E D I T O R I A L P A G E |
Monday, October 19, 1998 |
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Judiciarys
wake-up call TWO contrasting views on the judiciary
enlivened what should have been a routine felicitation
function on Saturday. Chief Justice A.S. Anand powerfully
argued for financial autonomy for the judiciary so that
it could fill the large number of vacancies and thus
attempt the long-delayed pruning of the huge backlog. Issue
of transparency Weaknesses
in Indias civil defence system |
Denial
of right of free speech |
Judiciarys wake-up call TWO contrasting views on the judiciary enlivened what should have been a routine felicitation function on Saturday. Chief Justice A.S. Anand powerfully argued for financial autonomy for the judiciary so that it could fill the large number of vacancies and thus attempt the long-delayed pruning of the huge backlog. Union Minister Ram Jethmalani lending voice to the government feelings, sought a curb on judicial activism which had seen judges treading on unfamiliar grounds. He stressed the necessity for discipline through a recourse to a judicial commission. Strong views these, but needless to say the general public, suffering for long from prolonged judicial delay and government apathy, will fully support the formers demand. Chief Justice Anand wants the fund allocation for the judiciary to be included in the annual Plan document, meaning that the courts in the country should not be forced to petition the Ministry of Law every time for sanctioning new posts or filling existing vacancies. He has figures to back his case. India has an average of 11 judicial officers (from magistrates and sub-judges to those sitting in the apex court) for every one million population; this compares very unfavourably with the average judicial strength of around 100 in advanced countries. True, India is not a litigious country as the USA is, even though the southern states show a marked weakness for approaching a court even to settle inter-sect disputes over temple rituals. Yet, the number of judicial officers is ridiculously small, particularly so since as a people Indians are struggling to evolve standards of behaviour in political, financial, industrial and, of late, in ecological fields. As the Chief Justice has lamented, even when judges are appointed, there are no chambers for them to sit and hear cases! If Chief Justice Anand
unerringly exposed a persisting and wholly unhealthy
trend, Mr Jethmalani succumbed to the weakness of all
ruling parties (even if he does not belong to one).
Politicians in power dislike being challenged, and being
challenged in a court of law makes them very vulnerable.
However mighty they might be, they cannot ignore or ride
roughshod when handed down an adverse verdict. And
judicial activism, a code word for the immense popularity
and scope of public interest litigation (PIL), is about
the limit. Complaints from faceless men have sent
political czars to the doghouse; though no one has as yet
gone to jail, the fear of a term in a dingy cell has
started haunting some former ministers, who did only what
their predecessors did, but did it in these days of PIL.
No doubt Mr Jethmalani riled against judicial activism,
by which he meant judicial excesses. He got a response
immediately and it was not comforting. The Chief Justice
repeated once again that PIL had come to stay, it filled
an important gap and the results had been to partly
mitigate peoples suffering and to partly sensitise
the bureaucracy. He has three years to go, which is a
fairly long period for an activist Chief Justice to set
lasting traditions. And on Saturday the country heard
what shape they would take. |
No to crackers for a cause THIS evening over five lakh children belonging to 500 schools in the national Capital will not use crackers, the most favoured item among them during the festival of lights. They will sacrifice a major part of their joy for a noble cause: to highlight the plight of the children who work in the Rs 300-crore cracker industry, mainly located in Tamil Nadus Sivakasi area. The organisation behind this campaign, Say no to crackers, is the National Foundation of India (NFI) with the support of UNICEF (United Nations Childrens Fund). A Union Labour Ministry estimate has it that India has over 20 million children working to make a living, and a substantial number of them are engaged in the fireworks and match-making industry! The cracker industry is proving to be a two-edged weapon, harming the future of the countrys children as a whole. Its child employees work for 10 hours or more a day to give a few hours joy to their privileged counterparts on the occasion of Divali. In return, they get a measly