% is to be divided into 10% for Muslims and 5% for other minorities to pure communal quotas in all non-minority institutions is contrary to both secularism and settled principles of affirmative action. The Mishra Commission assumes that the National Education Policy of 1986 identified Muslims and Neo-Buddhists as most educationally backward (pr.16.2.2.). That was 23 years ago without recommending a religion based quota.
However, the Mishra Commission rightly insists that SC and ST quotas must not only extend to Hindus but all similarly placed castes or groups in minority communities. Equally religious conversion does not change caste standing. The SC order (1950) was consciously designed for Hindus and later extended to Buddhists and Sikhs. The Commission is right. Castes are part of the Muslim social fabric. It should extend to Muslims and other minorities so that SC and ST lists become ‘religion’ free. Here Asha Das’s dissent seems to be misplaced. Such a religion free approach should exist for SC, ST and OBC. Equally, the Supreme Court’s decision in Soosai (1997) making it more difficult for converts from Hinduism to retain reserved status merits examination in the light of the Mishra report.
Proliferating language is important. A language dies every day. But for Pakistan, Urdu would have slowly died as a living language. A better prognosis was needed than implementing existing constitutional dispensations and the three language formula.
Without actually saying so (and suggesting the contrary), the Mishra report has moved away from rigorous ‘backwardness’ standard into a clumsy communalism. Lifting minority communities require a much more pointed and focused policy. The Mishra Report is a political report – a testament to political parties seeking communal vote banks by declamation rather than planned implementation. Beware of ‘wisemen’ bringing gifts.
The 15% Solution
Rajeev Dhavan
Like a Christmas present to expected-to-be-grateful minorities, the Ranganathan Mishra National Commission on Religion and Linguistic Minorities emerged from forgotten shelves. Envisaged on 29 October 2004, Mishra Commission was constituted on 21 March 2005 with Mishra as chair, Tahir Mehmood, Anil Wilson, and Mohinder Singh as members and Asha Das as Secretary. The Report arrived on 10 May 2007 and was tabled in Parliament on 21 December 2009. Most of the Report recommends the usual remedies of coordination, implementation and good will. Since such Reports invariably recommend the prevalent diseases of ‘Chairmanitus’ and ‘Committiatus’, these are handsomely rewarded in the Mishra report in the form of a Parliamentary Committee, National Committee, similar bodies in the States, National Coordination Committee, State Minority Commissions, Minority Welfare Departments and Minority Welfare Committees in all districts (pr.16.4.5). This is in addition to the existing statutory National Minority Commission (1993) and National Commission for Educational Institutions (1983). Rules and procedures were recommended for the National Minorities Development and Finance Corporation and the Maulana Azad Education Foundation to uplift the minorities economically, with, possibly, the creamy layer licking off the cream (pr.16.4.5). In all this, the report is like countless reports which shelve dust; and, if implemented create sinecure posts for absentee members whose offices suffer paperonic decay. All goody-goody programmes are not for serious implementation.
The basic approach of the National Commission is to exorcise affirmative action programmes of Hindu notions of caste. The Commission was “convinced that any religion based discrimination in selecting particular castes for affirmative action will conflict with the letter and spirit of the constitutional provisions”. But this was exactly the view of the minority judges in the famous Mandal case (1992). The Commission notes that ‘castes’ exist in all religions to ask why affirmative action is restricted only to Hindus. It suggests that the Hindu monopoly on affirmative action be broken in favour a secular estimate of similarity placed castes in other religions. The Mishra Commission wants the Scheduled Caste (1950) and Tribes (1951) Orders to be amended accordingly. What the Supreme Court failed to do in the Mandal case (1992) is now attempted by the Mishra report (2009).
Mandal had spoken of the possibility of Muslim and Christian reservations (see (1992) Supp. 3 SCC 217 prs. 757, 761, 769, 777, 778, 782 and 788). But it is precisely the attempt to include Muslim as ‘Other Backward Classes’ (OBC) which failed to pass muster before two 5 judge benches of the Andhra High Court. A 7 judge bench decision is awaited. The problem has been that the High Court has applied much more rigorous tests of backwardness to Muslim disadvantaged than their Hindu counterparts. Most OBCs are unquestioningly appointed by way of largesse and patronage. Both the Mandal (1992) and the Nagaraj decisions (2006) want rigour as did initial decision in the OBC case (2007). Eventually, a lax approach seems to have continued. My own experience of arguing the Andhra Reservation cases for the Muslims is that Muslim demands for reservations are treated with greater strictness than Hindu demands.
But the Mishra Commission’s approach may defy acceptance. We know that the purpose of reservations on public posts is to ensure that those not adequately represented in the services can share the power of the State [see Mandal decision (prs. 694, 788)]. The Mishra Report wrongly invokes the “full sanction of the Article 16(4) of the Constitution” (pr.16.2.16) for 15% reservation for government jobs for Muslim, Christian and other minorities is on the assumption that all minorities must necessarily be backward (pr.16.2.17). But all Muslims, Christians and others are not backward – only some groups amongst them.
What is being insidiously resurrected is ‘communal representation’ under the rubric of ‘under-representation’. Communal electoral quotas in Parliament and the State assemblies are not being suggested. The 15% solution applies to empowerment in bureaucracy on the basis of in adequacy of representation. There are many communities and faiths which though notionally backward, are inadequately represented in the services. Emphasis on inadequacy of representation on the assumption of backwardness changes the ball game completely to encourage communally inspired demands for all. Such communal approaches were specifically excluded from the Constitution and smack of a barely disguised communalism. It is not clear whether this new quota will be an OBC quota or SC or ST quota? Or whether minority quotas will be written into these quotas or added to them? If added, the overall quotas will become 64%; if assimilated, they will cause heart burning in the OBC, SC and ST who will have their quota reduced from 50 percent to 35%. Muslims and Christians cannot generally be admitted to reservation. Reservations have to be of backward groups amongst them.
