A ghost that refuses to go away

BRP Bhaskae
Gulf Todayhttp://gulftoday.ae/portal/838cf8e2-ab6a-40f0-bfbd-42b9fd087e6c.aspx

The Supreme Court last week rebuffed a belated attempt by the Central Bureau of Investigation to breathe new life into the three-decade-old Bofors scandal.

The scandal broke in 1987 when a Swedish radio reported that arms maker AB Bofors had bribed Indian politicians and officials to get the Rs 14.37 billion contract for the supply of 35 mm field guns the previous year. It had cast a shadow over Prime Minister Rajiv Gandhi’s Mr Clean image.

The government conceded the Opposition’s demand for a parliamentary probe. The joint parliamentary committee in which the ruling Congress had a majority cleared the Prime Minister’s name but an Opposition member appended a strong dissenting report.

A sustained Opposition campaign built around the scandal did immense damage to Rajiv Gandhi and to his party. When a little boy, participating in a children’s programme broadcast live from an All India Radio station, was asked to sing a song he broke into a ditty in Hindi which ran like this: “In every lane, they are screaming Rajiv Gandhi is a thief!” 

The names of some friends of Rajiv Gandhi cropped up in media speculation on the middlemen who got the kickback but there was no material with which to pin anything on them.   

Later Indian mediapersons, following up the Swedish radio report, obtained documents which helped track the flow of funds from Bofors to suspected beneficiaries.  They won laurels for their labours but the material they unearthed was not sufficient to drag anyone to court.

The government had claimed that no Indian or foreign middlemen were involved in the deal. This turned out to be untrue.

Win Chadda, who had worked earlier for Bofors and some other arms manufacturers, was apparently involved in this deal too.

Bofors documents showed that in the closing stages of the negotiations, a London-based company AE Services Ltd suddenly entered the picture. It was not clear what role it played but Bofors rewarded it handsomely.

The money paid to AE Services travelled swiftly through several bank accounts before disappearing without leaving a trace.

The identities of those behind AE Services were never established but media reports linked it to Ottavio Quattrocchi, an Italian who came to India as a representative of Snam Pragotti, a fertiliser firm, and became a family friend of Rajiv Gandhi and his Italian-born wife Sonia.

Presuming that the kickback may have gone to Sonia Gandhi’s parents, a Delhi newspaper sent a reporter to Italy. Its hopes of finding signs of her parents living in opulence did not materialise. It found them living middle class lives.

The Bofors scandal played a part in the Congress party’s defeat in the Lok Sabha elections of 1989. A coalition government headed by VP Singh and supported from outside by the Bharatiya Janata Party and the Communist Party of India (Marxist) took office.

Singh, who was Defence Minister in Rajiv Gandhi’s government, had fallen out with him over a probe into kickbacks in the purchase of submarines from Germany. In his time, the CBI registered a complaint on the Bofors payoffs but the agency could make little headway in the investigation.

On a plea by one of the persons named in the complaint the Delhi High Court quashed it. However, the Supreme Court overruled the decision and restored the complaint.  

In 1997 after Swiss authorities furnished some secret documents relating to bank accounts of suspected Bofors payoff beneficiaries the CBI constituted a special investigative term for the probe.

While the investigations were on, Rajiv Gandhi was killed by a suicide bomber sent by the Sri Lankan outfit, Liberation Tigers of Tamil Eelam, and a few other accused died of natural causes.

The CBI’s sporadic efforts collapsed when the Delhi High Court quashed the charges against Rajiv Gandhi in 2004 and acquitted all the other accused the following year.

The agency’s readiness to act in the interests of the government of the day in politically sensitive matters is well-known. But, then, even during the six years under BJP Prime Minister AB Vajpayee it could not conduct a successful prosecution.

The High Court verdict came early in the first term of Prime Minister Manmohan Singh. However, the CBI appealed to the Supreme Court only this year at the instance of the Modi government, against the advice of Attorney General KK Venugopal.

The Supreme Court’s rejection of the appeal does not mean the ghost of Bofors has been finally laid to rest. The apex court still has before it a partly-heard appeal filed by Anil Agarwal, a BJP leader. --Gulf Today, Sharjah, November 6, 2016.

Court clips parrot’s wings

BRP Bhaskar
Gulf Today

The Supreme Court of India, acting with great finesse, last week clipped the wings of the Central Bureau of Investigation’s interim head whom the Narendra Modi government had installed in office in a midnight operation after sending the agency’s topmost officers on forced leave.

The CBI, established in 1963, had established an early reputation for professionalism by solving some sensational crimes the state police could not unravel.

Its stock fell later as political meddling dented its professionalism. Five years ago, a Supreme Court judge, exasperated by its submissiveness towards political masters, dubbed it “a caged parrot”.

To enable the CBI to function fearlessly the court stipulated that its Director must have an assured tenure of two years.

Under the law the Director is appointed on the recommendation of a selection committee comprising the Prime Minister, the leader of the largest opposition party in the Lok Sabha and the Chief Justice of India or a judge nominated by him. The Chief Vigilance Commissioner supervises the agency’s work

On becoming the Prime Minister in 2014, Narendra Modi brought Rakesh Asthana, an officer of the Gujarat cadre who was a favourite of his when he was the state’s chief minister, into the CBI and manoeuvred to pitchfork him into a key position.

In 2016, before Anil Sinha’s retirement as Director, his deputy was moved out as Special Secretary in the Home Ministry and Asthana appointed interim head although he lacked the seniority to be considered for the Director’s post.

The three-man committee picked Alok Kumat Verma for the job . Modi then promoted Asthana, who was Additional Director, as Special Director, and started dealing with him, bypassing Verma when he deemed it necessary.

There were now two centres of power in the agency and inevitably there was feud at the top. The first indication of a rot came last month when the CBI stated that Asthana had made a malicious complaint against Verma to the Chief Vigilance Commissioner.

It came to light last week that the Cabinet Secretary also wrote to the CVC. It is not clear whether both made the same allegations againt Verma. 

Matters came to a head when the CBI filed a first information report in a court alleging Asthana had taken a bribe of Rs 30 million for favouring a meat exporter whose activities were under investigation.

It said an extortion racket was operating in the agency under cover of investigation.

Early this month, Prashant Bhushan, a prominent activist-lawyer, and Arun Shourie, a former leader of Modi’s Bharatiya Janata Party, submitted to Verma a memorandum seeking a proble into the alleged scam relating to the Rafale jet fighter deal. Modi, during an official visit to Paris, had re-negotiated the deal to drop the state-owned Hindustan Aeronautics Ltd and bring in a newly formed Anil Ambani firm as the French arms makers’ Indian partner.

Later there were reports that Verma had called for papers relating to the deal from the Defence Ministry.

When the CBI arrested an officer working under Asthana for allegedly forging documents to implicate Verma, and Asthana’s arrest appeared imminent, Modi called both of them to his office. He could not bring about a rapprochement between the two. Then came the midnight operation.

The Cabinet’s appointments committee sent both Verma and Asthana on leave and appointed M. Nageswar Rao as Interim Director, on the CVC’s recommendations. The whole process, including takeover by Rao, was completed at the dead of night, evidently to prevent Verma securing a court order to maintain status quo.

The CVC’s report states that its recommendations are based on the complaint received from the Cabinet Secretary in July. It offers no explanation for the long delay in initiating preliminary action on the complaint. It makes no mention of Asthana’s complaint against Verma.

Both Verma and Asthana approached the Supreme Court with pleas to quash the actions against them. It, however, took up immediately only Verma’s petition, which alleged political interference in some extremely sensitive matters which were before the CBI and accused Asthna of stymieing certain investigations.