remuneration, ranging between Rs 10 and Rs 25. The children, who serve as cheap labour for factory owners, work under pitiable conditions. In many units, a number of them are huddled together in a dingy room locked from outside. They are allowed to come out only when they have finished their quota of work! That they later on become victims of a number of serious diseases, including asthma, is obvious. The children who use the crackers for momentary pleasure are also not always lucky. Some of them lose their lives. Many of them lose their limbs and become incapacitated forever. The accidents during the use of crackers occur because most of the fireworks items are of a poor quality. When their ingredients arsenic, sulphur, magnesium, sodium, iron dust, aluminium dust, potassium chlorate, charcoal, etc are not used in scientifically permitted proportions, the crackers can prove to be dangerous products. The young participants in the NFIs laudable drive should take the crucial message not only to their own families over five lakh in all but also to all the homes in the areas they live to create a general awareness among the people about how the cracker industry is destroying the lives of children. Last year lakhs of school-children flooded the Prime Ministers Office with postcards carrying the message that they would not touch crackers while celebrating Divali to register their strong protest against the growing child labour menace in India despite a law in operation against it. Besides fireworks, there
are other hazardous areas where children constitute the
major part of the work-force. These include the bidi
industry, handloom units, glass works, zari and
embroidery units, gem and diamond cutting factories,
stone and slate quarries and construction projects. The
employers invariably argue that they provide these
unfortunate young people opportunities to supplement
their family income. But the truth lies somewhere else.
Children serve as cheap labour, making their products
more competitive, price-wise. No single factor can be
shown as being responsible for the prevalence of child
labour at a massive scale. According to one study, it is
the product of a combination of factors like general
poverty, unemployment, under-employment and low wages
which trace their roots in the unequal distribution of
the available resources. There is an element of public
apathy also. This is one reason why no political party
takes up the child labour problem with the seriousness it
deserves. One hopes the NFIs efforts, with the help
of school-going children, will compel the political
organisations to undertake the task of eliminating this
social disease with renewed vigour and enthusiasm. |
Taslima needs support THE demand for Ms Taslima Nasreens head by Muslim fundamentalists in Bangladesh has acquired a disturbing stridency. The self-appointed protectors of Islam appear to be in a nasty mood. In a way, Ms Nasreen herself is partly responsible for reviving the controversy by returning to Bangladesh after four years in exile. However, looking at the issue from her point of view, the controversial Bangladeshi writer had to make the difficult choice between opting for her own personal safety and returning home to be with her mother who is suffering from cancer. The fact that she chose to be with her mother to provide her emotional comfort even at the risk of being tried for having allegedly blasphemed Islam through her writings shows that the writer is a caring human being. Her return has only helped expose the true face of the fundamentalists who insist that she must die for demanding reforms in Muslim laws. They are neither good human beings nor good Muslims. They have chosen to ignore the basic teachings of Islam which gives primacy to forgiveness over punishment even for proven acts of disrespect to the faith. Even the most rabid Muslim would have changed his mind on seeking punishment for Ms Nasreen after her mothers appeal to all to forgive my daughter for offending the religious sentiments of Muslims. My daughter has promised to me that she will no more write anything which may hurt the sentiments of Muslims. Not surprisingly, the Islami Oikya Jote (Unity Front), which is spearheading the street movement against the feminist writer, has rejected the appeal of Ms Nasreens mother. What is surprising is the
strange silence of the intellectual class which had
raised its voice against the fundamentalists four years
ago. It is not only Ms Nasreen who needs the support of
all those who support the right to freedom of speech and
oppose all sheds of religious fundamentalism. The threat
to Salman Rushdies life has increased after Iran
officially distanced itself from the fatwa for his head.