The 15% solution is also suggested for education. The St. Stephens case (1992) indicated a 50% cap on preferentially recruited minority students in minority aided institutions. In TMA Pai (2002) this cap was retained for these aided institutions but subject to the further limitation of getting minority students only from within the State where the institution was geographically located. Thus, a nationally renowned St. Stephen’s could recruit preferred minority students almost exclusively from Delhi! The Mishra Commission comes up with a 15% solution so that all “non-minority educational institutions should have ear-marked” 15% seats for minorities (pr.16.2.7). This is tit (15%) for tat (loss of 50% out of 100). It has no plausible constitutional basis and will make a further mess out of the existing jungle. Even after the 93rd amendment protecting the minority institutional rights in this way is not permissible. The 15% is to be divided into 10% for Muslims and 5% for other minorities to pure communal quotas in all non-minority institutions is contrary to both secularism and settled principles of affirmative action. The Mishra Commission assumes that the National Education Policy of 1986 identified Muslims and Neo-Buddhists as most educationally backward (pr.16.2.2.). That was 23 years ago without recommending a religion based quota.
However, the Mishra Commission rightly insists that SC and ST quotas must not only extend to Hindus but all similarly placed castes or groups in minority communities. Equally religious conversion does not change caste standing. The SC order (1950) was consciously designed for Hindus and later extended to Buddhists and Sikhs. The Commission is right. Castes are part of the Muslim social fabric. It should extend to Muslims and other minorities so that SC and ST lists become ‘religion’ free. Here Asha Das’s dissent seems to be misplaced. Such a religion free approach should exist for SC, ST and OBC. Equally, the Supreme Court’s decision in Soosai (1997) making it more difficult for converts from Hinduism to retain reserved status merits examination in the light of the Mishra report.
Proliferating language is important. A language dies every day. But for Pakistan, Urdu would have slowly died as a living language. A better prognosis was needed than implementing existing constitutional dispensations and the three language formula.
Without actually saying so (and suggesting the contrary), the Mishra report has moved away from rigorous ‘backwardness’ standard into a clumsy communalism. Lifting minority communities require a much more pointed and focused policy. The Mishra Report is a political report – a testament to political parties seeking communal vote banks by declamation rather than planned implementation. Beware of ‘wisemen’ bringing gifts.
Saturday, November 28, 2009
LIBERHAN COMMISSION REPORT
LIBERHAN COMMISSION REPORT
- RAJEEV DHAVAN
At last after 17 years, 399 settings, 48 extensions, a cost of Rs.17 crores, embarrassing differences between the Commission’s counsel and Chairperson, litigation in Court to delay it, the Liberhan Report on the destruction of Babri Masjid has arrived. Submitted on 30th June 2009, Home Minister Chidambaram held on to it until, it was leaked on 23rd November 2009 amidst accusations of conspiracy and finally tabled on 24th November.
First, the leak. It was a coup for a newspaper. If anyone knows about the leak, surely it is that newspaper which stole a march to make a coup. In fact, what was wrong was the archaic law of non-disclosure. It is an absurd relic from English practice. There is no reason why reports should be disclosed to parliament first. On one occasion in 1960 or so, Pandit Nehru was accused of breach of parliamentary privilege because he pre-disclosed to the press a comment he was to make in the Parliament. This part of Parliamentary privilege should be removed by legislation. An Act should be enacted which simply says “All reports to Parliament shall be submitted to the Speaker and Chair of each House; and simultaneously published straightaway; (2) Any Action Taken Report (ATR) shall be declared to Parliament within one month”. This cat-and-mouse game of publication will disappear consistent with RTI principles of transparency. No report should be withheld from the public by either the government or the parliament.
Second, the spat between the Chairperson and Liberhan Counsel Anupam Gupta is unnecessary. Self-advertisement is not unknown to Gupta who acquired notoriety in other controversies over judicial corruption in 1993. Liberhan appointed Gupta. There is no reason to doubt Liberhan’s integrity. Making media capital out of personal recriminations is not right morally, under lawyer-conduct rules or otherwise.
Everytime a report comes out, we do not have to wail that all commissions are useless and designed to gather dusts. Reports are of many kinds: on corruption, riots, events or people. Corruption reports on Kairon and TT Krishnamachari were given to Nehru who took action. Today, Prime Ministers and all political parties tolerate corruption. Parliament’s own Joint Committee Report on Bofors, on Rajiv Gandhi’s involvement, has never been accepted as true or convincing. Commission reports should not become political toys. The Babri Masjid report explores a damning event of our history. It is easy to dissolve its findings in acerbic party-political acid. But this should not happen.
Let us look at the Report and the political antics designed to obfuscate its message. This is a peoples’ report for the people to find their way around a peoples’ issue on an event that divided India. 6th December 1992, when the Masjid fell, is a watershed in India’s contemporary history. Through the demolition, the Sangh Parivar legitimized the politics of a destructive communal hate. Hitherto, communal tension was regarded as an evil in governance. After Babri Masjid, BJP leaders and the Parivar set a new political standard which declared that the destruction of Masjids, killings of peoples, destroying of art works were a legitimate pursuit of a communal pseudo-Hindu nationalism advancing the cause of the “true Aryan” people.
