Are courts and media substitutes for governance? AHRC poser

Can courts and media be substitutes for governance? The Asian Human Rights Commission raises this question in the context of the Kerala government's response to its communications regarding human rights violations in the State. Below is the text of the statement issued by the Commission on October 26, 2007:

ON OCTOBER 22, 2007 the Asian Human Rights Commission received a communication from the government of Kerala in India. The communication, in the form of a letter, dated September 9, 2007 prepared on behalf of the Additional Chief Secretary to the government informs the AHRC that if the AHRC is concerned about incidents of custodial deaths in Kerala, the AHRC must approach the human rights commissions in the country or the courts or the media and NOT the government or any of its departments, particularly the Home Department.

While the letter triggers a series of questions regarding governance, of particular interest is the role of the Home Department and the local police this department controls and allegedly govern. The Home Department is an important government agency that is primarily responsible for law and order within its jurisdiction. In the initial communication from the AHRC to the state government, written in October, 2006, the AHRC urged the government to take appropriate steps to address the issue of custodial violence committed by the local police. The AHRC also urged the government to initiate enquiries into reported cases of custodial deaths from the state.

The extent to which violence is used as part of crime control and case investigation is no news to anyone who is familiar with policing in India. Policing in Kerala is not different. The performance and temperament of the Kerala State Police is not different from the police elsewhere in India. In most cases, if a crime is registered, investigation begins with the arrest and detention of a suspect. What then follow are confessions leading to recovery and charge-sheeting. It would be naïve to believe that a large proportion of persons arrested of being accused of charges easily confess their crime. It would be equally naïve to agree that any person who dies in police custody died from cardiac arrest, since it is often the excuse the Kerala State Police poses when a person die in custody.

Custodial torture and violence are the brutal means often adopted by the police in India for investigating crimes and maintaining law and order. Fear and aversion are the two most common feelings the general public express about their police in India. Who is responsible for this? It would be unfair to blame the police in isolation.

Custodial violence is an external manifestation of a failing institution -- the police department. The lack of a clear political determination to rule out the possibilities of custodial violence perpetuates the use of uncontrolled violence by the law enforcement agencies. For instance, there is no specific law in India that prohibits custodial violence. Sceptics may tend to argue that with the provisions in the Indian Penal Code, 1860 and the procedures laid out in the Criminal Procedure Code, 1973 are adequate enough to prevent custodial violence in India. But what is missing in this argument is the gravity of the offence.

A crime committed by a police officer upon a person under his custody is more serious than a crime committed by a local criminal. This is why the crime of torture as of today has the status of ius cogens in international law. Unfortunately in India custodial violence is just another crime, which takes the regular course of investigation and trial. In most cases these trials result in an acquittal.

The Home Ministry of the state is directly accountable for the law and order in the state in addition to the police force. Law and order and rule of law are directly related. Proper maintenance of law and order is one of the foundation stones for establishing rule of law in a country. Rule of law in simple terms means that no one is above the law. Catalysts like trade and commerce has resulted in evolving new sequencings for establishing rule of law. Yet, what Samuel Rutherford said in Lex Rex in 1644 and a century later Montesquieu in Spirit of Laws in 1748, the fundamental principle of what rule of law is has not changed.

What was said centuries ago are now sought to be perfected by several states across the globe. In fact rule of law has become the backbone of economies in some countries. One example is Hong Kong. Even though there is great scope for improvement like the concept of full democratic governance as a separate entity within China, the administration in Hong Kong has achieved enough to be proud to advertise the territory's potential for investment by showcasing its rather impeccable record of rule of law. A postal stamp released earlier this year says exactly this. The stamp displays a caricature of the Hong Kong skyline with 'Rule of Law' printed on the skirting.

The AHRC wonders how many other Asian countries can be honest and bold enough to advertise their country, pitching rule of law as one of the key factors to attract business. Unfortunately most Asian countries cannot, since they are institutional wastelands as far as rule of law is concerned.

What the governments in India have failed repeatedly is to establish the minimum guarantee of rule of law, while the country is allegedly marching towards economic progress. An economy without the basic guarantees of rule of law can never be stable. In this context it is imperative to look into what is lacking in India. The country has one of the best constitutions in the world, is home to some of the best jurists and legal professionals and also has a governance mechanism. But this all in theory. In reality India is a far cry from what it ought to be. Somehow the democratic institutions in India have failed to make their 'real' contact with the people. Casting a vote once in a while and having some courts and other similar semi-functional institutions is not what democracy or rule of law really means.