It is only a matter of time before a similar fatwa may be
issued against the controversial Pakistani writer Ms
Tehmina Durrani. She has already ruffled the feathers of
the Pakistani elite by exposing the perverse conduct of
the so-called members of the aristocracy in her book
My Feudal Lord. In her latest work titled
Blasphemy she has taken on the
mullah-dominated establishment. The central character of
the book is a pir who practises perverse sex on minor
girls. It is a fictionalised account based on her
experience of the abominable goings-on at the so-called
centres of spiritual healing. Cannot these
religious hotheads among the principal religions in
India, Pakistan and Bangladesh be isolated by following
the example of the West which does not allow them to hold
civil society to ransom? |
Issue of transparency BUREAUCRATS are making it clear to the nation that, come hail or fair weather, it is they who run the government and intend to do so. Worse, they appear to be doing so with the connivance, or active encouragement, of a section of the political leadership. Mr Ram Jethmalani, Minister of Urban Affairs and Employment, took the innovative decision to make available to the people government files in his department on payment of a nominal fee of Rs 10. Nothing could be more transparent, and a government that is committed to an open and transparent system should have welcomed it as a trend setter. It can be argued that it was too radical a step for any minister individually to take, and the correct procedure would have been for the Cabinet to take a decision on it. But, then, the objection, if any, should have come from the Prime Minister, the political parties that are part of the government or support it from outside. However, had any of them done so they would have been caught on the wrong foot because Mr Ram Jethmalanis stand has been that secrecy breeds corruption and hence one way to minimise it, possibly end it, is to let the people examine the government files if they so wished. Incidentally, the National Agenda of the BJP-led coalition is committed to giving the people stable, honest, transparent and efficient government, capable of accomplishing all-round development. In order to suspend Mr Jethmalanis decision an extraordinary procedure was adopted. The Cabinet Secretary, Mr Prabhat Kumar, reportedly called for the file which contained the ministers decision, kept it in his custody and told the Special Secretary attached to the ministry that such a big decision could have far-reaching ramifications not only for the bureaucracy but also for the government, and that the decision could not simply be implemented without the prior approval of the government. In short, a decision by a minister holding Cabinet rank has been short-circuited by the Cabinet Secretary by issuing direct instructions to the Special Secretary over the head of the minister. Reportedly, the minister is stated to have seen the Prime Minister in this connection, with what results is not clear at the time of writing. The commitment in the National Agenda apart, successive governments have been promising a Bill on the peoples right to know. The Press Council prepared a model Bill on the subject. The HD Shourie Committee fine-tuned it. But the then Deve Gowda and Gujral governments were too short-lived to do anything about it. It is nobodys case that the people have the right to know every decision of the government or autonomous corporations. By and large those who have given a thought to the subject concede that sensitive defence, foreign relations and economic matters cannot be disclosed to the people. And the Constitution itself lays down that the advice tendered to the President by his Council of Ministers cannot be disclosed even to the courts. However, the judiciary has interpreted the constitutional provision to mean that while the actual decision cannot be disclosed to the courts, the materials on which the advice was tendered could be examined by them. The point to note is that the Ministry of Urban Affairs and Employment does not deal with anything sensitive. There are certain rules that have to be observed in dealing with land and other matters. The secrecy of this government by no means gets flouted by making the files available to the people, unless it be claimed that jiggery-pokery and corruption is the right of ministers and the bureaucrats dealing with urban affairs. Mr Ram Jethmalani is appalled by the extent of corruption prevailing in his department, and has been publicly giving vent to it from time to time. For instance, he is on record as saying that thousands and thousands of cases in which the DDA and other institutions are involved can be easily solved or struck off the record. He should have been patted on the back for finding an easy solution to a promise to which successive governments are committed. This principle should have been extended to other ministries such as human resources, education and information and broadcasting. As CEO, Mr S.S. Gill had claimed that the decisions of the Prasar Bharati were open to examination by anyone wishing to do so. It is a pity that a BJP-led government is seen to be involved in shunning the sunlight of publicity, which it has been well and truly said is the best disinfectant. Bureaucrats have a vested interest in secrecy. It is they who have been opposing changes in the outdated Official Secrets Act on one pretext or another, the most curious of which is that if files are open to public examination they cannot express their honest opinions, lest others should know about it. Guts and bureaucracy do