Liberhan was not examining a “who-done-it”. He was looking at a phenomenon that shook India’s secular, multicultural people and polity. What Liberhan found was what we already know but need to know better. His conclusions in chapter 14 were (1) Babri Masjid was not an unintended spontaneous event except for “self-serving hyperbole”; (2) Logistically, given the total preparedness of the Karsevaks, there was a well planned conspiracy to destroy the Masjid; (3) Financial support came from Sangh Parivar funds including bank accounts operated by various named persons; (4) The, then, Chief Minister Kalyan Singh and his handpicked bureaucrats were involved in the conspiracy to destroy the Masjid and allowed a “parallel government” and “cartel” to facilitate the campaign which infiltrated the government; (5) The state (of UP) had become a willing ally and co-conspirator in the joint common enterprise…(of) demolishing the structure.”; (6) The conspiracy arose from the single-minded efforts of the RSS and VHP ideologues and theologians to manipulate ordinary people into a frenzied mob; (7) The campaign had nothing to do with a popular mandate from the people who were manipulated to support it; (8) The police fell in line with this conspiracy; (9) The union government was crippled by failure of intelligence and the “all-is-well reports by its rapporteur Tej Shankar”; (10) Not a single video camera was put in place; (11) The media “and journalists were subjected to systematic harassment”; (12) Leaders like Vajpayee, MM Joshi and L.K. Advani, and Govindacharya knew of the designs of the Sangh Parivar and lent their support in various ways; (13) Muslim leaders “wittingly or unwittingly” did not counter the plans of the RSS and VHP, effectively to make the latter’s task easier; (14) 68 persons are found “culpable”, including Advani, Vajpayee and Joshi, but not Narsimha Rao.
There are several recommendations for the future on both the inadequacy of response and the need for new changes. None of the 68 indicted culpably should hide behind procedure (even if those like Vajpayee have a genuine grievance of not being called a witness in his defence) or the leak of the report. Let them replace artful defence with honesty and candour. The indicted persons face two alternatives other than criminal proceedings. The first alternative for them is to candidly state: “I was involved in the destruction of the Babri Masjid and I am proud of it”; and face the social, legal and political consequences. Alternatively, if they are innocent, then each individual in this group of 68 should be prepared to say: “I never intended or participated in any conspiracy to destroy the Masjid; I denounce and condemn its destruction as illegal and unconscionable; I express my regrets over its destruction and promise never to be involved in any conspiracy and actions to destroy religious structures or victimize people of other faiths and religions.” There is no other alternative. Its truth or nothing.
India must put this divisive event behind it. The Supreme Court decisions on the Ayodhya Act and Presidential reference case of 1994 have stated that the vesting of the Babri Masjid area in the Union Government makes the latter trustees and not owners of the structural area until the Lucknow court decides this issue. At least court proceedings have brought temporary peace. But, following the Liberhan Commission report there should be a ‘truth and reconciliation’ in which statements and regrets are talked through.
The BJP and Sangh Parivar must be truthful. The nation cannot move on until the truth is told. The Liberhan Commission invites a premium on truth not for further divisiveness but to heal a nation which was split open. But if obtaining political power is more important than governance, these games will continue to infiltrate our psyche. The most frightening part of the Liberhan report is how the ‘state’ and ‘governance’ can be hijacked into manipulation and control. Fascism began in this way.
- RAJEEV DHAVAN
At last after 17 years, 399 settings, 48 extensions, a cost of Rs.17 crores, embarrassing differences between the Commission’s counsel and Chairperson, litigation in Court to delay it, the Liberhan Report on the destruction of Babri Masjid has arrived. Submitted on 30th June 2009, Home Minister Chidambaram held on to it until, it was leaked on 23rd November 2009 amidst accusations of conspiracy and finally tabled on 24th November.
First, the leak. It was a coup for a newspaper. If anyone knows about the leak, surely it is that newspaper which stole a march to make a coup. In fact, what was wrong was the archaic law of non-disclosure. It is an absurd relic from English practice. There is no reason why reports should be disclosed to parliament first. On one occasion in 1960 or so, Pandit Nehru was accused of breach of parliamentary privilege because he pre-disclosed to the press a comment he was to make in the Parliament. This part of Parliamentary privilege should be removed by legislation. An Act should be enacted which simply says “All reports to Parliament shall be submitted to the Speaker and Chair of each House; and simultaneously published straightaway; (2) Any Action Taken Report (ATR) shall be declared to Parliament within one month”. This cat-and-mouse game of publication will disappear consistent with RTI principles of transparency. No report should be withheld from the public by either the government or the parliament.
Second, the spat between the Chairperson and Liberhan Counsel Anupam Gupta is unnecessary. Self-advertisement is not unknown to Gupta who acquired notoriety in other controversies over judicial corruption in 1993. Liberhan appointed Gupta. There is no reason to doubt Liberhan’s integrity. Making media capital out of personal recriminations is not right morally, under lawyer-conduct rules or otherwise.
Everytime a report comes out, we do not have to wail that all commissions are useless and designed to gather dusts. Reports are of many kinds: on corruption, riots, events or people. Corruption reports on Kairon and TT Krishnamachari were given to Nehru who took action. Today, Prime Ministers and all political parties tolerate corruption. Parliament’s own Joint Committee Report on Bofors, on Rajiv Gandhi’s involvement, has never been accepted as true or convincing. Commission reports should not become political toys. The Babri Masjid report explores a damning event of our history. It is easy to dissolve its findings in acerbic party-political acid. But this should not happen.
Let us look at the Report and the political antics designed to obfuscate its message. This is a peoples’ report for the people to find their way around a peoples’ issue on an event that divided India. 6th December 1992, when the Masjid fell, is a watershed in India’s contemporary history. Through the demolition, the Sangh Parivar legitimized the politics of a destructive communal hate. Hitherto, communal tension was regarded as an evil in governance. After Babri Masjid, BJP leaders and the Parivar set a new political standard which declared that the destruction of Masjids, killings of peoples, destroying of art works were a legitimate pursuit of a communal pseudo-Hindu nationalism advancing the cause of the “true Aryan” people.
