ഒരു വി‌കെ‌എൻ കടിതം

Thiruvilvamala P.O.

Trichur Dt – Kerala

680588

1 January 1983

ശ്ശെടാ ബാബുഷ്കരേ,

                          ഉൻ കടിതം.

                           മെച്ചിനോം.

                            വരേൻ.

                                             വി കെ എൻ

   Scoop

                      ഇന്റയ്ക്ക് പുത്താണ്ട്.

On Veena Vidwan S. Balachander

                S. Balachander

One of the rewards of journalism is the opportunity it provides to meet interesting people.

Renowned Veena vidwan S. Balachander (1927-1990), whose acquaintance I made during my stint as a journalist in Chennai, was a very colourful personality who exuded much warmth.. He wrote very artistically. His signature was unique: it looked like a drawing of his favourite instrument, the Veena.

The Indian Fine Arts Society awarded him the title of Sangeetha Kalasikhamani during its golden jubilee celebrations. He sent me a personal, handwritten invitation to the function. 

Unfortunately I was preoccupied on that day and I wrote to him regretting my inability to attend the function. He wrote back thanking me for the letter.

Balachander is no more. But his music lives on. Now listen to the Maestro. Happy Listening! 

Ending judicial self-propagation

BRP Bhaskar

Gulf Today

India has the dubious distinction of being the only country where judges appoint judges. This was not what the Constitution provided for. The Supreme Court converted the higher judiciary into a self-propagating entity, exercising its right to interpret the Constitution.

The Constitution envisaged a system of mutual checks and balances to keep the Executive, the Legislature and the Judiciary on the right path. It vested the power to appoint judges of the Supreme Court and the High Court in the President in consultation with the Chief Justice concerned. Since the President acts on the advice of the Council of Ministers, the Prime Minister’s was the last word.

The Supreme Court reordered things through three judgments, delivered between 1981 and 1998. It whittled down the Executive’s role in the appointment and transfer of judges and made the Chief Justice’s the last word. The act of aggrandisement did not provoke much criticism because few believed the government’s intentions were pure.

Judicial inroads into the realms of the Legislature and the Executive began when they became weak after the death of Prime Minister Jawaharlal Nehru. In the first post-Nehru election in 1967, the Congress retained power but it lacked the two-thirds majority in the Lok Sabha required to pass a constitutional amendment. That year, in the Golaknath case, the Supreme Court ruled that Parliament did not have the power to amend the fundamental rights chapter of the Constitution.

In several previous judgements the Court had held that Parliament had unfettered power to amend the Constitution. After leading the Congress to a resounding victory in the 1971 elections, Prime Minister Indira Gandhi amended the Constitution to reassert Parliament’s right which had been extinguished by the court.

The Judiciary now moved one step backward. In the Kesavananda Bharathi case, the Supreme Court conceded that Parliament could amend all parts of the Constitution, including the fundamental rights chapter. At the same time, by a 7-6 majority it imposed a restriction: the amendment should not alter the basic character or essential features of the Constitution. These features were not identified or defined.

In both the cases the court relied on borrowed concepts. To save previous amendments in the fundamental rights chapter which the court had upheld, the Golaknath judgement applied the US principle of prospective overruling. The basic character concept was taken from a Pakistani judgement. While the Pakistani court invented it to limit the power exercisable by a military dictator the Indian court applied it to restrict the authority of democratically elected governments.

When the time came to appoint a new Chief Justice, Indira Gandhi overlooked the seniority of three judges who were part of the majority in the Kesavananda Bharati case. This was widely seen as an attempt to discipline the judiciary. The superseded judges resigned.

In the last 65 years Parliament has amended the Constitution about 100 times. The number of times the Judiciary has amended it through the process of interpretation, as in the Golaknath and Kesavanand Bharati judgements, remains untabulated. The most daring of the judicial amendments came through the verdict in the Judges cases.

The first of these arose after Indira Gandhi returned to power following the collapse of the Janata government. In it, the Court conceded primacy to the Executive in processes relating to appointment and transfer of judges. In the second case, which came up when PV Narasimha Rao’s minority government was buying up majority support, the Court granted primacy to the Chief Justice of India but laid down that he should act in consultation with a collegium comprising his two seniormost colleagues.

The Court’s third verdict was the opinion it rendered in a Presidential reference in 1998, when AB Vajpayee was heading a coalition of more than a score of parties. While asserting the CJI’s primacy, it raised the strength of the judges’ collegium from two to four.   

Last August the Narendra Modi government pushed through the two houses of Parliament a bill to scrap the collegium and set up a National Judicial Appointments Commission with the CJI as the chairman and two seniormost judges of the Supreme Court, the Law Minister and two eminent persons, who will be nominated by a committee comprising the CJI, the Prime Minister and the Leader of the Opposition, as members.

The new system will end judicial self-propagation and provide the Judiciary and the Executive equal voice in the appointment of judges. Its constitutionality has been challenged in the Supreme Court. Hopefully, the Court will realise that the collegium system which it created is wholly undemocratic and the time has come to do away with it. -- Gulf Today, April 28, 2015.