not mix, certainly not in free India that is Bharat. In a society in which the bureaucrat-criminal-politician nexus dominates, secrecy becomes absolutely essential. But, then, winds of change are blowing across the country. At the grassroots level, there are agitations for open information and there have been effective agitations in Rajasthan and Madhya Pradesh. Thus peoples right to know may be delayed, but cannot be defected. Of course, the corrupt would fight a last-ditch battle, but it is for our rulers to take note of the simple fact that if their credibility is not to go down further, they must act before it is too late. It was the first Janata government that mooted the idea of amending the Official Secrets Act. An official committee examined the matter, but, interestingly, its report was kept a secret. Since then half-hearted promises of a freer society have been made. But, then, politicians and bureaucrats must know that they cannot fool all the people all the time. A refusal to change is bound to rebound on them. The time has come for
those wanting amendments in the Official Secrets Act and
on a new Freedom of Information Bill to renew their
pressure on the government to enact suitable laws without
delay. By resorting to devious ways in withholding
information to the people, the Vajpayee government is
opening itself to ridicule and contempt. |
Weaknesses in Indias civil
defence system WITH the theatre of war no longer limited to battlefields and with civilian targets becoming even more vulnerable, it becomes evident that civil defence back-up efforts to minimise the loss of lives and property and to ensure normal activities and industrial production will assume crucial significance in any future war. In this context, it is incredible that Switzerland, the worlds most peaceful nation which hosts most of the conferences from time to time, is fully prepared for war and that too against a nuclear war. Keeping in view its geopolitical situation Switzerland enjoys the protection of both nuclear and non-nuclear powers. Yet, seeing the hazardous implications of the growing nuclear menace, it does not want to take any chance. On the contrary, India, which has already fought four wars and is under constant pressure to keep vigilance on its borders, is completely lacking in conventional civil defence, what to talk of nuclear civil defence. Of late, all the nuclear and most of the non-nuclear countries have made provisions in their budgets for turning to nuclear defence. They have roads, shelters, railways and industrial units deep inside the surface so that their normal production, mobility, communication system and morale may not suffer during the war. In the USA, shelters against a nuclear attack are there for more than 75 per cent of the population with supplies capable of lasting more than a week. Even the United Kingdom, a pioneer in the civil defence set-up, has started reorienting its civil protection units to meet the present-day nuclear threat, with its focus on shelter construction and evacuation arrangements. Similar is the case with other European, including Scandinavian, countries. As regards the civil defence campaign in China involving the use of atomic weapons, a 383-page handbook containing the necessary precautions has been published. China has constructed tunnel complexes both in the rural and urban areas. Emergency food stocks are also being strategically located, and schemes are in progress to build up substantial grain reserves. Evacuation plans for non-essential persons have been drawn up and are put to tests at short notice. In a discussion between a former French Premier and his Chinese guide, the latter disclosed that they were not worried because there was sheltering arrangement for their whole population in the event of a nuclear crisis. Thus, broadly taking into view the measures against nuclear attacks in other parts of the world, it is desirable that India should also build up its civil defence system against this growing menace. Field Marshal Lord Montgoomery was once asked in the House of Commons about the safest place in the event of an atom bomb attack. Nearest to the enemy, he said. Nuclear proliferation in South Asia and the Indian Ocean region has heightened the overall risk of nuclear war, adding an unpredictable dimension to this danger in the region. This makes it grossly imperative for India to anticipate a broad spectrum of attacks conventional, biological, chemical, psychological and nuclear. But, unfortunately, Indias civil defence system is not geared to meeting any of the above eventualities in an effective manner. Although a blueprint of an evacuation plan has been drawn up by the Government of India to tackle the problem of sponsored evacuation, in a developing country like ours with uneducated and ill informed people regarding the nuclear fallout complications, there is bound to be unsponsored evacuation of an unimaginable magnitude in case any city is bombed. It happened in 1947 during Partition and latter when Pakistan attacked Kashmir immediately after Independence. As per information procured from the Peace Museum in Hiroshima, the atomic effect also causes short-circuiting of electric wires, there-by jamming radars, communication systems, computers and all modes of mechanical transport. This can make post-disaster evacuation completely impossible. The general public must be taught in all seriousness about the possibility of a nuclear attack. Even if elementary ways of ensuring protection from nuclear attacks are understood, it would serve its purpose. But this can be possible only if the existing civil defence plan is made nuclear-defence-oriented, so as to take protective measures in advance against a nuclear attack. The author is Reader,