Faced with a fait accompli and needing time to hear all the parties and comie to conclusions, he court ordered interim measures designed primarily to limit the scope for mischief under the interim set=up.

It asked Nageswar Rao not to take any policy decisions. It also told him to provide it in a sealed cover all decisions taken by him after taking over as Interim Director.

The court directed the CVC, who is looking into the complaint against Verma, to complete the inquiry within two weeks under the supervision of retired Supreme Court judge AK Patnaik.

The final outcome of the Supreme Court proceedings in this case will have a bearing on the issue of political control over investigative agencies.-- Gulf Today, October 30, 2018

Political battle on the hill

BRP Bhaskar

Gulf Today

The small Sabarimala hill shrine in Kerala, which attracts about 20 million devotees annually, received worldwide media attention last week as a few young women joined the pilgrimage and goons, donning the role of protectors of tradition, blocked them.

The women were exercising their right to visit the temple, upheld by the Supreme Court in a recent judgment. Orthodox elements, led by erstwhile caste supremacists, oppose the judgment, claiming a long-standing tradition bars women of menstruating age from the shrine as the deity is an eternal celibate.

Four of the five judges on the Supreme Court bench declared the ban violated the Constitutional guarantee of equality of sexes. Ironically, the lone woman judge dissented, viewing the issue as one of religious practice in which the court should not interfere.

Discrimination against women at places of worship is not entirely a new issue. Shrines of different faiths which barred women have ended the practice recently following public pressure and court orders.

The trustees of the Haji Ali Dargah in Mumbai threw open its sanctum sanctorum to women two years ago. The Shani Shingnapur temple in Maharashtra’s Ahmednagar district lifted the ban on women last year.

The Sabarimala deity is referred to variously as Ayyappa and Dharma Shastha, both of which are names used to denote the Buddha. It is believed to be a part of the large Buddhist centre in the Western Ghats to which Chinese pilgrim Xuanzang (Huan Tsang, in earlier renderings) refers in his seventh century travel accounts.

A 1931 official document of the erstwhile princely state of Travancore mentions that all Shastha temples, including the one at Sabarimala, were originally Buddhist shrines. 

The current tussle between pro-form and anti-reform groups over Sabarimala is not so much a battle over religious practice as one for supremacy by political parties with an eye to next year’s Lok Sabha polls. The Bharatiya Janata Party, which now heads the Central government, has not won a single Lok Sabha seat from Kerala so far. Even an Assmbly seat had eluded it until 2016. 

The BJP was unable to make headway in the state as its Hindutva ideology is widely seen as one that runs counter to the secular ethos of the renaissance movement which swept Kerala in the late 19th and early 20th century.

Muslim and Christian minorities account for about 45 per cent of the state’s population. The comparatively low proportion of Hindus in the population has also limited the BJP’s growth.

The Rashtriya Swayamsevak Sangh, the BJP’s ideological parent, has said it is not against women’s entry into temples. It modified its position last week to allow the BJP’s state unit to spearhead the agitation against the Supreme Court verdict.

In the last four decades, two alliances, the United Democratic Front led by the Congress and the Left Democratic Front led by the Communist Party of India (Marxist), have alternated in power in the state.

During the 12 years the Sabarimala issue was before the Supreme Court UDF and LDF governments filed contradictory affidavits, the former opposing women’s entry and the latter favouring it. Both the UDF and the LDF have found it necessary to mollify the faithful to safeguard their electoral interests.

Congress President Rahul Gandhi, who welcomed the Supreme Court judgment, has allowed his party’s Kerala unit to sing a different tune. While Chief Minister Pinarayi Vijayan has affirmed the LDF government’s commitment to implement the court verdict, CPI(M) State Secretary Kodiyeri Balakrishnan has made nuanced comments to pacify those protesting against it.

The President of the Devaswam Board, who is a CPI(M) leader, has been flip-flopping in a bid to please both sides. Since last year the BJP was trying, with little success, to whip up a national campaign against the LDF government with focus on the recurrent clashes between the RSS and the CPI(M) in the Kannur district, which has claimed many lives. It views the Sabarimala issue as one which can bring all Hindus together and propel it forward.

The temple is located three to five hours of trek away from the nearest road. Goons mobilised by Hindutva elements are camping along the route to prevent women, including media persons covering Sabarimala developments, from reaching the temple. 

The Central government has asked the state to provide women pilgrims a safe passage. However, eager to avoid a major law-and-order incident, the state police has been playing it safe. It provides security to women devotees on the trek but dissuades them from entering the shrine.

Various steps taken by both the Congress and the CPI(M) in the last few decades to appease caste and religious vote banks have eroded the renaissance spirit considerably. It is, however, not clear to what extent this will benefit the BJP. --Gulf Today, Sharjah, October 23, 2018.

Mixed signals from court

BRP Bhaskar

Gulf Today

India’s powerful Supreme Court, which, generally speaking, has been conservative on social issues, confounded orthodox elements recently with a series of landmark judgments.

Last month it decriminalised adultery and gay sex, which were punishable under the Indian Penal Code, introduced by the British colonial administration a century and a half ago.

Human rights groups, especially those voicing the demands of sexual minorities, had been seeking changes in the law for some time. Public opinion on the issue was not strong enough to compel the government to accept the demand and change the law.

When the matter was brought before it, in a break with the past, the Supreme Court took a liberal view in the light of the personal freedoms which the Constitution guarantees to all citizens. In effect, the recent judgments have taken the Indian legal system out of the confines of Victorian morality in which the British had set it.

Last year the Court, by a 3-2 verdict, declared instant triple talaq unlawful. While two judges said it was inconsistent with the Constitution, a third judge struck it down on the ground that it was against the Sharia and the basic tenets of the Koran. Last week the court, rejecting the arguments of a section of Hindu orthodoxy, overturned a supposedly traditional practice of barring women of the 10-50 age group from trekking to the Sabarimala shrine nestling in the Western Ghats.

Chief Justice Dipak Misra, who delivered the main judgment, said the bar was a clear violation of Hindu women’s right to practice religion. Interestingly, the lone woman on the five-member Constitution Bench, in a dissenting judgment said the question was one of faith and the court could not go into it.

The Preamble of the Constitution, which outlines its objectives, grants primacy to “justice — social, economic and political”. As the sole authority for its interpretation, the Judiciary is the ultimate arbiter of what is constitutional and what is not.

Initially, the higher courts took care not to upset powerful elements. When a petitioner belonging to a so-called upper caste approached them claiming she could not get admission in a medical college because of the reservations favouring backward communities and arguing that the reservation system was against the principle of equality enshrined in it, they readily accepted it.

To get over the courts’ objections, Parliament amended the Constitution and added a proviso that permitted special provisions for socially and educationally backward classes of people. The Supreme Court upheld the amendment.

Later on the Judiciary moved forward to ensure political justice by coming down on authoritarian acts of the Executive. There was a setback when Indira Gandhi’s government declared an Emergency and the apex court upheld its contention that it could suspend all fundamental rights, including the right to life.

On economic justice, the court inevitably lagged behind as the expensive legal process is weighted in favour of the rich and casts a disadvantage on the poor.

If the recent Supreme Court judgments on social issues have warmed the hearts of the liberals, some decisions with a bearing on civil and political rights have disappointed them. As they say, you win some, you lose some.

Last year a nine-member Constitution Bench declared right to privacy a fundamental right. This led to hopes that it would rule that the Aadhar card project, under which the government has gathered a good deal of personal data about citizens, unconstitutional. But it only provided partial relief.