Liberhan was not examining a “who-done-it”. He was looking at a phenomenon that shook India’s secular, multicultural people and polity. What Liberhan found was what we already know but need to know better. His conclusions in chapter 14 were (1) Babri Masjid was not an unintended spontaneous event except for “self-serving hyperbole”; (2) Logistically, given the total preparedness of the Karsevaks, there was a well planned conspiracy to destroy the Masjid; (3) Financial support came from Sangh Parivar funds including bank accounts operated by various named persons; (4) The, then, Chief Minister Kalyan Singh and his handpicked bureaucrats were involved in the conspiracy to destroy the Masjid and allowed a “parallel government” and “cartel” to facilitate the campaign which infiltrated the government; (5) The state (of UP) had become a willing ally and co-conspirator in the joint common enterprise…(of) demolishing the structure.”; (6) The conspiracy arose from the single-minded efforts of the RSS and VHP ideologues and theologians to manipulate ordinary people into a frenzied mob; (7) The campaign had nothing to do with a popular mandate from the people who were manipulated to support it; (8) The police fell in line with this conspiracy; (9) The union government was crippled by failure of intelligence and the “all-is-well reports by its rapporteur Tej Shankar”; (10) Not a single video camera was put in place; (11) The media “and journalists were subjected to systematic harassment”; (12) Leaders like Vajpayee, MM Joshi and L.K. Advani, and Govindacharya knew of the designs of the Sangh Parivar and lent their support in various ways; (13) Muslim leaders “wittingly or unwittingly” did not counter the plans of the RSS and VHP, effectively to make the latter’s task easier; (14) 68 persons are found “culpable”, including Advani, Vajpayee and Joshi, but not Narsimha Rao.
There are several recommendations for the future on both the inadequacy of response and the need for new changes. None of the 68 indicted culpably should hide behind procedure (even if those like Vajpayee have a genuine grievance of not being called a witness in his defence) or the leak of the report. Let them replace artful defence with honesty and candour. The indicted persons face two alternatives other than criminal proceedings. The first alternative for them is to candidly state: “I was involved in the destruction of the Babri Masjid and I am proud of it”; and face the social, legal and political consequences. Alternatively, if they are innocent, then each individual in this group of 68 should be prepared to say: “I never intended or participated in any conspiracy to destroy the Masjid; I denounce and condemn its destruction as illegal and unconscionable; I express my regrets over its destruction and promise never to be involved in any conspiracy and actions to destroy religious structures or victimize people of other faiths and religions.” There is no other alternative. Its truth or nothing.
India must put this divisive event behind it. The Supreme Court decisions on the Ayodhya Act and Presidential reference case of 1994 have stated that the vesting of the Babri Masjid area in the Union Government makes the latter trustees and not owners of the structural area until the Lucknow court decides this issue. At least court proceedings have brought temporary peace. But, following the Liberhan Commission report there should be a ‘truth and reconciliation’ in which statements and regrets are talked through.
The BJP and Sangh Parivar must be truthful. The nation cannot move on until the truth is told. The Liberhan Commission invites a premium on truth not for further divisiveness but to heal a nation which was split open. But if obtaining political power is more important than governance, these games will continue to infiltrate our psyche. The most frightening part of the Liberhan report is how the ‘state’ and ‘governance’ can be hijacked into manipulation and control. Fascism began in this way.
Saturday, November 14, 2009
Even prisoners have rights
EVEN PRISONERS HAVE RIGHTS
- RAJEEV DHAVAN
India’s prison law and policy needs total revaluation. For example, India’s Prison’s Act 1894 permits “whipping” for prison indiscipline. This remains on India’s statute book though abolished in Andhra, Assam, Bihar, Gujarat, Madhya Pradesh, Maharashtra and West Bengal. Such laws and policies represent a prevailing attitude towards prisoners. The irredoubtable Justice Krishna Iyer carried forward the case for humanity, respecting the life and liberty during confinement. In the Sunil Batra cases, Krishna Iyer J deemed solitary confinements, bar fetters and whipping “barbaric”. In 1966 the Supreme court granted convict Prabhakar to publish a book on the atom. A prison is not a dungeon in the Bastille. Kiran Bedi has shown that prisoners have talents, need opportunities and need creative and humane treatment. Constitutionally the message is: “Even prisoners have rights”
The Manu Sharma parole has excited all kinds of passions. The reactions are quite typical of our reactions to cricket. If our team or some player wins, we accord glory to them. If not, we are inconsolably depressed. While evaluating Manu Sharma’s parole, we should not put the entire system of parole into jeopardy.
Parole is a right (perhaps, in strict legal parlance, a privilege) that inheres in every prisioner. There are two broad views on parole. Justice Krishna Iyer’s expansive view in Dharambir (1979) was that parole is a humanizing necessity, which should be allowed for two weeks to every prisoner every year to prevent prisoners from becoming hardened criminals. The second ‘strict necessity’ view is that parole should be granted for personal necessity. In both views, good behaviour is a pre-condition. In the expansive view every peccadillo by a person is not bad behaviour heralding a disentitling fall from grace.
Even Manu Sharma who is in jail for the killing of the beautiful and innocent, Jessica Lall, is entitled to be considered for remission and parole with strict conditionalities. Our Prisoners Act 1900 is woefully deficient on the subject of parole. Under the Constitution “prisons” are a state subject (List II, Entry 4). So, it is left to the states to devise rules. Rules of varying dimensions have been devised by law in Bihar, Madhya Pradesh, Tripura and West Bengal. Parole terms usually require serving one year of a larger term, considering the nature of the offence and good behaviour in prison. Tripura even allows release of upto 2 years, whilst others usually permit parole for 15 to 30 days. But apart from statutory provisions, there is also the general power of pardon in the President (article 72) and the Governor (article 161) which extends to granting parole. In addition there is also State Government’s power under the Criminal Procedure Code 1973 (section 432) to suspend or remit sentences. This latter judicialised procedure is somewhat different from the pure bureaucratic procedure requiring the state to seek the opinion of presiding judge of the convicting court. This diversity of legal and constitutional options is as haphazard as the results they produce.