Old photographs bring the light of other days around me

A set of photographs taken when I arrived at the Bombay regional office of United News of India in July 1973 after the agency's management revoked the order terminating my services following a five-day strike. The pictures above show Madhu V Shettye, President of the UNI Employees Union, Bombay, and colleagues welcoming me. (Madhu was a veteran journalist of Free Press Journal.) 

Inside the Bureau. On my right is S B Kolpe, President of the Indian Federation of Working Journalists, and  on my left is K K Duggal, who replaced me as Regional Manager at Bombay.

In December 1972 the management of UNI transferred me from New Delhi to Bombay. The UNI Employees Union, Delhi, was agitating for wage revision at the time. I did not involve myself in the Union’s work since, as News Editor, I was functioning in a supervisory capacity. However, as Vice-President of the Delhi Union of Journalists, I was active in the campaigns of the Indian Federation of Working Journalists.

UNI journalists got MPs to raise the wage revision issue in the two houses of Parliament. Based on information provided by the UNI management, Information and Btoadcasting Minister I K Gujral told Parliament the Union’s demand was unjustified as the news agency had implemented the Wage Board proposals the previous year. Under the law, the Union cannot raise a fresh wage demand for three years. The government’s response demoralized my colleagues at the Desk,who were looking forward to an improvement in their emoluments. I told them to challenge the minister’s statement which was not entirely correct. UNI had not implemented the Wage Board proposals fully. The agreement the management signed with the Union only provided for implementation of the pay scales proposed by the Board. The dearness allowance rates proposed by the Board were not being paid. Since the Wage Board proposals had not been fully implemented the UNI management could not invoke the clause about three-year bar. In the agreement signed with the management, the Union had, of course, agreed not to raise any new wage demand for three years. On its part, the management had agreed to revise the emoluments if the agency’s finances improved. Its finances had improved, and the management had an obligation to revise the emoluments in terms of this commitment.

Gujral was furious when he got the Union’s rejoinder to his statement. He blasted the General Manager for misleading him and rendering him liable to be hauled up for misleading Parliament. The General Manager knew he could no longer get the government to back his stand. He was aware that I had helped the Union to save the situation and decided to get me out of the way. The Union offered to raise the issue of my transfer. I advised them against it. I told the Secretary, George Mathew, that the management could not now avoid wage revision and the Union should not provide it an opportunity to bargain by taking up the issue of my transfer.

Having worked closely with the General Manager for more than four years, I had a fair idea of how his mind worked. I knew he was sending me to Bombay since there was a rival UNI Employees Union there. I was ready to face more trouble from the management. When I asked for a week’s leave to visit my family, which was still in Delhi, the management decided to strike. Within an hour of arrival at my Delhi residence, a UNI messenger delivered the sack order. It simply said “it has been decided to terminate your services, which is done herewith”.  An hour later T. P. Alexander, a reporter of the Bombay bureau, telephoned me and said K.K.Duggal had come from Delhi and taken charge of the office. Duggal, who had been News Editor before me, was flown to Bombay the previous night for the purpose.

“What happens to you?” asked Alex. “I have got a letter saying my services have been terminated,” I said.

“We are going on strike,” Alex said immediately. I told him I did not want colleagues in Bombay to stick their necks out. I would consult the Delhi union and the IFWJ, and there should be no precipitate action in the meantime, I said.

IFWJ Secretary General B R Vats and I met M K Ramamurthi, former IFWJ Secretary General who had left journalism and was practising at the Supreme Court.  He told us: “If the UNI union is capable of action, this is the time for it.”

The Delhi Union called an emergency general body meeting. Vats and Santosh Kumar, General Secretary, DUJ, conveyed Ramamurthi’s advice to the staff in spirited speeches in Hindi. While the meeting was still on, the Bombay Union announced it was going on strike immediately. The Delhi Union followed suit.

Santosh Kumar, in a report covering DUJ’s activities during the period May 1973 to January 1976, recorded as follows: “In July 1973,we faced another attack. This time, it was the management of the UNI which most arbitrarily terminated the services of another active trade unionist and a former vice-president of our Union, Shri B R P Bhaskar. The attack was met with confidence and strength. The executive held an emergency meeting and congratulated the employees of UNI –both journalists and non-journalists – who had gone on a lightning strike to protest against the medieval and despotic action of the UNI management. Our Union fully supported the strike and also organized a protest demonstration outside the UNI premises. At our request, the journalists and non-journalists of many establishments participated in the daily demonstration held outside the agency offices. The employees of the banks situated in the area also participated in the demonstration one evening, when it was heavily raining and we take the opportunity to specially thank the bank employees and their local organization, the Delhi State Bank EmployeesFederation, for the splendid demonstration of solidarity with us in time of need. Shri Rangarajan, Spl Correspondent of the UNI, played a notable role in this agitation.