The Aadhar project was initiated by the previous United Progressive Alliance government. At that time the Bharatiya Janata Party opposed it and Narendra Modi unleashed a Twitter campaign against it. On becoming Prime Minister he enlarged its scope and compelled linking of Aadhar numbers with bank accounts, mobile phone numbers etc.

The court stopped linking of Aadhar with bank accounts and mobile numbers but did not interfere with the scheme itself.

The Court made a quick intervention and denied the Maharashtra police custody of five reputed social activists it had arrested in a multi-state swoop in late August and ordered to keep them in their own houses. Since then it has been granting piecemeal extension of their house arrest, without going into the points raised in the petition challenging the arrests, betraying Hamletian indecisiveness.

On Friday, Chief Justice Dipak Misra and Justice AM Khanwilkar allowed the Maharashtra police to go ahead with the investigation while Justice YV Chandrachud, in a dissenting judgment, virtually accused it of trying to muzzle dissent. There has been speculation that the majority judgment was a last-minute development. --Gulf Today, October 2, 2018. 

Towards cleaner politics

BRP Bhaskar
Gulf Today

India’s Supreme Court last week enlarged the scope of the legal framework, much of it designed by itself, to reduce the scope for political corruption. 

Money power and muscle power have been identified since long as the bane of electoral politics in this country, which, by virtue of its population, is the world’s largest democracy.

The Representation of the People Act, enacted in 1951, ahead of the first general elections, provides that persons convicted of certain charges, including corruption, will incur certain disqualifications. The law has undergone some revision since it was first enacted but undesirable persons continue to be elected. 

In 1999, the Association for Democratic Reforms (ADR), set up by a group of professors of the Indian Institute of Management, Ahmedabad, initiated public interest litigation which resulted in a Supreme Court judgment directing all candidates to file affidavits disclosing information relating to their educational qualifications, involvement in criminal cases, if any, and the family’s assets. 

Since then all candidates have been filing affidavits on the lines mentioned by the court and the authorities have been promptly posting them on the web. But there has been no improvement in the quality of the elected representatives. On the comtrary, there are indications of deterioration.

After analysing the affidavits filed by those elected in the last three elections, the ADR reported that the number of Lok Sabha members with criminal cases had gone up from 24 per cent in 2004 to 30 per cent in 2009 and to 34 per cent in 2014. 

Over one-third of the 282 members of Prime Minister Narendra Modi’s Bharatiya Janata Party were accused in criminal cases when the party picked them to contest the elections, and over one-fifth were facing serious charges. Of the 18 members of BJP ally Shiv Sena 15 were involved in criminal cases.

All four members of the opposition Rashtriya Janata Dal and four of the five of the Nationalist Congress Party were facing criminal charges. Congress MPs had a comparatively low criminal record: 18 per cent were involved in cases, and those facing serious charges were only seven per cent. 

Another ADR report said comparison of affidavits showed that the assets of 165 MPs who won re-election in 2014 had risen, on an average, by 137 per cent in their previous term. 

In 2013, The Supreme Court, modifying a disqualification clause, ruled that a member of Parliament or of a state legislature will lose his seat immediately if convicted and sentenced to a jail term of two years or more.

Parliament had earlier provided for keeping disqualification in abeyance until the member exhausted the avenues of appeal. The Manmohan Singh government planned to enact legislation to nullify the court verdict but dropped it as Rahul Gandhi was against it.

On Friday the apex court ruled that a member of Parliament or of a State legislature will lose his seat if found to be in possession of assets disproportionate to his known sources of income. It wanted the candidates’ affidavits to include the assets of their dependents, besides those of the spouses.

“If assets of a legislator and his/her associates (spouses and dependents) increase without bearing and relationship to their known sources of income, the only logical inference that can be drawn is that there is some abuse of the legislator’s constitutional office,” it said. 

The court passed the order on a petition filed by Lok Prahari, a non-governmental organisation. It had alleged there has been an increase in the assets of 26 members of the Lok Sabha, 11 of the Rajya Sabha and 257 of state legislatures. 

The Central Board of Direct Taxes, which scrutinised the affidavits of some of the elected members, informed the court that there were discrepancies in the statements of seven Lok Sabha members and 98 MLAs. There was prima facie evidence of huge increase in their assets and the matter needed to be probed further.

While the measures devised by the court may help to remove some corrupt elements, they do not offer a solution to political corruption, which is a systemic problem. When Lalu Prasad in Bihar and Jayalalithaa in Tamil Nadu were forced to step down they retained their hold on the administration through handpicked chief ministers. While Jayalalithaa chose a trusted colleague to hold the fort for her, Lalu Prasad’s choice was his wife, Rabri Devi. She came to office with no political experience and served as chief minister for six and a half years. 

The public have evinced little interest in verifying claims made by candidates in affidavits. Modi and his Cabinet colleague Smriti Irani have dodged efforts to check their educational qualifications. 

There can be no clean politics while elections are an expensive affair and the voters are not ready to take a close look at the antecedents of candidates seeking election. -- Gulf Today, Sharjah, February 20, 2018.

A noble legal tradition in jeopardy

BRP Bhaskar
Gulf Today

In an age of liberal thought a few enlightened judges charted out a new course which enabled India’s poor and marginalised people to surmount the obstacles that limited their access to the Judiciary. That age has passed and the noble tradition of public interest litigation which enhanced the quality of justice is in trouble.

The Constitution, proclaimed two and a half years after the country gained Independence, promised justice – social, economic and political – to all. It also guaranteed equality and equal opportunities, regardless of religion, race, caste, sex or place of birth. Of what practical use was all that to the millions who had been denied basic human rights for centuries and lived in squalor?

On the face of it, the transition which took place on August 15, 1947, the day British colonial rule ended, and on January 26, 1950, the day India proclaimed itself a secular, democratic republic, was of a superficial nature. The new dispensation worked with the same bureaucrats, same policemen, same soldiers, the same judges who ran the colonial administration.

The judiciary was the institution farthest removed from the masses. While it enjoyed a reputation for fairness among the educated elite and the rising middle class, it was beyond the reach of the poor. The lower courts treated them with the same disdain as during the colonial-feudal period, and the higher courts were beyond their reach as the legal process was too costly and time-consuming. The juridical practice inherited from the colonial period allowed only persons with a sense of injury or personal hurt to seek remedy from the court.

In the 1970’s, a couple of judges of the apex court broke down the barrier and allowed concerned citizens or groups to raise issues on behalf of suffering citizens. Thus began a phase of access to justice through class action, public interest litigation (PIL) and representative proceedings.

Supreme Court judge VR Krishna Iyer, a pioneer of PIL jurisprudence, outlined the philosophy behind the innovation in these words: “Little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigation, is an affirmation of participative justice in our democracy.”

When the apex court took up a PIL by Bandhua Mukti Morcha on behalf of bonded labourers, the government objected on the ground that it was an unregistered association. The court dismissed the argument and declared any person with no direct interest in the matter can champion the case of the downtrodden.

The court’s repeated intervention, coupled with legislative measures taken by the government, freed hundreds of thousands of people, mostly belonging to the Dalit and Adivasi communities, from generations of bondage. PIL was the instrument which made this possible.

By the 1980’s, the Supreme Court expanded the scope of PIL beyond the original intent of helping the poor to include broader issues of social concern like protection of the environment. Responding to pleas by environmental groups, it stepped in to prohibit mining operations and check pollution of waters by industries and of air by motor vehicles.