The Delhi system seems to encounter many difficulties. The relevant circular is that of 7 March 1958. No changes have been made. If we look at the last four years, newspaper estimates suggest about 4 out of 5 parole applications fail. Reportedly in 2009, out of 132 applications, 11 were granted, 33 rejected and 88 are pending. This system of denial is being examined by the Delhi High Court. In Sumedh Singh’s case (of Connaught Place shooting fame) Justice Kailash Gambhir strongly disapproved delay in processing parole applications. The High Court has itself issued a suo motu petition (WP 1121/2009) to resolve this. It will be heard on 25 November 2009. whether a final court verdict with guidelines will emerge on that day is doubtful.
In Manu Sharma’s case, Chief Minister Dikshit reports that the decision was taken after processual consideration by the Prison Department, Police, Home Department, Chief Minister. The Delhi Legal Services Authority criticised this approach whereby applications are often considered after the necessity (e.g. attending a marriage, sickness within family etc) is over! The High Court in October 2009 was absolutely right in demanding a review of the procedures. What we need is a single committee working full time to examine applications. Granting parole is not a part time job for a busy Chief Minister following hastily put together reports of uneven depth and significance. The Lieutenant Governor affirmation becomes a mere signature behind which he can hide his non-application of mind.
The Manu Sharma affair should not take the public gaze away from the need of a fair, just, quick and efficient parole system for deserving prisoners. In fact, Justice Krishna Iyer’s view that parole should not just be grounded on necessity but as a matter of practice for at least two weeks every year for long-serving prisoners deserves high consideration.
Manu Sharma’s personal case was clearly botched up. Consistent with what I have argued earlier, prima facie Manu Sharma deserved bail subject to conditionalities (including, perhaps against armed visiting of pubs). He had been a model prisoner and had been in jail for a considerable period. There was a difference of opinion between the Delhi Police (which said “no”) and the Chandigarh Police (which said “yes”). It was to Chandigarh that Manu was heading. There was no serious flaw in granting him bail. But there is a serious doubt about how his application was prioritised. Was it that his mother was ‘seriously ill’? This could be a reason for accelerated consideration. Was it that he had to attend business? That, by itself, is not a reason for prioritised consideration? But the grant of parole to Manu Sharma created suspicion on at least two counts. First, there appears to have been political influence in prioritizing his case. His father is an influential businessman and politician. Second, his parole was extended by a month till 22 November 2009 - with a three day in between the two months of parole without permission. An oversight, perhaps, but deliberately so.
There is a distinction between the granting of parole and its abuse. Did Manu abuse his parole? There seems little doubt that the very granting of parole was tainted. His mother, Shakti Rani, was far from ill and she was organising press conferences for under-19 women’s cricket competition. But Manu’s case has acquired public notoriety because he went to a pub in Delhi’s Samrat Hotel. This was certainly news, but was it a breach of parole? By itself, I do not think so. Not visiting a bar should have been a express condition of his parole. Suppose a spy found that Manu was drinking whisky and champagne everyday at home, while playing rummy with his mother. Would this be a breach of his parole? Manu’s singular trip to a club is not by itself a breach of parole (even if the media thinks otherwise) because of the absence of a strict condition of parole to this effect which should have been put in his case. Equally Manu should have had better sense than flaunt his parole in a bar.
The parole system is a salutary system. Prisoners have rights and duties. A proper full time system of parole must replace the present ad hoc system. Our reactions to prisoners and their parole are as medieval as our minds on the subject.
- RAJEEV DHAVAN
India’s prison law and policy needs total revaluation. For example, India’s Prison’s Act 1894 permits “whipping” for prison indiscipline. This remains on India’s statute book though abolished in Andhra, Assam, Bihar, Gujarat, Madhya Pradesh, Maharashtra and West Bengal. Such laws and policies represent a prevailing attitude towards prisoners. The irredoubtable Justice Krishna Iyer carried forward the case for humanity, respecting the life and liberty during confinement. In the Sunil Batra cases, Krishna Iyer J deemed solitary confinements, bar fetters and whipping “barbaric”. In 1966 the Supreme court granted convict Prabhakar to publish a book on the atom. A prison is not a dungeon in the Bastille. Kiran Bedi has shown that prisoners have talents, need opportunities and need creative and humane treatment. Constitutionally the message is: “Even prisoners have rights”
The Manu Sharma parole has excited all kinds of passions. The reactions are quite typical of our reactions to cricket. If our team or some player wins, we accord glory to them. If not, we are inconsolably depressed. While evaluating Manu Sharma’s parole, we should not put the entire system of parole into jeopardy.
Parole is a right (perhaps, in strict legal parlance, a privilege) that inheres in every prisioner. There are two broad views on parole. Justice Krishna Iyer’s expansive view in Dharambir (1979) was that parole is a humanizing necessity, which should be allowed for two weeks to every prisoner every year to prevent prisoners from becoming hardened criminals. The second ‘strict necessity’ view is that parole should be granted for personal necessity. In both views, good behaviour is a pre-condition. In the expansive view every peccadillo by a person is not bad behaviour heralding a disentitling fall from grace.