“Ultimately, the UNI management relented and revoked the dismissal order served on Bhaskar.”

When the Delhi Union initially decided on a 24-hour strike, the management felt it could weather the storm. The following day the Union extended the strike by 48 hours and then by 72 hours.

On the very first day IFWJ President S B Kolpe and All India Newspaper Employees Federation General Secretary S Y Kolhatkar in a joint statement described the UNI management’s action as one of victimization for trade union activity and demanded that it be withdrawn. Shashi Bhushan, MP from Madhya Pradesh, who happened to be in Bombay on that day, also issued a press statement. So did a host of local politicians including Muslim League MLA G M Banatwala.

Bombay PCC President Rajani Patel sent a telegram to Prime Minister Indira Gandhi asking her to intervene in the issue. Blitz Editor RK Karanjia visited the UNI Bombay bureau to express solidarity and dealt with the issue in his column in the next issue of the weekly.

While the strike was on, the Maharashtra Union of Journalist met at Pune for its annual conference. Chief Minister V P Naik, who inaugurated the conference, condemned the UNI management’s action and said the state government would not let the agency get away with it. State Minister for Information Sharad Pawar who was the chief guest on the second day also made a similar declaration. The MUJ designated the following Friday as UNI Day and held out threat of a statewide newspaper strike. The newspapers which are owners of the agency rarely take interest in its affairs. They were forced to sit up and take notice when S R Kulkarni, President of the All India Port and Dock Workers Federation, said dock workers would refuse to handle newspaper consignments of the newspapers which are on the board of directors of UNI if the sack order was not withdrawn.

On the fifth day the UNI management contacted Vats and sought IFWJ’s help to settle the issue. It offered to withdraw the sack order but wanted me to accept transfer to another centre. The management gave me a list of six centres to choose from. They were all in states where the chief ministers were displeased with UNI correspondents for one reason or another. From the list I picked Srinagar after making sure that N S Malik, who was then posted there, was ready to move. “If Iam going to get into trouble,” I told myself, “let it be in Jammu and Kashmir.”

What infuriated the trade union movement was the arbitrary nature of the management’s action. The termination notice mentioned no charges. Union Labour Minister K V Raghunatha Reddy asked the General Manager what was cause for action. He replied that the management had lost trust in me. He explained that the agency’s lawyer had advised against mentioning any charges since that would cast upon the management an obligation to hold an inquiry into the charges. Air India had dismissed a senior executive without citing any reason and the Supreme Court had upheld the airline management’s stand that it could not keep a person whom it did not trust in a key position.

In UNI, there was also a third Union -- in Kerala. It did not join the strike. Its President was Vayalar Ravi, MP. When I met Ravi later I asked why his union had stayed away. He said he was told by a senior UNI journalist that the issue had been resolved.

I had been with UNI for seven years at that ime, and that was more than I had spent in any institution previously. After my reinstatement I believed I had an obligation to stay on as a large number of colleagues, both journalists and non-journalists, had stuck their necks out for me. In the event I remained with the agency for a total of 18 years, nearly half of my working life. Since I enjoyed considerable professional freedom in the agency, the strained relationship with the management was not much of a problem. (A Facebook note prompted by a set of old photographs)

Opposition set to take on BJP

BRP Bhaskar

Gulf Today

India’s Opposition parties are gradually recovering from the impact of their stunning defeat at the hands of the Bharatiya Janata Party in last year’s Lok Sabha poll and trying to put their act together.

The BJP won an absolute majority in the lower house of Parliament on its own in the elections, thanks to the vigorous campaign run by its prime ministerial candidate Narendra Modi. In the later Assembly elections too he personally led the party’s campaign, chalking up a series of victories.

The party seized power for the first time in Haryana. Its spectacular performance in the Hindu-majority region of Muslim-majority Jammu and Kashmir compelled the largest party, the People’s Democratic Party, to accommodate it in the coalition government, also for the first time.

Only in Delhi state did the Modi magic fail. An unprecedented consolidation of non-BJP votes in favour of the Aam Aadmi Party there broke the party’s run of successes.

The Rashtriya Swayamsevak Sangh, which played a key role in the BJP’s election campaign, has since strengthened its hold by inducting some of its leaders into important position in the party and the government. Flush with power, some RSS-affiliated outfits have been making efforts to convert poor people belonging to the minority communities to Hinduism under a ghar wapasi (homecoming) programme, offering allurements.

Desecration of churches has been reported from several places, including Delhi. Government spokesmen have claimed that the attackers were thieves and that there was no religious motive. 

BJP members of Parliament have called upon Hindu women to produce more children. A leader of the Shiv Sena, the BJP’s partner in the Central as well as Maharashtra governments, recently called for sterilisation of members of the minority communities. Following criticism, he withdrew the statement.

While opposition parties have formally condemned such statements, there has been no organised resistance to Hindutva activists’ attempt to polarise society on communal lines. By and large the secular parties have been unwilling to confront the the BJP and its affiliates.