In this context, policing has a major role to play in India. Courts, human rights commissions and the media are not substitute mechanisms for what policing must be. While courts and commissions are dispute redressal forums, the media serves the purpose of being the public's eye and ear. None of them can be expected to replace the police. The question is what if the policing itself is bad? Even though the presence of these institutions serves the purpose of a deterrent, that role is limited. The very purpose of having a Home Department is to monitor the functioning of the police and to lay down rules and procedures for policing and also to define the norms required to maintain discipline in the force.

Widespread use of custodial violence is an indicator that the Home Department is ignoring this role, intentionally. The letter issued by an officer as senior as the Additional Chief Secretary to the government is a proof to this. The courts in India and other para-legal mechanisms have tried to address this issue in part. The judgment of the Indian Supreme Court in the Prakash Singh v. Union of India delivered in 2006 is just one example.

In this case the Supreme Court of India has asked the state governments to come up with effective policies and even legislations to regulate policing in their respective jurisdictions, including but not limited to maintaining internal discipline and procedures to be put in place for the police to strictly adherence to the law of the land. The guideline in the judgment also to a large extent is expected to reduce one of the worst curses of policing in India – political interference. The AHRC believes that it is the duty of the Home Department in each state, among other duties, to advice their respective ministries how the judgment of the court could be effectively implemented. The communication received by the AHRC however does not reflect this attitude.

The Home Department is literally ruled by a Minister – the Home Minister – advised by a team of bureaucrats who might not be directly involved with policing. The implementing agency of the decisions made by the Home Department however is the police. What the AHRC, like any other human rights organisation did, was to urge the state government and the concerned departments to discharge their duty and in the process to help the police in correcting itself.

The response by the state government of Kerala to the AHRC is not only condemnable, but also exposes the neglect and contempt with which the department views their execution wing - the local police. If not for human rights organisations like the AHRC, at least the local police themselves must be concerned about why their bureaucratic counterparts in the government neglect them to an extent that the local police is taken for nothing more than a joke.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Attorneys expose US administration's claims about prisoner abuse

“Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond” by Jameel Jaffer and Amrit Singh, Staff Attorneys working with the American Civil Libertises Union, exposes the Bush administration’s record of torture of prisoners in the Unites States’ overseas detention centres.

The book, published by the Columbia University Press on September 18, 2007, is based on documents obtained by ACLU under the Freedom of Information Act. When the US media provided photographic evidence of the Abu Ghraib brutalities, the administration claimed that abuses were isolated incidents and promised to bring the perpetrators to book. Action was initiated against some soldiers, but the administration maintained that they were sadists who acted on their own ignoring orders.

This book demolishes the administration’s attempt to distance itself from the human rights violations. It shows that abuse of prisoners was pervasive in US detention facilities in Iraq, Afghanistan and Guantanamo Bay, besides Abu Ghraib. What’s more, senior officials endorsed the abuse of prisoners as a matter of policy.

Jameel Jaffer is director of ACLU’s National Security Program. Amrit Singh, who is attached to ACLU’s Immigrants’ Rights Project, is the youngest daughter of Prime Minister Manmohan Singh. She graduated from Yale Law School in 2001.

Narendra Modi's role in 2002 Gujarat riots: Tehelka expose

AN INVESTIGATIVE STORY by Tehelka weekly magazine, which throws light on Chief Minister Narendra Modi’s role in the Gujarat riots of 2002, was telecast by Headlines Today and Aaj Tak channels tonight (October 25, 2007).

The story, based on several months of painstaking investigation, appears in print in a 108-page special issue of Tehelka, which hits the stands tomorrow morning.

It is already available at Tehelka's English and Hindi websites.

Freeze of States' seats in Lok Sabha into next century mooted

WILL the Lok Sabha be truly representative of the people of India in the 22nd century? Or will we have sacrificed the principle of allocating seats among the States on the basis of population by then to protect the gains on the population front?