Even Manu Sharma who is in jail for the killing of the beautiful and innocent, Jessica Lall, is entitled to be considered for remission and parole with strict conditionalities. Our Prisoners Act 1900 is woefully deficient on the subject of parole. Under the Constitution “prisons” are a state subject (List II, Entry 4). So, it is left to the states to devise rules. Rules of varying dimensions have been devised by law in Bihar, Madhya Pradesh, Tripura and West Bengal. Parole terms usually require serving one year of a larger term, considering the nature of the offence and good behaviour in prison. Tripura even allows release of upto 2 years, whilst others usually permit parole for 15 to 30 days. But apart from statutory provisions, there is also the general power of pardon in the President (article 72) and the Governor (article 161) which extends to granting parole. In addition there is also State Government’s power under the Criminal Procedure Code 1973 (section 432) to suspend or remit sentences. This latter judicialised procedure is somewhat different from the pure bureaucratic procedure requiring the state to seek the opinion of presiding judge of the convicting court. This diversity of legal and constitutional options is as haphazard as the results they produce.
The Delhi system seems to encounter many difficulties. The relevant circular is that of 7 March 1958. No changes have been made. If we look at the last four years, newspaper estimates suggest about 4 out of 5 parole applications fail. Reportedly in 2009, out of 132 applications, 11 were granted, 33 rejected and 88 are pending. This system of denial is being examined by the Delhi High Court. In Sumedh Singh’s case (of Connaught Place shooting fame) Justice Kailash Gambhir strongly disapproved delay in processing parole applications. The High Court has itself issued a suo motu petition (WP 1121/2009) to resolve this. It will be heard on 25 November 2009. whether a final court verdict with guidelines will emerge on that day is doubtful.
In Manu Sharma’s case, Chief Minister Dikshit reports that the decision was taken after processual consideration by the Prison Department, Police, Home Department, Chief Minister. The Delhi Legal Services Authority criticised this approach whereby applications are often considered after the necessity (e.g. attending a marriage, sickness within family etc) is over! The High Court in October 2009 was absolutely right in demanding a review of the procedures. What we need is a single committee working full time to examine applications. Granting parole is not a part time job for a busy Chief Minister following hastily put together reports of uneven depth and significance. The Lieutenant Governor affirmation becomes a mere signature behind which he can hide his non-application of mind.
The Manu Sharma affair should not take the public gaze away from the need of a fair, just, quick and efficient parole system for deserving prisoners. In fact, Justice Krishna Iyer’s view that parole should not just be grounded on necessity but as a matter of practice for at least two weeks every year for long-serving prisoners deserves high consideration.
Manu Sharma’s personal case was clearly botched up. Consistent with what I have argued earlier, prima facie Manu Sharma deserved bail subject to conditionalities (including, perhaps against armed visiting of pubs). He had been a model prisoner and had been in jail for a considerable period. There was a difference of opinion between the Delhi Police (which said “no”) and the Chandigarh Police (which said “yes”). It was to Chandigarh that Manu was heading. There was no serious flaw in granting him bail. But there is a serious doubt about how his application was prioritised. Was it that his mother was ‘seriously ill’? This could be a reason for accelerated consideration. Was it that he had to attend business? That, by itself, is not a reason for prioritised consideration? But the grant of parole to Manu Sharma created suspicion on at least two counts. First, there appears to have been political influence in prioritizing his case. His father is an influential businessman and politician. Second, his parole was extended by a month till 22 November 2009 - with a three day in between the two months of parole without permission. An oversight, perhaps, but deliberately so.
There is a distinction between the granting of parole and its abuse. Did Manu abuse his parole? There seems little doubt that the very granting of parole was tainted. His mother, Shakti Rani, was far from ill and she was organising press conferences for under-19 women’s cricket competition. But Manu’s case has acquired public notoriety because he went to a pub in Delhi’s Samrat Hotel. This was certainly news, but was it a breach of parole? By itself, I do not think so. Not visiting a bar should have been a express condition of his parole. Suppose a spy found that Manu was drinking whisky and champagne everyday at home, while playing rummy with his mother. Would this be a breach of his parole? Manu’s singular trip to a club is not by itself a breach of parole (even if the media thinks otherwise) because of the absence of a strict condition of parole to this effect which should have been put in his case. Equally Manu should have had better sense than flaunt his parole in a bar.
The parole system is a salutary system. Prisoners have rights and duties. A proper full time system of parole must replace the present ad hoc system. Our reactions to prisoners and their parole are as medieval as our minds on the subject.
Thursday, November 12, 2009
Telangana
Telangana
Rajeev Dhavan
Eight percent growth does not define India. It is living people who do. For decades, it is poor who have made India proud. Harassed and manipulated, they cling on to their identities of faith, group and culture in ways that both assimilate and divide.
To accommodate regional and historical claims, India evolved flexible boundaries and ideas for its federalism. From 1950-1956, there were class ‘A’, ‘B’ and ‘C’ states. A States Reorganization Committee (1956) abolished this framework to create new States and Territories. After Nehru gave up his resistance, linguistic federalism went further with the creation of Maharashtra, Gujarat (1960), Punjab, Haryana (1966) and Himachal (1971). Cultural and political pressures led to the reorganization of the North East creating Nagaland (1962), Meghalaya, Manipur and Tripura (1972), Mizoram, Arunachal, Goa (1987), Chhatisgarh, Jharkhand and Uttarkhand (2000). Indian federalism is a-symmetrical with special status to Jammu and Kashmir (article 370), and to various other states (article 371A) and the Tribal Areas (Vth and VIth Schedule). Each reorganization has worked well despite the disapproving flutter that India is splitting into unmanageable pieces.
The Constitution accommodatingly allowed geographic restructuring by the Union, requiring no more than the legislature of the affected state to “express its views” (article 3). The people were not involved. There was no referenda. But should Indian federalism be re-written by agitational politics? Is there no limit to redrawing state boundaries? Just because Potti Sriramalu’s fast to death created linguistic Andhra, it does not follow that K. Chandrasekhar Rao’s (KSR) fast should yield a similar shot gun result. Conceding Telengana has triggered off a chain reaction of demands including Rayalseema within Andhra, Bundelkhand, Harit Pradesh and Purvanchal in Uttar Pradesh, Gorkhaland in West Bengal, Bodoland in Assam, Coorg from Karnataka, Vidharba from Maharashtra, Saurashtra in Gujarat, Mithilanchal in Bihar, Mahakhosala in Orissa and Ladakh and Jammu in J&K.