Last week, for the first time, the Opposition showed signs that it is ready to take them on.

The party that has suffered the most damage as a result of the BJP’s rise under Modi is the Congress, which had led the United Progressive Alliance government at the Centre for 10 years. It did not win enough seats in the new Lok Sabha for its leader to be recognised as the Leader of the Opposition.

In the Assembly elections that followed, the Congress lost power in Haryana, in Maharashtra, where it headed a coalition with the National Congress Party, and in Jammu and Kashmir, where it was a partner in the government headed by the J and K National Conference.

For long the country’s largest party, the Congress has now been pushed to the second position. Modi makes no secret of his dream of a Congress-free India.

Congress President Sonia Gandhi had made her son Rahul the party’s Vice-President in 2013 amid speculation that she would soon hand over the reins to him. As the party’s main campaigner, he earned the most criticism for the electoral reverses from inside as well as outside. With the party in a state of paralysis, the expected transition did not take place.

Last week Rahul Gandhi returned home after an eight-week sabbatical abroad. On Sunday he appeared with his mother at a farmers’ rally in Delhi to protest against the Modi government’s plan to turn over agricultural land to industries. This may well be the issue on which the Modi government faces the biggest challenge.

Also on Sunday the Communist Party of India-Marxist picked Sitaram Yechury as its General Secretary in place of Prakash Karat whose tenure saw a sharp decline in its fortunes. Yechury vowed to mobilise resistance to the BJP’s neoliberal policies and communal agenda.

Earlier this month six breakaway factions of the Janata Party, which was put together by eminent freedom-fighter Jayaprakash Narayan to challenge Indira Gandhi’s Emergency regime, announced their decision to reunite to take on the BJP. They include the Samajwadi Party, the ruling party of Uttar Pradesh, the Janata Dal (United), the ruling party of Bihar, and the Rashtriya Janata Dal, the Indian National Lok Dal and the Janata Dal (Secular), former ruling parties of Bihar, Haryana and Karnataka respectively.

In the Lok Sabha poll the BJP had established supremacy over these parties in their strongholds. They have come together to protect their turf.

The BJP recently conducted a membership campaign and claims it is now the world’s largest political party. The strength of a party cannot be measured only in terms of number of members. The opposition parties need to improve their working from the grassroots level upwards to pose an effective challenge to the resurgent BJP. --Gulf Today, Sharjah, April 21, 2015.

Action plan against NGOs

BRP Bhaskar
Gulf Today

Close on the heels of Prime Minister Narendra Modi’s open exhortation to the Judiciary to guard against “five-star activists”, the government last week launched a direct attack on Greenpeace, the global non-government organisation whose Indian chapter is spearheading the people’s campaign against some of his pet projects which endangers life and livelihood of the poor.

Modi delivered his warning against activists at a conference of Chief Justices and Chief Ministers, a periodical exercise aimed at sorting out matters of mutual concern to the Judiciary and the Executive.

The Judiciary, he said, should be cautious about delivering perception-driven verdicts, especially when perceptions were sourced from five-star activists.

Indira Jaising, a former Additional Solicitor-General, in a forthright response, said Modi seemed to be targeting his opponents and those critical of the development policies of the ruling dispensation. “The message for the Judiciary,” she added, “is: ‘Don’t mess with me or my development policies.’”

The attempt to intimidate the Judiciary into taking an anti-activist line came a few weeks after the Delhi High Court quashed a government order which prevented Greenpeace campaigner Priya S Pillai from boarding a flight to London. Her mission was to draw the attention of British parliamentarians to a mega project of a UK-based company which threatens to destroy the environment and uproot tribes in a forest area.

Last week the government launched a fresh attack on Greenpeace. This time it sought not to restrain an individual activist but to immobilise the entire organisation. It suspended Greenpeace India’s licence to receive remittances from abroad for six months and blocked its bank accounts.

Some of the government’s allegations against Greenpeace were couched in vague terms. For instance, it accused the NGO of campaigning, protesting and lobbying against the government policies and attempting to delay and obstruct energy plans. One charge was downright frivolous: it accused the NGO of holding talks with the Aam Admi Party, the ruling party of Delhi state. Another was hilarious: it said the NGO had placed a full-page anti-nuclear colour advertisement with a sarcasm-laden header in a leading English daily.

Greenpeace India accused the government of conducting a smear campaign against it and vowed to continue campaigning on issues fearlessly. It also said it would challenge the government order in court.

Following a Supreme Court directive, the Central Bureau of Investigation wrote to all state governments in 2013 seeking information on non-government organisations registered with them. Not all of them replied.

Based on the replies received the CBI estimated that there were about two million NGOs in the country. Uttar Pradesh topped the list with more than half a million and Kerala came next with about 369,000. Most of them are actually voluntary organisations engaged in social work with grants from the government and meekly toe the official line.