The 1990’s witnessed further expansion of PIL with judges allowing individuals or groups actuated by considerations of social good to raise issues of governance including corruption. Following the apex court’s example, high courts too began to entertain PILs.

Many foreign observers found the Indian judicial innovations praiseworthy. Zachary Holladay of the Indiana University’s Maurer School of Law, who studied the working of PIL, said the Indian system could serve as a model for other developing countries in addressing the problems of marginalised and disadvantaged communities.

There were at all times conservative elements in the Indian judiciary who did not look upon PIL with favour, viewing it as judicial activism. From time to time they sounded notes of caution. Public interest litigants who approached courts without adequate preparations played into the hands of those who were looking for opportunities to discredit the system.

In the last few years both the Supreme Court and the high courts have come down heavily on several petitioners for misuse of PIL. In some cases they have fined petitioners and barred them from raising PIL in future.

Last week the apex court fined a trust and its chairman Rs2.5 million and barred them permanently from filing PIL. Over the past few years the trust had filed 64 PILs, all of which had failed.

Such punitive action can have a chilling effect on public interest litigants and throw the system into jeopardy. PIL has contributed most to the high reputation the Judiciary today enjoys as the people’s last resort. The court’s desire to free itself from the burden of frivolous petitions is understandable, but it should guard against throwing the baby with the bathwater.

Making justice affordable

BRP Bhaskar
Gulf Today

Jurists never tire of repeating the old maxim “Justice delayed is justice denied”. The saying has special relevance for India, which has a history of judicial delays that goes back to the early days of colonial rule.

Speaking in the context of the stand-off between the Supreme Court and the Central government which has slowed down judicial appointments, Chief Justice of India TS Thakur recently said executive inaction was decimating the judiciary.

Responding to his references to the issue in the courtroom and elsewhere, the Narendra Modi government last week leaked to the media some data to dispel the impression that there had been an abnormal increase in vacancies in the higher courts. 

The standoff is the result of differences between the Executive and the Judiciary on their roles in the process of appointment of judges of the higher courts. The Supreme Court, through three judgments over the last few decades, had virtually reduced the Executive’s role to that of a postman delivering the Judiciary’s communications to the President, the appointing authority.

The Modi government enacted a law to put an end to the practice of a collegium comprising a few senior judges deciding on appointments and transfers and to entrust the task to a national judicial commission. The Supreme Court struck it down as unconstitutional. 

Things have not been going smoothly since then. About 80 appointments have got stuck as the Centre is taking its own time to forward to the President the names finalised by the collegium.

Court delays are already a serious problem. Shortage of judges is bound to add to the delays. 

At present more than 30 million cases are pending in various courts, mostly those at the lower levels. According to Justice Thakur, judges from the lowest to the highest courts dispose of, on an average, 2,600 cases in a year, as against only 80 handled by a Supreme Court judge in the USA. Going by this figure, close to 12,000 more judges will be needed to wipe out the arrears within a year and ensure that new backlogs do not arise.

The tussle between the Executive and the Judiciary relates to filling of vacancies in the Supreme Court and the High Courts. Lower court appointments are not involved in it.

More than 3.8 million cases are pending in the 24 high courts. Close to 1,500 judges will have to work for a year to dispose of them. Currently the high courts have a sanctioned strength of 1,079 judges, including 173 posts created last June. However, the effective strength is only 620. Justice Thakur is, therefore, justified in raising an alarm over shortage of judges. 

However, the issue is not one of number of judges alone. Their quality is also a relevant factor. There is nothing to indicate that the collegium system has been able to produce better judges than the earlier one. If anything, there has been deterioration in quality. The courts’ inability to rein in unruly lawyers points to erosion of the moral authority of judges.

Since the quality of justice depends to a large extent on the quality of the judges, care must be taken to ensure that the courts get the right kind of people.

The Constitution has a provision which can help meet the current shortage of judges. It allows Chief Justices of high courts to appoint retired judicial officers as ad hoc judges. They must invoke this provision to clear the arrears

All the good work done by the Judiciary since the Constitution came into force 66 years ago cannot negate the fact that it has failed to make justice easy and affordable. The Supreme Court’s refusal to entertain the idea of regional benches has put it physically beyond the reach of vast sections of the population. The high cost of litigation in the higher courts effectively denies access to justice to the poor.

In the 1950s the Supreme Court’s eight judges had to handle only about 1,200 cases filed in a year. Now its 31 judges have to cope with more than 60,000 cases filed in a year. 

The steep rise in the number of cases is not the result of population explosion alone. The cumbersome court procedures are also to blame. There is urgent need to reform the procedures to speed up delivery of justice.

All too often the higher courts allow themselves to be dragged into issues which can be settled at lower levels or left to other bodies, like those with expertise in the areas of mediation and arbitration. -- Gulf Today, November 1, 2016.

Era of army impunity ends

BRP Bhaskar
Gulf Today

The immunity from prosecution which security personnel deployed in insurgency-hit areas have enjoyed under the Armed Forces Special Powers Act (AFSPA) may become a thing of the past with the Supreme Court striking a decisive blow for freedom and accountability.

AFSPA, which is in force in parts of Jammu and Kashmir and the predominantly tribal states of the northeast, stipulates that there can be no legal proceedings against personnel acting under it. There has been a plethora of allegations of human rights violations by security forces and these have led to violent protests on several states.

In an 85-page judgment, delivered last Friday, a Supreme Court bench said every death caused by the armed forces should be thoroughly enquired into. “It does not matter whether the victim was a common person or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both,” it declared.

Rejecting the government’s claim that denial of immunity would demoralise security personnel, the court said there was no concept of absolute immunity for an army person who committed a crime.

Every person who violated prohibitory orders in a disturbed area was not an enemy, it pointed out. Even if the person was an enemy there should be an enquiry to ascertain if excessive or retaliatory force had been used. It also drew a distinction between use of force in an operation and in other situations.

It entrusted the National Human Rights Commission with the responsibility of ordering enquiry into allegations against the security forces, and named the criminal investigation department of the police as the agency to conduct the enquiry.

AFSPA’s roots go back to the colonial era. The different versions of the law in force in various states are all based on the ordinance the British promulgated in 1942 to deal with the Quit India agitation which the Congress party launched even as the Indian National Army, formed by Subhas Chandra Bose to fight alongside Japan, was moving towards the eastern border from Singapore.

The ordinance was allowed to lapse after World War II. A few years after the country gained freedom it was resurrected to grant immunity to army and paramilitary personnel called out to deal with Naga insurgency in the eastern state of Assam. It is now in force, under the name AFSPA, in Nagaland, Manipur and Arunachal Pradesh in the northeast and in J and K.

Ordinarily, AFSPA is applicable only in areas notified as “disturbed”. Most versions of the relevant law limit the “disturbed area” notification’s validity to six months. However, some areas have been kept under AFSPA continuously for half a century by repeatedly reissuing the notification.

J and K invoked AFSPA following a spurt in insurgency in 1992. The state’s Disturbed Areas Act lapsed in 1998 but AFSPA continues to this day. The National Conference government headed by Omar Abdullah wanted AFSPA to be withdrawn but the Centre did not oblige.

The People’s Democratic Party which heads the state government now also favours withdrawal of AFSPA, but the Bharatiya Janata Party, which heads the Central government and is PDP’s junior partner in the ruling coalition in the state, is a vocal supporter of the law.

The day the Supreme Court verdict on AFSPA came the security agencies announced the killing of 22-year-old Burhan Wani, said to be a home-grown Hizbul Mujahideen commander, and two associates in an encounter. At least 20 persons were killed and 200 injured as security forces fired on youths protesting against his killing.