Demands do not implement plans. The 1956 States Reorganization Commission drew detailed plans. A lesser exercise went into the split up of Punjab in 1966 and the North East in 1971. With no role given to the people, their will is eclipsed by demonstrations, slogans and political aggrandizement – with each political party wondering how its electoral chickens will hatch. But, if the will of the people is an un-Gandhian fast unto death, KSR’s 11 day fast is now to be out-matched by 21 Gorkhas launching a hunger strike unto death.
The peoples’ will should be given effect to by a Second States Reorganization Commission (SSRC) 2010 - initially to examine the claims of Telengana, Rayalseema and Andhra. The SSRC 2010 should then examine other claims to statehood – dealing not with legislators but the people, economists, geographers and technical experts. Without overlapping with the Punchi Commission on federalism, the SSRC would concentrate on geographic federalism so that state boundaries are settled by 2015 – after which changes should be by referendum.
The historical demand for Telengana suffers many inexactitudes. In princely Hyderabad, the ‘land of the Telugus’ was distinct. Today Telangana has 10 districts, including Hyderabad, a population of 35 odd million, an area of 114,800 Sq. Kms and the mighty Krishna and Godavari rivers flowing through it. Land locked, it produces 119 out of 294 MLA’s and tips the balance with 17 out of 42 MPs. For political parties, the future will remain a puzzle. This is the probable reason why the Congress is hesitatingly willing to risk the Telengana gamble. The BJP is happy either way. It will criticize Congress if the movement fails and take the credit if Telengana becomes a reality. There is more to creating a state than party politics. Many questions arise: (i) Will the creation of the new state bring peace and a lasting solution for the area? (ii) Will the new state be financially and economically viable? (iii) Will the sharing of resources be equitably worked through? (iv) Will the developmental prospects and peoples’ rights and development be enhanced? (v) Where will State institutions and the capital city be allocated. The Chandigarh solution for Punjab and Haryana remains disputed as a lasting solution. In our context, who will claim Hyderabad? This cannot be worked out by a special session of the state legislature to affirm a Union Parliament Bill which is the only constitutional requirement.
Across the border, Nepal is trying to create a federal system. Its assembly members are concerned that small states may not generate a sufficent Consolidated Fund to pay for minimal infrastructure of a legislature, courts, police and administration. The poorer the state, the greater the need for distribution of federal revenues and grants. When I went to Iraq to discuss federated units with Iraqi legislators, they wanted to know who would control oil revenues. In Canada, oil rich Alberta shares with other provinces by negotiation. Dreams get shattered by an impoverished federal structure unable to meet just demands with federal equity.
India is now committed to a multi-tier federal structure including a panchayat system. At this point, many states are still dealing with issues concerning the representation of dalits, tribals, women and OBC’s rather than the panchayat’s real empowerment and control over development, planning, welfare and resources. Why is this important? The geographic distribution of power does not vouchsafe a real and live democracy. If many federal units induce alienation, despair and disillusionment, it is because even amongst the new units, real power eludes the real people. Koda’s Jharkhand is a classic example of how new states break down into corrupt politics. Eventually, the true test of electoral democracy is local government. If England, Europe and America breed democracy it is because local government is strong, responsive, transparent and participatory. To build new states without assuring resources to and empowering local government is to surrender these states to the zamindari of party politics immersed in the ping-pong swerves of periodic elections.
What direction will the new spate of demands for new states take? The federal reorganization of 1956, 1960 and 1966 was along linguistic lines. The North East (1971, 1975) and the recent new states taken out from Madhya Pradesh, Bihar and UP (2000) sported new cultural identities. Even amongst the linguistic states, Mahrashtra and Punjab display xenophobic truculence in ways that exasperate India’s quest of unity and diversity amidst migratory movements. Even if Nehru’s apprehensions about linguistic states were not well founded, he was right in forewarning the dangers of micro-splitting India without reserve. The message: nothing in haste.
Indian federalism’s geographic boundaries cannot be resolved by fasts unto death, stoning trains, burning buses or bringing all business and traffic to a halt. The Constitution makers (article 3 and 4), created an easy method to create new states without referenda. They did not imagine that such a process would become absurdly facile. The silences of the Constitution were to be filled with wise solutions. Each reorganization has to be thought through as viable, necessary and truly democratic and not just shifting MLA’s from the old state to the new. Carrying ‘Telengana’ further requires skill, patience and a democratic approach to divide resources and empowerments. The answer is a Second States Reorganization Commission to meet all demands so that India’s federal structure is not perpetually in unstable equilibrium. Wisdom must sober the shrill demands of politics. 10 Janpath’s knee jerk solutions cannot define the will of the nation.
Rajeev Dhavan
Eight percent growth does not define India. It is living people who do. For decades, it is poor who have made India proud. Harassed and manipulated, they cling on to their identities of faith, group and culture in ways that both assimilate and divide.
To accommodate regional and historical claims, India evolved flexible boundaries and ideas for its federalism. From 1950-1956, there were class ‘A’, ‘B’ and ‘C’ states. A States Reorganization Committee (1956) abolished this framework to create new States and Territories. After Nehru gave up his resistance, linguistic federalism went further with the creation of Maharashtra, Gujarat (1960), Punjab, Haryana (1966) and Himachal (1971). Cultural and political pressures led to the reorganization of the North East creating Nagaland (1962), Meghalaya, Manipur and Tripura (1972), Mizoram, Arunachal, Goa (1987), Chhatisgarh, Jharkhand and Uttarkhand (2000). Indian federalism is a-symmetrical with special status to Jammu and Kashmir (article 370), and to various other states (article 371A) and the Tribal Areas (Vth and VIth Schedule). Each reorganization has worked well despite the disapproving flutter that India is splitting into unmanageable pieces.