Unlike them, the Indian chapter of Greenpeace, formed in 2001, is an advocacy group which seeks changes in policies detrimental to the interests of the people, especially the poor, and provides constructive leadership to grassroots-level campaigns against disastrous policies pursued by the government. Since 2010, it has been promoting sustainable agricultural projects and solar-based energy models.

Former Delhi University professor Achin Vinaik, prominent environmentalist Ashish Kothari, leading lawyer Vrinda Grover and G. Gautama of the Chennai-based Krishnamurthi Foundation are among the members of Greenpeace India’s executive committee.

Greenpeace India receives funds from abroad but local donations finance most of its activities. It spent about Rs335 million in 2013. Of this, Rs200 million came from local donations. Foreign grants amounted to Rs132 million. Greenpeace accepts donations only from individuals and foundations. It does not accept donations from governments and corporate entities.

The hunt is unlikely to stop with Greenpeace. Home Ministry officials were ready with an action plan against a whole range of NGOs even before Modi took office. The day before he took oath as Prime Minister, a Delhi newspaper reported that good days may be over for NGOs operating in sectors like participatory democracy, advocacy, action research, innovative communication, inclusiveness etc.

It quoted sources as saying the Home Ministry’s Foreigners Division was tightening the noose around NGOs and that those who organised workshops on regulatory frameworks, developing communication strategies, people’s participation, policy analysis etc were being screened. Modi couldn’t have asked for more. --Gulf Today, Sharjah, April 14, 2015.

A law unto itself

BRP Bhaskar
Gulf Today

For 12 years the Gujarat government, under Narendra Modi, relentlessly sought to enact a draconian law ostensibly to combat terrorism.

But the Centre – first the Bharatiya Janata Party-led government of Atal Behari Vajpayee and then the Congress-led government of Manmohan Singh – blocked assent to the measure.

Last week, the State Assembly passed the Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill for the fourth time.

With Modi in the Prime Minister’s chair, it may now be cleared by the Centre.

Two high-ranking police apologists, former Central Bureau of Investigation Director RK Raghavan and former Maharashtra police chief D. Sivanandan, immediately commended the measure publicly.

They conceded it was not perfect but wanted it to be viewed “as a piece that would hone itself over the years in the hands of those in authority.”

But the history of India’s black laws and the record of the Gujarat police leave no room for optimism.

When the Centre returned the bill to the state for the second time, it had suggested changes in three clauses.

However, Modi got the Assembly to pass it again without any change.

In their laboured defence of GCTOC, Raghavan and Sivanandan did not explain why the state wants a separate law to deal with terrorism when it can use the laws enacted by the Cenbtre from time to time.

First, there was the Terrorist and Disruptive Activities (Prevention) Act (TADA) of 1985, which was in force for 10 years before it was allowed to lapse in view of strong public criticism.

In 2002 the Vajpayee government enacted the Prevention of Terrorism Act.

The first Manmohan Singh government repealed POTA but incorporated some of its harsh features in the Unlawful Activities Prevent Act, brought in to check threats to the nation’s sovereignty and integrity 40 years earlier.

Many of the provisions of the Gujarat law are copied from the Maharashtra Control of Organised Crime Act (MCOCA), enacted in 1999 to deal with gangsterism in Mumbai.

It was made applicable to Delhi in 2002.

An official committee which reviewed the working of MCOCA found that on an average about 40 cases were registered under it each year and six or seven arrests were made in each case.

Only a small number of persons hauled up under it belonged to minority communities.

The fond hope of Raghavan and Sivanandan about Gujarat police patterning themselves after their Maharashtra counterparts is unsustainable.

A National Human Rights Commission study found that Gujarat accounted for as many as 19,000 of the 65,000 TADA cases although there was no significant militant activity in the state during the decade that the law was in force.

Modi, of course, bears no responsibility for the misuse of TADA in Gujarat since he became Chief Minister only in 2001.

But he cannot be absolved of blame for the misuse of POTA under his watch.

According to Dr Mukul Sinha, an advocate, in the wake of the communal riots of 2002, the state government used POTA to perpetuate the communal divide.

In all but one of the 287 POTA cases the accused were Muslims.

The lone exception was a case against Sikhs.

Gujarat police officials were involved in several cases of fake encounters and illegal snooping.

Coinciding with Modi’s rise on the national stage the noose around their necks has loosened.

But the Supreme Court’s damning conclusion that the state police implicated innocent persons in the Surat blast and Akshardham encounter cases cannot be brushed under the carpet.

The police love black laws because they make things easy for them.

Recognising the police’s propensity to extract confessions from those in custody, the colonial regime made them inadmissible as evidence in courts, and that is still the law of the land.

However, the black laws allow such confessions as evidence, permit tapping of telephones and provide a time-frame of 180 days, instead of the normal 90, to file charge-sheets.

They also make it hard for the accused to get bail.

There is nothing to prove that black laws have a deterrent effect.

On the contrary, there is evidence to show that they are counterproductive.

No charges were framed against 18,708 of the 76,166 persons on whom TADA was slapped till 1994, and only four per cent of those charged were found guilty.