The worst part of AFSPA is the security forces’ reluctance to part with it and the government’s readiness to honour their wishes. People in many states have been seeking the withdrawal of AFSPA for decades. Irom Sharmila, a young woman poet of Manipur, who began an indefinite fast in November 2000 demanding repeal of AFPSA and is kept alive through nasal feeding in a hospital, has become a global icon of the human rights movement.

The state of Punjab and the Union Territory of Chandigarh came under AFSPA in 1983 in the wake of the secessionist Khalistan movement. Under Congress and Akali Dal governments Punjab retained it until 1997. Chandigarh held on to it until the Punjab and Haryana High Court struck it down in 2012. Tripura’s Communist Party of India (Marxist) government lived with AFSPA for 14 years.

The apex court verdict has formally ended the era of army impunity. But more struggles in legal and other forums may be needed to make it a reality.--Gulf Today, July 12, 2016.

Menace of lawless lawyers

BRP Bhaskar
Gulf Today

Lawbreakers in advocate’s robes trying to overawe the judiciary, lower court judges resorting to trade union tactics, politicians looking on passively if not actually encouraging recalcitrant elements, and higher courts unable or unwilling to discipline the unruly – these are sure signs of evolving threats to Rule of the Law.

Such elements have surfaced in different states from time to time. In the state of Telangana, which was carved out of sprawling Andhra Pradesh two years ago following a prolonged agitation, they have all manifested themselves at the same time.

The law providing for bifurcation of Andhra Pradesh stipulated that the governments of Telangana and the residuary Andhra Pradesh will both function from Hyderabad, which is in the former’s territory, until the latter built a separate capital and that the undivided Andhra Pradesh High Court based in Hyderabad would serve both the states until Telangana set up a separate high court.

The separation turned messy as the two states started squabbling over division of water and power. A new point of friction developed when the AP High Court allocated members of the lower judiciary to the two states, leading to protests by judges and lawyers in Telangana alleging the state got a raw deal. Their agitation paralysed the lower courts, causing immense hardship to litigants.

At least 130 judges allotted to Telangana are said to belong to the residuary Andhra Pradesh state. About 100 judges attended a meeting to protest against their appointment. The High Court suspended 10 agitating judges. The members of the Telangana Judicial Officers Association then threatened to resign en masse.

Telangana Chief Minister K Chandrasekhara Rao joined the fray by dashing off a letter to the Centre demanding immediate setting up of a separate high court for the state. Union Law Minister Sadananda Gowda’s thoughtless remark comparing Rao with Delhi Chief Minister Arvind Kejriwal, who is involved in a running battle with the Centre, embittered public opinion.

Agitating lawyers taking the law into their own hands is by no means a rare phenomenon in India today.

Last October, in Tamil Nadu, a large group of lawyers held rallies on the premises of the Madras High Court in Chennai, barged into courtrooms shouting slogans and staged a sit-in outside Chief Justice Sanjay Kishan Kaul’s court while he was presiding over the proceedings. They were demanding, among other things, withdrawal of contempt proceedings against two Madurai-based leaders of the bar association. The Madurai bench of the high court had witnessed unruly scenes earlier.

According to a media report, some judges and lawyers hold that recurrence of such incidents is the result of a steady intrusion of criminal elements into the legal profession. Lawyers and policemen have clashed in the vicinity of Chennai courts on several occasions.

Tamil Nadu Bar Council Vice-Chairman PS Amalraj estimates that only 15 per cent of the state’s 80,000 advocates are involved in disruptive activities. Many of them are not practising lawyers, he says.

In an attempt to ensure purity of the justice delivery system, Madras High Court judge N Kirubakaran recently directed the Bar Council of India not to enrol as lawyers persons involved in criminal cases.

Similar incidents have been reported from other states like Uttar Pradesh too. However, the criminal records of lawyers in the states pale into insignificance when compared to pro-BJP lawyers in the national capital. Early this year, they physically assaulted Jawaharlal Nehru University Union president Kanhaiya Kumar, whom the police had charged with sedition on a dubious complaint by the Akhil Bharatiya Vidyarthi Parishad, a pro-BJP student organisation, on two occasions when he was produced in the courts.

They also pounced upon JNU professors who came to express solidarity with the students, media personnel who were there to cover the court proceedings and a team of senior lawyers who were deputed by the Supreme Court to watch the proceedings and report it.

The Delhi police, which is directly under the BJP-ruled Centre, remained mute spectators when the lawyers indulged in hooliganism. Rejecting media reports which referred to the lawless lawyers as goons, their spokesman claimed they were patriots!

It was easy to identify the men who assaulted Kanhaiya Kumar on the court premises as video recordings of the attack by lawyers were available. Yet, neither the Delhi police nor the Bar Council of India pursued the matter expeditiously. As a result, the culprits remain unpunished.

Scandalised by the developments which took place under its very nose, as it were, the Supreme Court warned of strong action. However, there has been no action so far.--Gulf Today, July 5, 2016.

Criminal defamation — No respite

BRP Bhaskar
Gulf Today

India’s Supreme Court, which has occasionally used its wide powers to improve upon outdated laws, last week let go an opportunity to revise the colonial defamation law in tune with democratic ideals.

Defamation is actionable under both civil and criminal law. The Indian Penal Code, which makes it a criminal offence, was drafted by legendary British historian and politician Thomas Babington Macaulay and came into force in 1860. Its relevant provisions are based on the law then prevailing in Britain, which aimed at protecting the reputations of the supporters of the Establishment.

The IPC underwent changes 40 times during 87 years of British rule and 36 times more in the 68 years since then. Its basic approach towards defamation, however, remains unchanged.

It prescribes a jail term of up to two years for criminal defamation.

Historically, law has recognised two kinds of defamation: slander, or defamation committed by the spoken word, and libel, or defamation committed by the written word. In the feudal era, slander of the nobility was an offence akin to treason in Europe and could invite the death penalty. After India gained freedom, political leaders virtually converted themselves into a new feudal ruling class and they have been unwilling to do away with the defamation provision of the colonial period.

Human rights organisations have been asking governments to abolish criminal defamation as it intimidates citizens and dissuades them from exposing wrongdoing by people in high places. UN bodies have endorsed the demand.

In the United States, a defamation case will stand only if the complainant is able to establish that the impugned statement is false and was made negligently or with malice and its publication has caused him material harm. If the complainant is a public figure, the standard of malice must be met strictly. Expression of an opinion is not considered defamation.

To circumvent the tough conditions set by the US law, influential Americans, especially corporates, started seeking legal remedy in Britain, leading to what was called ‘libel tourism’. The UK responded by revamping its defamation law. The new law, which came into force two years ago, requires complainants to show actual or probable serious harm.

Britain has now taken seditious, blasphemous and defamatory libel out of criminal law. In India all these forms of libel remain intact and are slapped on those who meet with the disapproval of powerful political or religious interests.

Gandhi and BG Tilak were among the nationalist leaders whom the British charged with sedition. Few cases of sedition have succeeded since Independence but governments take delight in flinging the charge to harass opponents. Some student leaders of the Jawaharlal Nehru University in Delhi are currently facing sedition charges.

The state, bound by the constitutional principle of secularism, has desisted from resort to the blasphemy provision of the law but religious elements have been invoking it to intimidate critics. The celebrated artist MF Hussain fled to Dubai and spent his last years there as Hindutva elements who felt offended by his depiction of some Hindu goddesses filed a few thousand cases all across the country even after the highest courts ruled that the paintings were artistic representations and should be judged as such.