Kerala now has an estimated population of 33 million. If birth and death rates remain unchanged, by 2101 the State’s population will shrink to 28 million, according to a recent population forecast, says Dr. M. Vijayanunni, a former IAS officer, who had served as India’s Registrar General and Census Commissioner, in an article in the Malayalam daily Kerala Kaumudi.

By then, he adds, India’s population, which was 1.03 billion in 2001, would have shot up to 2.18 billion. Tamil Nadu will be the only other State to have registered a population decline – from 62 million in 2001 to 58 million. The population of the northern States would have increased considerably: by 323% in Bihar, 298% in Rajasthan, 289% in Uttar Pradesh, 242% in Madhya Pradesh and 239% in Delhi. Together these five States will have as many people as there are in the whole of India today.

Dr. Vijayanunni points out that if the Lok Sabha’s composition is readjusted on the basis of population, the ten Hindi States’ share will go up from 226 seats to 321 and the non-Hindi States’ will go down from 317 to 222. Kerala’s representation will decline from 20 to seven. In the circumstances, he says, it may become necessary to continue the Constitutional amendment that freezes States’ representation in the Lok Sabha on the basis of the 1971 Census.

Originally, Article 82 of the Constitution provided that, upon the completion of each census, allocation of seats in the Lok Sabha to the States and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine. In keeping with this provision, the Centre appointed a Delimitation Commission after the 1951, 1961 and 1971 Census operations.

In 1976, Parliament, by a constitutional amendment, put the delimitation process in abeyance until the first census after 2000. This was done to protect the interests of States like Kerala, which were making strenuous efforts to control the growth of population.

When the time came for delimitation on the basis of the 2001 Census figures, Parliament made two more amendments to the Constitution. The cumulative effect of these amendments is that there will be fresh delimitation but seat allocation to the States will still be on the basis of the 1971 Census until the first census after the year 2026.

Thus there is already a national commitment to retain the present pattern of distribution of Lok Sabha seats until after the 2031 Census. Its continuance into the next century means virtual abandonment of the principle of representation on the basis of population.

Thinking of studying in the UK? Bobby Aloysius is ready to help you

WELL-KNOWN Kerala sportswoman Bobby Aloysius has set up a website www.ukstudyadvice.com to help those wishing to study in the United Kingdom.

Bobby Aloysius is an Asian Games medallist, Olympian, and South Asian record holder in high jump. She has been in the UK since 2003 for training and studies. In the absence of anyone to offer proper advice, she had to fend for herself. This experience has prompted her to offer her services to others who may want to go to the UK for studies.

Says Bobby: “I guess I have been through it all – the hope and angst, the advantages and hurdles, and the problems and practical solutions to them. I wanted to throw some light on to the paths I learnt with struggle; so as to help students from India have better luck with their UK study dreams. That is how this website came into being.” Over to the website.

Can human rights be given up to promote trade?

Can human rights be given up to promote trade? This pertinent question has been raised by the Asian Legal Resources Centre, Hong Kong, in a statement issued on October 12, 2007. It has raised the question in the context of a proposed European Union-India bilateral trade and investment agreement.

ALRC is an NGO having General Consultative status with the Economic and Social Council of the United Nations. It was founded in 1986 by a prominent group of jurists and human rights activists in Asia. It is a body committed to the development of legal self-reliance and empowerment of people.

Follow the link to access the ALRC statement on the subject.

Protection of foreign, imperial interests in the name of people’s interests

BANK employees are agitating against the move to merge the State Bank of Travancore and other associate banks in the State Bank of India. Kerala’s Finance Minister, Dr. T. M. Thomas Isaac has extended support to SBT employees. The employees oppose merger because they fear job loss. The reason given by Dr. Thomas Isaac is that merger is against Kerala’s interests. When several Kerala-based banks changed hands neither he nor his party had done nothing to stop it. As an economist, he certainly must know that SBT’s merger is a step that the present situation demands.

I am personally deeply indebted to the All India Bank Employees’ Association, which spearheads the anti-merger campaign. Its leader, the late H. L. Parvana, headed several organizations of newspaper employees too.
In 1973, at his instance, bank employees had staged a vigorous lunch-hour demonstration in pouring rain outside the headquarters of United News of India in New Delhi. It enormously boosted the morale of the members of the weak UNI Employees Union and helped me save my job. While I remain grateful to AIBEA for its fraternal gesture, I am unable to support its present campaign because I believe larger national interests demand the contemplated merger.