As the well-known human rights organisation People’s Union for Civil Liberties has pointed out, such laws are actually tools of state terrorism. -- Gulf Today, Sharjah, April 7, 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.

Problems of affirmative action

BRP Bhaskar

Gulf Today

The Supreme Court recently struck down the Centre’s decision to place the powerful Jat community of northern India in the “Other Backward Classes” category to make its members eligible for reservation in the services and in educational institutions. The decision was taken by the Congress-led United Progressive Alliance government last year with an eye to the Lok Sabha poll.

Also last year the Congress-led government of Maharashtra, through an ordinance, gave the powerful Maratha community of the state and the Muslims reservation of 16 per cent and five per cent respectively. The Bombay high court, acting on a writ petition, stayed the decision, pending detailed scrutiny. The BJP-led state government, which came to power last October, scrapped reservation for Muslims but retained it for the Marathas.

Reservation in educational institutions and government service for socially disadvantaged communities, introduced by Shahuji Maharaj, who was Maharaja of Kolhapur from 1900 to 1922, is the first known instance of affirmative action in the world. Under pressure from the South Indian Liberal Federation, better known as the Justice Party, the British introduced reservation for non-Brahmins in the Madras presidency. Princely states like Baroda, Mysore and Travancore also took affirmative action.

Initially the beneficiaries of reservation were determined solely on the basis of caste since social disabilities were a direct consequence of the caste system. The Constitution adopted after the country became free limited such privileges to Dalits and Adivasis. Two Brahmin petitioners from Madras challenged reservation for non-Brahmins in the court on the ground that it is against the equality provision of the Constitution. The Supreme Court upheld their contention. Thereupon the Centre amended the Constitution to permit special provisions for socially and economically backward classes of people.

Successive governments at the Centre and in most northern states took no steps in pursuance of this provision until Prime Minister VP Singh decided in 1989 to grant 27 per cent reservation to other backward classes (OBCs) on the basis of the Mandal Commission report, which had been gathering dust for a decade. The decision led to widespread protests by students belonging to the so-called upper castes and the BJP brought the government down by withdrawing its support.

The Supreme Court upheld the extension of reservation to OBCs. It frowned on caste-based reservation but said caste could be a factor in determining the backwardness of a group. While deciding other related cases, it set a 50 per cent ceiling on reservations and ordered exclusion of the creamy layer, comprising second generation of families which have benefited from reservation and families with incomes above a prescribed limit.

There are no data to determine the level of backwardness of any group. Since collection of data on caste was stopped after the 1931 census, even the number of persons belonging to different caste groups is not known. Following widespread demand, the UPA government ordered a caste count but its results have not been published.

In the absence of reliable data, it has been easy for leaders of caste organisations, which serve as vote banks, to make exaggerated claims either to secure benefits for themselves or to deny them to others. The grant of reservation to Jats, who are a major force in the politics of half a dozen states, and to Marathas, who have dominated Maharashtra politics since the state’s formation in 1960 and provided more than half of its 18 chief ministers, are examples of wrong decisions taken to appease large groups.

While reservation has helped disadvantaged groups to move forward, few communities have reached the level where they can do without the crutch. The primary responsibility for this rests on the lack of sincerity of the bureaucracy, which is still dominated by erstwhile caste supremacists.

In Tamil Nadu, where reservation has been in force for nine decades, Dalits have made remarkable progress by taking advantage of reservation in educational institutions, but intermediate castes which have achieved a dominant position through the anti-Brahmin Dravidian movement are denying them a legitimate share in the power structure.

The Judiciary is one limb of the state which has not come under the affirmative action regime. Some of its decisions have attracted criticism from supporters of reservation policy.

There is a legitimate fear among the forward castes that the beneficiaries of reservation may seek to perpetuate it. The remedy for the problem lies in gathering hard data periodically and progressively reducing the reservation quota of each beneficiary group in keeping with the social and educational progress it has achieved. -- Gulf Today, Sharjah, March 24, 2015.

Coal block corruption

BRP Bhaskar
Gulf Today

A Delhi special court last week asked former Prime Minister Manmohan Singh to appear before it next month, along with industrialist Kumar Mangalam Birla, to answer charges of conspiracy and impropriety in coal block allocations. Is this a case of upholding the majesty of law? Or is it one of judicial activism? Time alone can tell.

The coal scam came to light three years ago when the Comptroller and Auditor General reported that during 2004-09 the government had allocated coal blocks to various companies without competitive bidding. He estimated that the government’s inept handling gave the companies an estimated windfall gain of Rs10,673 billion. He later scaled down the figure to Rs1,856 billion.

The first Congress-led United Progressive Alliance government was in power at the time and Prime Minister Manmohan Singh himself was in charge of the Coal ministry for a while. Acting on a complaint filed by the Bharatiya Janata Party, then in the opposition, the Central Vigilance Commission directed the Central Bureau of Investigation to probe the matter. The CBI registered first information reports against a dozen companies and, apart from company officials, some officers, including Coal Secretary PC Parakh, were cited as accused.