Sanal Edamaruku, President of the Indian Rationalist Association, has been living in exile in Finland since 2012 as the Catholic Archdiocese of Mumbai, angered by his busting of a claimed miracle in a church, filed a blasphemy case against him.

The Supreme Court examined the issue of criminal defamation on the basis of petitions filed, among others, by Congress Vice-President Rahul Gandhi, Delhi Chief Minister and Aam Admi Party leader Arvind Kejriwal and Bharatiya Janata Party MP Subramanian Swamy, all of whom are facing criminal defamation charges.

The Central government argued that criminal defamation must stay as cases took years to conclude and citizens would not be able to pay damages for civil defamation. Surely these problems can be overcome by speeding up trials and awarding affordable damages.

Yet the court endorsed the government’s arguments. It held the law did not have a chilling effect on free speech.

The court betrayed a confused approach in observing that freedom of speech and expression was the first condition of liberty and then declaring that free speech was not an absolute value under the Constitution. It glossed over the fact that the law, as it now stands, provides a shield to public servants facing serious allegations.

The judgment, given by a bench of two judges, is a big disappointment as it has failed to take defamation out of the feudal context. Considering the serious import of the issue, a Constitution Bench should examine it at the earliest opportunity. ---Gulf Today, Sharjah, May 17, 2016

How the law takes its own course

BRP Bhaskar
Gulf Today

A study on the working of the death penalty has lighted up the tortuous path the law takes and the impact it has on the lives of the poor who get caught in its tentacles.

The pioneering research project undertaken by a group at the National Law University, Delhi, led by Assistant Professor Anup Surendranath, has resulted in the mining of much valuable data on the social and economic aspects of the death penalty and the vagaries of the justice system.

It has also led to the establishment of a Centre on the Death Penalty, whose sphere of activity extends beyond research to litigation and advocacy. At present it represents 40 death row prisoners. Its public affairs team promotes discussion on the death penalty issue outside the realm of law.

Members of the group interviewed 373 of 385 persons in the death row. They also traced family members of the convicts and talked to them. They could not meet 12 condemned prisoners as the authorities denied access to them.

While collecting data, the group noticed several systemic problems that dog the process of criminal investigation and justice delivery. Torture to extort confession was common. Failure to ratify the UN Convention against Torture, which India signed in 1997, virtually sanctions continuance of the medieval practice.

The group found that social and economic factors were at play in the breeding of crime. More than two-fifths of the death row prisoners belonged to socially disadvantaged sections and three-fourths were economically vulnerable. While the Constitution promises equality before law the long and costly process involved effectively denies it to the poor.

Add to it the vagaries of the legal process. The study revealed a wide gap between the approaches of the lowest and highest levels of the judiciary to sentencing. In cases which attract the death penalty less than five per cent of the trial court convictions met with the apex court’s approval. The higher courts set aside the conviction and acquitted the convicts in about 30 per cent of the cases and gave reduced sentences in the remaining cases.

More than 40 years ago the Supreme Court ruled that the death penalty should be awarded only in “the rarest of rare” cases. All too often courts have differed in their assessment of whether or not a case falls in the “rarest of rare” category.

Instances of the same court making conflicting assessments are also on record. A Supreme Court bench sent to the gallows a man who was found guilty of kidnapping a boy for ransom, saying it was a “rarest of rate” case. Earlier it had reduced the death penalty the lower court had awarded to a man who killed his wife and daughter while on parole after being convicted on a charge of raping the daughter, holding the case was not of the “rarest of rare” kind.

The most agonising part of the legal process is the prolonged period of uncertainty through which a death row inmate passes as he awaits the outcome of his plea for mercy. There have been occasions when this period extended beyond two decades. It is a period of acute mental stress as he remains trapped between hope and death.

While the Supreme Court has upheld the constitutional validity of the death penalty, the Law Commission, in a report last September, broke with past recommendations and proposed that the country move towards restricting its use to terrorism cases, where it was necessary for reasons of national security.

The growing national movement for abolition of the death penalty suffered a setback two years ago when the national outrage over a gang rape in Delhi prompted the government to toughen the law relating to grave sexual offences.

In justification of its new recommendation, the Law Commission pointed out that the murder rate had fallen from 4.6 per 100,000 people in 1992 to 2.7 per 100,000 in 2013. The rate of executions too had declined. National Crime Records Bureau’s figures indicated that the average number of persons sentenced to death now stood at 129 a year.

The police forces’ bias against the minorities is well-known. The rise of terrorism has led to the spread of prejudice to other sections too. In confirming the death penalty awarded to Afzal Guru, one of the accused in the Parliament attack case, the Supreme Court had observed that “the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender”. Many have taken exception to this observation, viewing it as proof of deviation from the standard judicial approach.  -- Gulf Today, Sharjah, May 10, 2016.

Perilous polarisation

BRP Bhaskar
Gulf Today

Sixty-six years ago the fathers of the Constitution brought forth upon this subcontinent a nation conceived in liberty and dedicated to the proposition that all men and women are equal. Now we are engaged in a great battle, testing whether a nation so conceived and dedicated can long endure in a land which has experienced centuries of graded inequality, established and sustained through violence by a minority which arrogated to itself the authority of the dominant religion.

The echoes of Abraham Lincoln’s Gettysburg address in the above lines are intentional. For, although the battle is fought mainly on the political plane and in constitutional forums, the nation stands polarised perilously and the calculated use of force by one side, which also makes strident calls to arms, has created an air of civil strife.

As of now the outcome of the campaign launched by the Rashtriya Swayamsevak Sangh through its students’ organisation, Akhil Bharatiya Vidyarthi Parishad, remains open. Even before the backlash of the tragic end of Rohith Vemula, Dalit research scholar of the Hyderabad University, subsided, the Sangh Parivar opened a new front in the Jawaharlal Nehru University. Judicial intervention has checkmated it there.

Some worrisome flip-flops preceded the Delhi High Court’s grant of conditional bail to JNU Students Union President Kanhaiya Kumar, whom the police arrested on sedition charges following complaints filed by ruling Bharatiya Janata Party MP Maheish Girri and ABVP members. His arrest had angered and united the political opposition at home and invited sharp criticism from academics in different lands.

On February 15, pro-Parivar lawyers assaulted Kanhaiya Kumar and JNU students and teachers who had turned up to demonstrate solidarity with him and media persons in the trial court premises, dubbing them anti-nationals. The police merely looked on.

Two days later, the lawyers did it again, contemptuously ignoring the presence of the Registrar of the High Court, who was deputed by the Supreme Court to watch the situation, they also stoned and chased away senior lawyers who too were sent by the apex court.

In view of the unprecedented developments on the lower court premises, Kanhaiya Kumar’s lawyers moved the Supreme Court directly for bail, and his application was scheduled for consideration the next day. However, when the matter came up, the bench headed by Justice GS Khehar backed off. It asked him to go to the High Court, saying its entertaining the bail application directly would create a new precedent.

The High Court took 12 days to grant the student leader bail. In her judgment, Justice Pratibha Rani went beyond the requirements of law and virtually endorsed the prosecution case against him, using terms lifted from the vocabulary of the current political Establishment which dubs its critics anti-national.

In a channel debate, former Supreme Court judge AK Ganguly said Justice Pratibha Rani’s comments were “an act of judicial cowardice.” Alluding to her directive to Kanhaiya Kumar not to actively or passively participate in anti-national activities, former Additional Solicitor General Indira Jaising said, “There can be no anticipatory restraint on free speech.”