Department of Defence and Strategic Studies, Punjabi
University, Patiala. |
UP Speaker gets surprise reprieve
THE Supreme Courts self-created doubts regarding the UP Speakers decision not to disqualify the defecting BSP MLAs who had saved Mr Kalyan Singhs government in October last year and its reference of the issue to a larger, Constitution Bench last fortnight fail, with respect, to convince. The head-on conflict between two members of the Bench Justice M. Srinivasan and Justice K.T. Thomas reflects, from one angle, a healthy and welcome trend in the corridors of a court that had, not very long ago, almost got into the habit of steamrollering its views onto the other branches of government. It is important for the court to encourage debate, even division, in its own ranks on issues concerning the nature of the polity and the future of the nation. An apex court that lacks freedom within not only cannot protect, but is itself a danger to, democracy outside as the experience of the Pakistan Supreme Court has shown. Dissents, wrote Prof P.K. Tripathi three decades ago, have played a great and essential role in the jurisprudence of democratic countries. They have kept majority opinions in their proper perspective by preventing them from being deified as expressions of perfect wisdom. They have assisted the emergence of new ideas, values and principles more appropriate for changed social conditions and an altered social consciousness. This is particularly true in the field of constitutional law, for constitutional law is the highest form of legal generality and abstraction where ideas, values and principles attain maximum operational leverage. Some of the most eminent men in the community of judges, says Prof Tripathi (a former Law Commissioner and one of the most learned of constitutional thinkers) have also been the ace dissenters of their times. Having penned irreconcilably contradictory opinions neither of which is the law (since the matter has been referred to a larger Bench), both Justice Srinivasan and Justice Thomas can legitimately claim to be dissenters. So also the third, presiding member of the Bench, Chief Justice M.M. Punchhi (now retired), who has chosen not to side with either and to raise, briefly, certain questions of his own without giving his mind. Yet, it is difficult not to feel disappointed at the outcome. The UP case constitutes perhaps the most blatant example in recent history of abuse of power by a Speaker to defeat the provisions of the anti-defection law and to sustain his partys government on the strength of defection. Apart from all else, the enormity of the Speakers conduct in sitting over Ms Mayawatis petition for disqualification of the 12 defecting BSP MLAs for almost half a year five months to be precise is beyond condonation. The Supreme Courts failure to settle the issue compounds, in a way, the hurt caused to the Constitution. It is rather ironical, in this context, for Justice Srinivasan to hold that it is absolutely necessary for every Speaker to fix a time schedule for disposal of disqualification proceedings and to lay down an outer limit of three weeks (repeat, three weeks not months) for the purpose. And for the Chief Justice to describe, with some felicity, the Speaker as the time keeper on the House. Justice Srinivasans prelude to his opinion on the merits is also rather curious. The anti-defection law, says the learned Judge, has not had the desired effect and the time for scrapping it has come. While enacting a new law regard should be had to the fact that political parties, as they exist and operate today, hardly deserve any protection against defection by their members. The parties are neither based on principle, ideologies or programmes nor run on democratic lines. As such, there can be no question of any principle being involved in either defecting or staying with a party. The events in the UP Assembly, he says, after the elections of 1996 justify this view. Having said this, the learned Judge proceeds to uphold the Speakers action both technically and substantially on the merits. There can be absolutely no doubt, declares the other Judge, Justice Thomas, that no authority vested with jurisdiction to decide the question could ever have reached such a conclusion that the Speaker had reached. It was a perverse conclusion, overlooking the formidable circumstance that the number of BSP MLAs supporting the Kalyan Singh government had never approached the figure of 23. That was the minimum number required to constitute a split in the BSP since the total strength of Ms Mayawatis flock of MLAs was 68. When, says the Judge, the respondents could never even mention the names of those 23 MLAs at any time in spite of the Speaker granting (repeated) opportunities to them for that purpose, including the last opportunity on Feb 9, 1998, it is impossible for the court to accept the ipse dixit of the Speaker that the BSP had split and one-third of its MLAs had broken away. To accept the Speakers ipse dixit in such a situation, holds Justice Thomas, citing a hypothetical example not very different from the UP case, would in fact be preposterous and revolting to the judicial conscience and would toll the death knell of the philosophy enshrined in the anti-defection law. It is, at the bottom of it
all, an immensely practical conclusion, a conclusion
which at the same time remains firmly within the
boundaries of conventional constitutional adjudication.