Last year the Supreme Court ordered the setting up of a special CBI court to hear the coal scam cases and appointed a special prosecutor to conduct them. It also cancelled all but four of the 218 coal blocks allotted since 1993, covering the periods of Prime Ministers PV Narasimha Rao (Congress), AB Vajpayee (BJP), and HD Deva Gowda and IK Gujral (both Janata Dal).

The CBI was on the point of closing the case relating to Hindalco Industries Limited and its chairman Kumar Mangalam Birla when special court judge Bharat Parashar asked it to record the statement of Manmohan Singh, who was holding charge of the ministry when the company was allotted coal block. Accordingly, CBI officials interrogated him at his residence and filed a status report.

Former CBI director RK Raghavan said the judge’s order reaffirmed the position that a Prime Minister – in office or outside – had no immunity from criminal prosecution. That a Prime Minister is not above the law was established years ago when Narasimha Rao faced three criminal cases, all of which were conducted by the CBI. Trial courts acquitted him in two cases for want of evidence. In the third, relating to bribing of MPs to buy support for his minority government during the voting on a no-confidence motion, the trial court found him guilty and sentenced him to three years’ rigorous imprisonment and a fine of Rs100,000. On appeal the high court set aside the conviction.

While the principle of supremacy of law has thus been asserted, there is room to doubt the reliability of the legal processes.

Created in 1963, the CBI traces its origin to the Special Police Establishment which India inherited from the British regime. It established an early reputation with its success in some sensational cases in which the role of the state police was suspect. However, in sensitive cases, like the Bofors scandal of Rajiv Gandhi’s time, it too failed miserably.

In 2013, on finding that the CBI had amended a coal block case affidavit at the instance of the Law Minister, Justice RM Lodha of the Supreme Court dubbed it “a caged parrot”. The court thereafter took certain steps to help it to function without political interference. However, few believe it is now a free bird.

There is something curious about the coal block cases. The CAG only accused the government of inefficiency. He did not allege corruption.

The conspiracy charge levelled against Manmohan Singh rests on the CBI report about a meeting between him and Birla before his firm was allotted the coal block. Neither the CAG nor the CBI has suggested that Manmohan Singh derived financial benefit from the allocation or that there was any quid pro quo.

Former Confederation of Indian Industry president Adi Godrej expressed surprise at the citing of Manmohan Singh and Birla as accused on the basis of their meeting. “It is not uncommon for senior industrialists to meet a minister or even the Prime Minister when an important matter needs to be discussed,” he said in a television interview. “If you keep summoning everybody as an accused, businesses will get disheartened and wouldn’t want to invest in the country.” --Gulf Today, March 17, 2015.

Rape film touches a raw nerve

BRP Bhaskar
Gulf Today

The cry of a young woman who fought back a gang of sexual predators in a Delhi bus on a cold night two years ago is reverberating throughout the world again, thanks to an hour-long documentary.

News reports of the gangrape outrage in India prompted Leslee Udwin, maker of the award-winning British film East is East, which deals with the life of South Asian immigrants in London, to confront her own past. A rape survivor, she had kept her teenage experience a secret and harboured a sense of guilt for decades. She came to India to find an answer to the question why men rape. The documentary, “India’s Daughter”, is the result of her effort.

The film was to be released on BBC 4 and the Indian channel NDTV 24x7 and shown at various other countries on March 8, International Women’s Day. Clips from the documentary and news reports about its contents alarmed the Narendra Modi government, which is already having an image problem. A commercial rival of NDTV launched a virulent campaign against the documentary, and the government, in a kneejerk response, banned the documentary without even seeing it.

On a plea by the government, a Delhi court issued an injunction restraining channels and websites from showing the film, also without seeing it. The BBC responded by telecasting the documentary immediately. Within minutes it was on YouTube too.

Bowing to the Delhi court order and BBC’s copyright claim, YouTube blocked the film but it kept reappearing as intrepid Netizens kept posting it again and again.

Home Minister Rajnath Singh asked the External Affairs Ministry to alert Indian missions abroad to prevent the exhibition of the film in other countries. Few foreign governments obliged.

As it happened, the government could scuttle only the NDTV telecast. The channel left the screen blank during the hour set for the telecast.  

The documentary divided Indian political parties and civil society.  The government described the documentary as part of an attempt to tarnish India’s image. It said the interviews with the accused and their lawyers included in it were objectionable as the legal processes in the rape case were still not over.

Kavita Krishnan, Secretary, All India Progressive Women’s Association, who is one of the persons Leslee Udwin interviewed for the film, rejected the government’s arguments for banning the film but said it did not address the problem of rape culture. A group of women activists, led by well-known lawyer Indira Jaising, while opposing the ban, wanted its screening to be delayed until the legal processes are completed.