Three weeks after pro-Parivar lawyers created mayhem on the court premises there has been no sign of effective action against them by either the police or the judiciary, although there is in the public dominion a video in which some of them brag about their criminal act.

The Bar Council of India, which initially said it would take strong action against erring lawyers, is now providing them cover by describing their conduct as a response to provocative slogans by JNU teachers and students.

There are other disquieting developments too. The Delhi High Court has permitted a Parivar-affiliated lawyers’ organisation to hold an International Women’s Day function on its premises and Chief Justice G. Rohini is to be the chief guest. Indira Jaising criticised the move as indicative of the court throwing its weight behind the Parivar body.

Meanwhile, Hindutva elements continue to exacerbate the situation with hate speeches. One organisation offered a cash award for harming Kanhaiya Kumar. One leader exhorted his followers to prepare for a last battle against Muslims.

Sixteen eminent citizens, in a letter to Chief Justice TH Thakur and other judges of the Supreme Court drew their attention to the alarming and threatening statements of persons in power. They said these statements, which seemed to be part of a pattern, had caused fear and insecurity among the citizens, particularly minorities, Dalits and Adivasis and solicited suo motu constitutional action.

Along with it, they sent with recordings and press reports of a score of hate speeches by different leaders, including RSS chief Mohan Bhagwat and members of the government.

The signatories to the letter included former judges PB Sawant, Rajinder Sachar, BG Kolse Patil and Hosbet Suresh, former police officers Julio Ribeiro and SM Mushrif and well-known scientist PM Bhargava. -- Gulf Today, Sharjah, March 8, 2016.

We the People Have No More Say on the Constitution

By B R P Bhaskar

The Wire.in

Last year the Lok Sabha, whose 543 members were elected on the basis of universal adult suffrage and thus directly represent India’s 1.2 billion people, unanimously approved a bill to incorporate in the Constitution a provision to set up a National Judicial Appointments Commission to pick judges for the superior courts. The next day the Rajya Sabha, all but 12 of whose 245 members were elected by the elected members of state Assemblies and thus indirectly represent the 1.2 billion people, approved the bill, again unanimously.

Within five months a majority of the state Assemblies ratified the bill. Thereafter the President, who was elected by an electoral college comprising members of both houses of Parliament and the Assemblies, signed the bill into law. With that, the procedure laid down to make changes in the Constitution was complied with fully, and the provision to set up the National Judicial Appointments Commission became a part of the Constitution.

Last week, four learned judges, who represent none but themselves, said it is not part of the Constitution. Judges must continue to appoint judges, they declared. Anywhere else it would have been put down as judicial arrogance. In India, it is supposed to be affirmation of judicial independence.

The separate judgments of the five judges who examined the validity of the Constitution (99^th Amendment) Act and the National Judicial Appointments Commission Act is notable for several observations that militate against common sense.

Take, for instance, the assertion that the Judiciary can be independent only if judges appoint judges. There are several constitutional bodies, besides the Judiciary, which are required to function independently of the Executive. The Election Commission, the Comptroller and Auditor General and the Union and State Public Services Commissions are among them. Must they also not then become self-perpetuating?
No evidence that marginalised benefited

One judge argued that Executive participation might lead to exclusion of persons on grounds of sexual orientation. There is nothing on record to show that any member of the LGBT community – or for that matter any other marginalized group — came into the Judiciary through the judges-appoint-judges system, which has been operating for two decades. 

Actually, there is no evidence to believe that even the Scheduled Castes, the Scheduled Tribes and Other Backward Classes, for whom special provisions exist in the Executive and Legislative branches, fared better in the Judiciary under the judges-appoint-judges dispensation than earlier. There is no need to dispute the widely held belief that under the original constitutional scheme, in which the Executive had primacy, the best candidates were not always picked for the posts of judges. But isn’t this true also of the judges-appoint-judges system?

Justice U.L. Bhat, who was Chief Justice of the Guwahati and Madhya Pradesh High Courts, writes in his autobiography that M. N. Venkatachalaih, the first Chief Justice of India to enjoy primacy in appointments, told him that his junior, Justice K. S. Paripoornan, was being elevated to the Supreme Court, bypassing him, since “my colleagues feel that you are irreverent to them”.

Justice Venkatachalaiah is one of the most highly respected former CJIs. Justice Bhat’s revelation suggests that even under him merit was not the first consideration. One of the judges on the bench, which heard the NJAC case has, in his judgment, referred to a couple of more recent and far worse choices.

Wrong choices are often the result of human fallibility, and the system cannot be blamed for them. An objective study will probably show that their incidence went up under the judges-appoint-judges system. This may have nothing to do with the system itself, and may be the result of the general deterioration in the standards of society.

Members of the Executive and the Judiciary come from more or less the same sections of the society. Any deterioration in the standards of society will naturally reflect in the composition of these institutions. If the Executive appears in poorer light than the Judiciary, it may be because politicians come under greater public scrutiny than judges.

Judiciary’s dismal record

The Judiciary has a dismal record in dealing with acts of misdemeanour in its ranks. Judges of a High Court whom the local Bar dubbed as corrupt and boycotted remained on the Bench without hearing any case until they retired. Even some CJIs have attracted serious charges but did not have face any action. Former Supreme Court judge Markandey Katju, in a recent Facebook post, said he had with him a dossier on Justice H. L, Dattu, the present CJI, and was ready to give it to any one willing to file public interest litigation. It is not clear why he wants someone else to bell the cat.

All the four judges who joined hands to throw out the NJAC agreed that the judges-appoint-judges system had problems which need to be set right. After throwing out the NJAC, the bench decided to sit again on November 3 to deal with what the presiding judge described as the “surviving issue of grievances as to working of the pre-existing system”. What the bench plans to do is not a judicial function, but one of law-making – more precisely one of further amending the constitutional provisions regarding appointment and transfer of judges.

The Constitution, in its original form, was prepared by an Assembly with 305 members. They were not elected representatives of the people. As many as 229 of them were elected by provincial Assemblies of British India, whose members were elected on the basis of limited franchise. Seventy represented the princely states. Many of these states had no Legislatures and their representatives were nominated by the ruler. Only seven members – six from Travancore and one from Cochin – could claim to truly represent the people, because their Assemblies were elected on the basis of adult suffrage.

The Constituent Assembly members assumed theirs was a fully representative body and enacted the Constitution in the name of the People of India. They did not hand over the Constitution they had enacted to the President or the Executive or the Legislature or the Judiciary. They entrusted it to the People. Note the words of the Preamble:  “We the People of India ….hereby adopt, enact, and give to ourselves this Constitution.”
We the People were thus the makers of the Constitution as well as its custodians. But not any more.

We the People in our Constituent Assembly, who enacted the Constitution, laid down that We the People in our Parliament will make changes in it whenever necessary. The Constitution worked in that manner for two decades, during which period the Judiciary, when called upon to interpret its provisions, upheld Parliament’s unfettered right to amend it.

Then, the Judiciary changed its tune. It ruled that Parliament could not make changes in the Fundamental Rights chapter. Later, it changed its stand. It said Parliament could amend any part of the Constitution, including the Fundamental Rights chapter, but not in such a manner as to alter its basic structure.

With the basic structure remaining undefined, the Judiciary – more precisely, a bench of three to nine judges — has the unfettered right to say not only what the Constitution is but also what it should be. This is a perversion of parliamentary democracy and it is time to think of ways to restore the role of We the People as makers and keepers of the Constitution.