And one can only wish, though wishes are not horses for
judges to ride, that it were the opinion of the court as
a whole. |
Few buyers as clouds dampen Divali mood
I am bit confused whether I should rightaway start with some of the Divali crackers or use them at the tailend. Impatience gets the better of me and so I start with how from the last couple of days, building up since Wednesday, cars are seen going round and round in government colonies. And from them packets and boxes and crates are seen being off-loaded, to be deposited at addresses on those long lists, clutched firmly in the hand of those two or three accompanying the maal. It is a sight to see how some particular houses seem more prone towards this offloading exercise. For very obvious reasons, of course. But in the cliched jargon this seems just the tip of the iceberg, for if witnesses are to be believed then greater gifts reach the doorsteps of some of those politicians and those junior rung officers. Variations in their size and worth, depending on the very designation and department of the officer. But besides the offloading at these junctures Divali mood seems yet to pick up for the average amongst us. Till Saturday evening the weather condition was bad. There seemed few buyers, fewer enthusiasm and feeble sales. In fact some of the shopkeepers I spoke to sounded nervous and disappointed and were hoping that the situation would improve by Sunday. The recent income-tax raids on the premises of some fashion designers have brought about dampness in that sphere too. These raids could have an effect on the coming fashion shows, for as the season opens all that glitters would draw attention. And glitter it must if the show is to draw attention. Moving along, this Divali will also be bleak for the families of those dropsy victims, dying in the last two months. Now lets see how many of these politicians go and visit those families. Visit or no visit they shouldnt offer them adulterated sweetmeats for in all these Divali distractions who is there to keep track whether the oil, maida, khoya, milk and sweets are safe for consumption or potent enough to kill the remaining us. Amartya Sen I am far from economics, so never really had the opportunity of having heard or met Nobel laureate Professor Amartya Sen. But the first time I heard about him was several years back, at one of the receptions hosted by OP Jain, at the IIC lawns, for Sanskriti Award winners. Meet the famous Bengali writer Nabonita Dev Sen, the former spouse of the well known economist Amartya Sen...... said a senior colleague as he took to introducing us. It is not that she had won the Sanskriti Award for that year but probably had been invited as a special guest. Tall, slim, spectacled, simply dressed, with even a simpler hairstyle (I think she had loosely tied back her hair. Or was it a ponytail?) and although she didnt speak much but looked very observant. All that I could extract from her was that she was teaching English Literature at Jadavpur University. And I think it is at the same venue that I met their (Nabonita and Amartyas) daughter Antara Dev Sen, a New Delhi-based journalist who is presently in Oxford, on a six month fellowship. Her younger sister has worked for Bengali cinema but one is not sure whether she is still pursuing that profession or has branched out. And sources state that from his second marriage Professor Sen has two more children and they probably live with him, in the UK. Talking to a cross section
of peopple academicians, bureaucrats, scientists
and of course, economists who know him and have
met him on several occasions one is simply taken back by
the genuine praise they shower on him to be precise on
the totality of his works which places special thrust on
the man living on the edge. |
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