The Constitution accommodatingly allowed geographic restructuring by the Union, requiring no more than the legislature of the affected state to “express its views” (article 3). The people were not involved. There was no referenda. But should Indian federalism be re-written by agitational politics? Is there no limit to redrawing state boundaries? Just because Potti Sriramalu’s fast to death created linguistic Andhra, it does not follow that K. Chandrasekhar Rao’s (KSR) fast should yield a similar shot gun result. Conceding Telengana has triggered off a chain reaction of demands including Rayalseema within Andhra, Bundelkhand, Harit Pradesh and Purvanchal in Uttar Pradesh, Gorkhaland in West Bengal, Bodoland in Assam, Coorg from Karnataka, Vidharba from Maharashtra, Saurashtra in Gujarat, Mithilanchal in Bihar, Mahakhosala in Orissa and Ladakh and Jammu in J&K.
Demands do not implement plans. The 1956 States Reorganization Commission drew detailed plans. A lesser exercise went into the split up of Punjab in 1966 and the North East in 1971. With no role given to the people, their will is eclipsed by demonstrations, slogans and political aggrandizement – with each political party wondering how its electoral chickens will hatch. But, if the will of the people is an un-Gandhian fast unto death, KSR’s 11 day fast is now to be out-matched by 21 Gorkhas launching a hunger strike unto death.
The peoples’ will should be given effect to by a Second States Reorganization Commission (SSRC) 2010 - initially to examine the claims of Telengana, Rayalseema and Andhra. The SSRC 2010 should then examine other claims to statehood – dealing not with legislators but the people, economists, geographers and technical experts. Without overlapping with the Punchi Commission on federalism, the SSRC would concentrate on geographic federalism so that state boundaries are settled by 2015 – after which changes should be by referendum.
The historical demand for Telengana suffers many inexactitudes. In princely Hyderabad, the ‘land of the Telugus’ was distinct. Today Telangana has 10 districts, including Hyderabad, a population of 35 odd million, an area of 114,800 Sq. Kms and the mighty Krishna and Godavari rivers flowing through it. Land locked, it produces 119 out of 294 MLA’s and tips the balance with 17 out of 42 MPs. For political parties, the future will remain a puzzle. This is the probable reason why the Congress is hesitatingly willing to risk the Telengana gamble. The BJP is happy either way. It will criticize Congress if the movement fails and take the credit if Telengana becomes a reality. There is more to creating a state than party politics. Many questions arise: (i) Will the creation of the new state bring peace and a lasting solution for the area? (ii) Will the new state be financially and economically viable? (iii) Will the sharing of resources be equitably worked through? (iv) Will the developmental prospects and peoples’ rights and development be enhanced? (v) Where will State institutions and the capital city be allocated. The Chandigarh solution for Punjab and Haryana remains disputed as a lasting solution. In our context, who will claim Hyderabad? This cannot be worked out by a special session of the state legislature to affirm a Union Parliament Bill which is the only constitutional requirement.
Across the border, Nepal is trying to create a federal system. Its assembly members are concerned that small states may not generate a sufficent Consolidated Fund to pay for minimal infrastructure of a legislature, courts, police and administration. The poorer the state, the greater the need for distribution of federal revenues and grants. When I went to Iraq to discuss federated units with Iraqi legislators, they wanted to know who would control oil revenues. In Canada, oil rich Alberta shares with other provinces by negotiation. Dreams get shattered by an impoverished federal structure unable to meet just demands with federal equity.
India is now committed to a multi-tier federal structure including a panchayat system. At this point, many states are still dealing with issues concerning the representation of dalits, tribals, women and OBC’s rather than the panchayat’s real empowerment and control over development, planning, welfare and resources. Why is this important? The geographic distribution of power does not vouchsafe a real and live democracy. If many federal units induce alienation, despair and disillusionment, it is because even amongst the new units, real power eludes the real people. Koda’s Jharkhand is a classic example of how new states break down into corrupt politics. Eventually, the true test of electoral democracy is local government. If England, Europe and America breed democracy it is because local government is strong, responsive, transparent and participatory. To build new states without assuring resources to and empowering local government is to surrender these states to the zamindari of party politics immersed in the ping-pong swerves of periodic elections.
What direction will the new spate of demands for new states take? The federal reorganization of 1956, 1960 and 1966 was along linguistic lines. The North East (1971, 1975) and the recent new states taken out from Madhya Pradesh, Bihar and UP (2000) sported new cultural identities. Even amongst the linguistic states, Mahrashtra and Punjab display xenophobic truculence in ways that exasperate India’s quest of unity and diversity amidst migratory movements. Even if Nehru’s apprehensions about linguistic states were not well founded, he was right in forewarning the dangers of micro-splitting India without reserve. The message: nothing in haste.
Indian federalism’s geographic boundaries cannot be resolved by fasts unto death, stoning trains, burning buses or bringing all business and traffic to a halt. The Constitution makers (article 3 and 4), created an easy method to create new states without referenda. They did not imagine that such a process would become absurdly facile. The silences of the Constitution were to be filled with wise solutions. Each reorganization has to be thought through as viable, necessary and truly democratic and not just shifting MLA’s from the old state to the new. Carrying ‘Telengana’ further requires skill, patience and a democratic approach to divide resources and empowerments. The answer is a Second States Reorganization Commission to meet all demands so that India’s federal structure is not perpetually in unstable equilibrium. Wisdom must sober the shrill demands of politics. 10 Janpath’s knee jerk solutions cannot define the will of the nation.
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