Vengeance in garb of justice

BRP Bhaskar
Gulf Today

The hanging of Mumbai serial blasts convict Yakub Memon last week has brought to the fore the issue of administration of justice, with particular reference to use of the death penalty.

“Ultimately, justice has been delivered to all the victims of the 1993 Mumbai blasts,” said Bharatiya Janata Party Secretary Shrikant Sharma. Congress party spokesman PC Chacko echoed his sentiments but added “full justice” would come only when Tiger Memon and Dawood Ibrahim, the prime accused, were punished.

“Justice according to law has been done,” said former Supreme Court judge BN Srikrishna, revealing an understanding of the concept of justice which was missing in the politicians’ comments. The cases relating to the blasts and those relating to the communal riots that occurred earlier were “dealt with disparately, depending on the communal inclinations of the state apparatus,” he added.

Justice Srikrishna who held a judicial inquiry into the riots had found a causative link between the two events. The Memon family had suffered extensive damage in the riots.

The justice-has-been-done refrain of the ruling BJP and the opposition Congress seeks to camouflage the cycle of violence and vengeance of the past quarter century in which the former was an active participant, along with its Hindutva ally Shiv Sena, and the latter was an ex post facto accessory.

The chain of events started with the demolition of Babri Masjid at Ayodhya in Uttar Pradesh by Rashtriya Swayamsevak Sangh cadres on December 6, 1992 in the presence of BJP chief LK Advani.

Justice Srikrishna said a spontaneous peaceful protest by incensed and leaderless Muslims in Mumbai quickly degenerated into riots. He attributed part of the blame to the provocative slogans raised at celebratory rallies organised by Shiv Sena and BJP. Later, Hindu mobs, influenced by the communal propaganda of Shiv Sena leaders, including its supremo Bal Thackeray, resorted to large-scale violence. 

Sudhakarrao Naik of the Congress was the Chief Minister when the riots broke out. The blasts occurred after Sharad Pawar took over from him.

When the SS-BJP combine came to power, the government disbanded the Srikrishna Commission. BJP Prime Minister AB Vajpayee asked the SS Chief Minister to reinstate it.

The riots and police firings to quell them left 900 dead. Of them, 575 were Muslims and 275 Hindus. While in power neither the SS-BJP combine nor the Congress pursued the riot cases vigorously.

In the only riot case that resulted in conviction, three SS men, including Madhukar Sarpotdar, MP, were given one year’s rigorous imprisonment. Sarpotdar was immediately granted bail and died two years later without going to prison.

The 13 explosions left 257 dead and more than 700 injured. Damage to property was estimated at Rs 300 million. The prosecution said the blasts were plotted by underworld don Dawood Ibrahim and carried out by his associates including Tiger Memon.

The entire Memon family slipped out of Mumbai to Karachi, where Dawood is believed to be living under ISI protection. Tiger’s brother Yakub returned later, professing innocence, and provided the authorities with information on the roles of Dawood, Tiger and the ISI.

Members of all communities suffered in both the riots and the blasts. The media identified blast victims of one community who kept asking for justice. No riot victims of any community were paraded. Thus, in public discourse, justice became synonymous with vengeance.

In 2006, the trial court awarded the death penalty to 12 persons, including Yakub. As the case moved to higher courts, the others got relief and Yakub became the only one to be hanged.

Yakub’s final hours were marked by high drama with three Supreme Court judges sitting twice, the last time around 4am, three hours before the time set by the trial court for his hanging, to dispose of petitions filed by him or by others, including some eminent citizens, on his behalf. They really did not have to go without sleep. They could have followed the standards practice of staying the execution until the petitions were disposed of.

Unable to view the last acts of the drama as triumph of the rule of law, Anup Surendranath, Deputy Registrar (Research) at the Supreme Court quit the job to focus on the Death Penalty Research Project at the National Law University, of which he is the Director.

Why did the apex court judges feel so bound by the time-frame set by the lower court that they sacrificed sleep to honour it? There is no ready answer to the question. -- Gulf Today, August 4, 2015.

Securing cyber freedom

BRP Bhaskar
Gulf Today

India’s Internet community, now believed to be 300 million strong, heaved a sigh of relief last week as the Supreme Court struck down a notorious legal provision which was hanging over their heads like the sword of Damocles.

The provision, Section 66A of the Information Technology Act, made electronic transmission of messages which are grossly offensive or menacing or aimed at causing annoyance or inconvenience an offence punishable with imprisonment of up to three years and a fine. It was smuggled into the 2000 Act through an amendment, which Parliament passed without close scrutiny.

It was obnoxious for two reasons. One was that it used vague terms such as ‘grossly offensive’ and ‘causing annoyance or inconvenience,’ which could be stretched to cover almost anything.

The other was that it empowered the police to register a case on receipt of a complaint and arrest the alleged offender without even a preliminary enquiry.

The provision was widely misused by the police under the influence of politicians, including those who were not holding any office. At the instance of the Shiv Sena, the Maharashtra police arrested two young women for their disapproval of the Mumbai shutdown in mourning for the party’s founder, Bal Thackeray. A small industrialist in Puducherry was held for a tweet which said former Union minister P Chidambaram’s son, Karti, had made more money than Congress President Sonia Gandhi’s son-in-law Robert Vadra. A Keralite working in a Gulf State was enticed home for circulating the photograph of a palatial building falsely claiming it was Communist Party of India-Marxist leader Pinarayi Vijayan’s house.

In response to a Right to Information Act query a newspaper was informed that in a two-year period 137 cases under Sec 66A were registered in five of Delhi state’s 11 police districts. Data relating to the other districts was unavailable.

India’s Constitution guarantees the citizens freedom of speech and expression but allows the state to place reasonable restrictions on all freedoms in the interests of national security, sovereignty and integrity, friendly relations with other countries, public order, decency or morality. The court held that the restrictions imposed by the vaguely worded Section 66A go beyond the limits of reasonableness and had a chilling effect on free speech.

The court verdict elicited contradictory responses. Avid social media users hailed it as a Magna Carta for our times. Self-appointed protectors of the order mourned that the state was no longer in a position to defend itself against the depredations of irresponsible Net users.

Both responses are based on inadequate appreciation of facts. The best part of the judgement is that the police can no longer arrest a person on the basis of a mere complaint. However, the state can still block writings it does not approve of. Section 69A of the IT Act and the rules framed under it give the government the power to itself block or order intermediaries such as Facebook or internet or telecom service providers to block access to any information generated, transmitted, received, stored or hosted in any computer resource.

Also intact are Section 79 and the rules which cast on the intermediaries a duty to remove or disable access to certain kinds of material within 36 hours of being notified by the government or its agencies. These provisions also exempt the intermediaries from liability if they follow stipulated conditions.

The court let these provisions stand even though, like Section 66A, they are couched in vague terms. However, it said, they must be “read down.” Analysts took this to mean that the intermediaries need act on a government directive only if it is backed by a proper notification or court order.

Critics of the IT Act have argued that no separate cyber law is needed as the ordinary laws of the land have enough provisions to protect national sovereignty and integrity, friendly relations with other countries, public order, decency and morality. However, the court said there could be a separate law to deal with cyber crimes.

The problem really is not the intent of the law but the propensity to misuse its provisions. While the court verdict has reduced the scope for police intervention there is still room for politicians to play around.

Cyber freedom inevitably carries with it the threat of misuse by reckless users. But the consequences of such misuse are often exaggerated. Activities by state and non-state agencies possibly pose far greater threats than malicious individuals. -- Gulf Today, Sharjah, March 31, 2015.