The public outrage over the gangrape had forced the government to refer the case to a fast-track court. Within nine months of the crime, four accused were sentenced to death. This was a record in rape trials. The high court disposed of the convicts’ appeals in just six months, which, too, was a record.

Fast-tracking ended there. The convicts’ appeals against the high court judgement confirming the death sentence have been pending before the Supreme Court now for a year.

The argument that telecast of the film before completion of the legal processes may prejudice the rights of the victim and the convicts is based on a sound principle. However, it is disingenuous to suggest that it may influence the Supreme Court, which has stated that pendency of a matter is no bar on intellectual debate.

The anti-women statements of Mukesh Singh, an unrepentant convict, and ML Sharma and AP Singh, the defence lawyers, in the documentary touched a raw nerve. All three blamed the victim for her tragic end. Singh said on camera that he would burn his daughter alive if she had sex outside marriage.

The Bar Council of India has asked Sharma and Singh to show cause within three weeks why disciplinary action should not be taken against them for their misogynistic remarks.

Official statistics show that sex crimes are on the rise and the state is failing to send the culprits to jail. Rape cases in Delhi shot up from 706 in 2012 to 1,646 in 2013 and more than 1,789 in 2014, molestation cases from 727 to 3,515 and to more than 3,674, and lewd taunt cases from 236 to 916 and to more than 1,092. Courts returned a guilty verdict only in 6,892 of the 25,386 rape cases decided in India in 2013.

“Our heads hang in shame,” said Prime Minister Narendra Modi in a Women’s Day speech. That statement explains the government’s ham-handed efforts to ban the documentary.--Gulf Today, Sharjah, March 10, 2015

Western media's doublethink on crimes against women

Reproduced below (in italics) is a message I received today from a former media colleague, who is now working abroad, in the context of the controversy generated by the BBC documentary ‘India’s Daughter’:

Look at it from the perspective of global media. Why wouldn't the BBC do a similar interview with a British rapist? One of these men could be fitting subject: http://www.telegraph.co.uk/news/uknews/crime/11443868/300-victims-groomed-and-assaulted-by-Oxfordshire-gangs-report-finds.html
Or they wouldn't have to go far for this: http://www.theguardian.com/media/2013/may/30/bbc-staff-child-sex-abuse-allegations

They could go the US and do an interview with a college rapist. The most dangerous place for a woman is not the streets of Delhi, but US college campuses. One in five women students are raped during their college career. http://www.gillibrand.senate.gov/campus-sexual-assault-stats

When US media -- and activists -- denounce India as a society of violence towards women, what they are trying to do is divert attention away from the US situation to India (and make themselves feel better by venting against Indians). After all, the college rapists are not hoodlums from the ghettos, but the brothers, sons, nephews and cousins of the media and social elite and their friends and house guests. Would they, in any case, want to taint with a broad brush the student population made up of people like their own.

Street harassment of women is quite widespread in the US, too. http://www.npr.org/2014/11/01/360494480/woman-in-street-harassment-video-i-do-not-feel-safe-right-now
But does the western media treat it the way they do harassment in India?

And US politicians? Todd Aiken, a US Congressman said there are legitimate rapes. http://www.washingtonpost.com/blogs/the-fix/wp/2012/08/19/todd-akin-gop-senate-candidate-legitimate-rape-rarely-causes-pregnancy/

Richard Mourdock, a Republican Senate candidate, said that rape and rape-induced pregnancies are part of God's (I presume he means the Abrahamic God) plan.

(No, they didn't belong to an Indian Khap Panchayat but were members of a mainstream US party -- not even on the fringe, but with wide party base.)

Indian media and civil society have done an excellent job of covering and violence against women in their society. Can that be said of the US media and civil society -- if you compare them to their attitudes towards similar problems in the US and in India, and how they and Indian media cover and condemn the issues in their respective countries.

When was the last time an Indian newspaper wrote a caustic editorial on rapes on US campuses or British rapes of children?

I am not denying the problems and in no way suggesting that they be hushed up -- the very active Indian media and civil society do an excellent job. I can't but notice, though, that western media is just trying to avoid criticizing their own by turning attention away from them. They don't need to raise conscience on this, when Indian society is doing a better job.

I am fully in agreement with my friend’s assessment that the Indian media has a better record of addressing the issue of crimes against women than its western counterparts. That, however, should not blind us to the fact Indian society is far more impervious to the idea of gender equality than western societies.

I have no hesitation to admit that, in my judgment, there is a good side to western media intrusions like ‘India’s Daughter’, whatever their motive. It is that they often handle the issue more professionally than our media.

As for the western media’s tendency to ignore similar developments in their own countries, the answer is to develop non-western international media institutions which will, hopefully, redress the imbalance. 

The chart below shows that the national outrage of December 2012 did not lead to a fall in the incidence of sex crimes in Delhi. On the contrary it shot up. 

Obviously we needed to be reminded of that horrendous crime, and the unchanged mindset of the criminals and their political and legal defenders. The BBC documentary has done that.