At one time I did believe that SBT must be freed from SBI and allowed to develop independently. SBI, India’s largest bank, was putting its officers at the helm of SBT and holding it like a colony. Kerala has a vibrant banking tradition, and I felt SBT could grow fast if it was cut loose from SBI. But the situation has changed. The new situation calls for a new approach.

Globalization has drastically altered the banking scenario. The change it has wrought within the country is reflected in the big strides made by the ‘new generation’ banks. The change it has wrought outside the country is even more spectacular. There is now such intense competition that only big institutions can hold their ground.

Last year, the world’s top 10 banks included three each from the United States and Japan, two from Britain and one each from France and Spain. Japan, which was laid bare by World War II, was able to find a place beside the imperial powers of the past and the present by virtue of its enormous post-war growth. Now China and India are on the fast track. Banks play a big role in facilitating economic growth. While China is leaping ahead in banking through planned measures, India still lags behind. When the Communist Party of China took control of the mainland, the Bank of China was constructing a new office building in Hong Kong. The Communist rulers altered the building plan to make the structure taller than that of the Hongkong and Shanghai Banking Corporation. It was widely seen as a proclamation of supremacy.

The list of the world’s top 1,000 banks, prepared by The Banker, a publication of Financial Times, London, this year, contains 31 from China and 27 from India. While in numbers India is not far behind China, the situation is not such as can make the country proud. Although India accounts for 18% of the world’s population and two percent of the world’s Gross Domestic Product, it has only two banks in the list of Asia’s top 25 banks. As The Banker points out, they are small in comparison with the big Asian banks. The only Indian bank in that list, besides SBI, is the ICICI Bank. This private bank, established in 1994, is less than half the size of SBI, but it has already left behind the 14 banks which were nationalized nearly 40 years ago. Public sector bank employees must find out how and why this happened. They must also look outside India. They will then see mega banks coming up there.

Four years ago, Mizuho Financial Group was Japan’s largest banking institution. When Mitsubishi Tokyo Financial Group, which was in the second place, and UFJ Holdings, which was in the fourth place, came together in 2004 to form Mitsubishi UFJ Financial, it became the bank with the most assets not only in Japan but anywhere in the world. It could not retain that position for long as bigger giants arrived. Now it is in the third or fourth place.

Seven years ago, Bank of China was the only Chinese bank in Asia’s Top 10. The other nine were all Japanese banks. This year there are two Chinese banks in the world’s – not Asia’s -- top 10. The Industrial and Commercial Bank of China (ICBC) is in the seventh place and Bank of China in the ninth. Two other Chinese banks are close behind the top ten: the China Construction Bank (CBC) and the Agricultural Bank of China (ABC). SBI is in the 72nd place.

Here is the information that The Banker provides about Tier 1 capital of top Chinese and Indian banks:

ICBC $59.2 billion
Bank of China $52.5 billion
CCB $42.3 billion
ABC (yet to have balance sheet makeover and IPO)

SBI $9.98 billion
ICICI $4.29 billion

Compared to China’s big banks, SBI and ICICI are midgets. No other Indian bank merits consideration even as a midget. China’s Big Four began growing through fresh capital infusion after the rulers decided that they should become major global players. In the process, they are getting privatized. Foreigners, too, can acquire shares in them. On August 29, two banking experts briefed the members of the Communist Party Politburo on the significance of banking reform. President Hu Jintao said later that there would be more steps to modernize the banking sector.

The decision to merge the associate banks in SBI is part of the effort to raise its ability to compete in the global arena. To attain this goal, other steps like infusion of more capital and enhancement of efficiency are also necessary. Besides SBI, some other nationalized banks, too, needs to be strengthened through measures like merger and expansion of capital base. While this is done, it is quite possible that some of the consequences that the employees fear may ensue. They have the right to use their organizational strength to ward them off. But they must not stand in the way of the changes that national interests demand. Those who cry hoarse about the danger of imperialism subjugating the country must remember that when they oppose the growth of banking institutions they are serving foreign, imperial interests, not people’s interests.
Based on piece published in “Nerkkazhcha” column of Kerala Kaumudi dated October 5, 2007