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Uncertainty in UP Judicial activism |
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Name game
Triumph of justice
Mera pen
Stop vote-bank politics to save Assam Disarming for democracy Delhi Durbar
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Uncertainty in UP UP Chief Minister Mulayam Singh Yadav finds himself in dire straits today. That his government, now gasping for breath, has had a dismal record particularly on the law and order front needs no further proof after the unearthing of what had been going on in Noida’s ‘Khooni Kothi’ for a long time. The withdrawal of support to it, first by Mr Ajit Singh’s Rashtriya Lok Dal and, then, by the Congress shows that the ruling Samajwadi Party’s company is no longer considered advantageous. Though the 15-member Congress group’s support to the UP ministry from outside was inconsequential, its decision has strengthened the argument that Mr Yadav’s government has no moral right to continue. No doubt, it has a sufficient number of MLAs on its side to carry on. The Mulayam Singh government still has the support of 204 members, though it needs only 197 legislators for its survival, as the total strength of the UP Assembly has got reduced to 391 from 402 because of two seats remaining vacant and nine BSP MLAs having been debarred from voting. But that is not as important as its image in the eyes of the public suffering a beating for some time. But the UP Chief Minister must be having sleepless nights these days because of the expected verdict of the Supreme Court on the status of the 40 former BSP legislators. The case may be decided anytime now and if they are disqualified that will mean the death of his government. The political situation in UP is such that the fight for power will be again between Mr Yadav’s SP and Ms Mayawati’s BSP. Though both are in the dock for different reasons, the Congress is unlikely to gain much because of its own weaknesses. Going by the recent municipal elections, the BJP may improve its position in the coming battle of the ballot, but the SP and the BSP are likely to emerge as the top performers again. This painful scenario may change only when voters discard the caste and community factors, the basic political determinants in the state so far. |
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Judicial activism WHEN all judges of the Punjab and Haryana High Court had gone on strike against the then Chief Justice B.K.Roy, it was thought that this was about the worst incident to have ever happened in such a respected institution. But the record of impropriety seems to have been quickly broken, with a senior Judge of the Gujarat High Court allegedly abusing and beating up a fellow Judge. The incident is so bizarre that it appears to be almost unbelievable. Officially, all that has been said is that Justice B.J. Sethna “misbehaved” with Justice P.B. Majumdar. But the allegation is that the former not only abused Justice Majumdar but also dealt several fist blows in his stomach on January 11. The latter was on the verge of lodging an FIR but was persuaded by the Chief Justice of the Gujarat High Court not to do so. The seriousness of the matter can also be gauged from the fact that the then outgoing Chief Justice of India Y.K. Sabharwal had ordered the transfer of Justice Sethna to the Sikkim High Court. It will be an understatement to say that the incident has tarnished the reputation of the august institution. Justice Sethna is a senior judge who officiates in the absence of the Chief Justice. If a person of his calibre can stoop down to fisticuffs, can any High Court have the moral authority to advise anyone to maintain decorum and propriety? As if that were not enough, Justice Sethna has also reportedly written to the Supreme Court that he would rather resign than go to Sikkim. Apparently, things are very wrong and the Supreme Court must step in and limit the incalculable damage that has already been done. At the same time, it should also address the problem which precipitated the clash between the two judges. Last year, Justice Sethna had severely reprimanded Justice Majumdar’s son for appearing before his father’s court in violation of the Bar Council’s guidelines. This problem is quite common in several high courts. |
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Name game CHANGING Assam to “Asom” is a prime example of a needless exercise in rechristening that benefits nobody. There is no clear historical or cultural justification and the Assam Assembly’s resolution to change the name of the state can only go down as an exercise in exclusionary politics. At the least, it is a misguided attempt to appease an element of regional aspiration that finds expression in identity assertion. The name Assam is evidently not a crude anglicisation of an Indian name, like so many from Ootacamund to Calicut. Dada Saheb Phalke Award winner Bhupen Hazarika has stressed in his statement that it was a local name that existed since the 13th century. Assam has enough on its hands not to get into a wrangling about nomenclature. If it is not the United Liberation Front of Asom’s periodic shedding of blood, there are serious development issues to be addressed urgently. Mr Hazarika has been joined by several prominent Assamese, including NRIs, in urging the government not to change the name. There is no doubt, though, that questions about identity are emotional and people do not find it easy to dismiss them. After all, there is a sense of security and belonging in an identity that need not be worked for or “achieved” in the secular world. Personal accomplishments of whatever order, wealth, or a technology-enabled global network that can transcend geographical and other boundaries, never seem to be enough to completely eliminate this need for roots and an easy sense of belonging. It is important to recognise and accept this, even as state and society constantly endeavour to ensure that identities are not pitted against one another. The aim is to create a spirit of not just accommodation and tolerance, but one of celebrating, enjoying, and valuing diversity. |
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I shall be an autocrat: that’s my trade. And the good Lord will forgive me: that’s his.
— Catherine the Great |
Triumph of justice THE conviction of Manu Sharma to life imprisonment and two others to four years rigorous imprisonment by the Delhi High Court in the celebrated Jessica Lall case once again brings to the fore the problem of hostile witnesses. It is a typical case in which the police, the prosecution, the witnesses and the trial court made a mockery of the criminal justice system. It is only because of the persistent and relentless struggle by the media against the travesty of justice that the High Court took cognisance of the media reports and pressurised the Delhi Police into filing an appeal against the judgement. The manner in which many witnesses, one after the other, turned hostile and pulled the wool over the eyes of the lower court proved the extent of rot in the system. Even as their volte-face led to the collapse of the case, leading to the acquittal of all the accused in February last year, the media reports exposed the shoddy and scandalous nature of investigation and trial. Clearly, there is need for urgent course corrections in the interest of truth, fair play and jurisprudence. Shayan Munshi, the model-turned actor, was the key witness who made all the difference to the case. In his FIR, he claimed that he could easily recognise the man who shot model Jessica Lall for refusing to give him a drink in April 1999, in Tamarind Court, a Delhi restaurant owned by socialite Bina Ramani, in the presence of many influential people, including some top police officials. However, like many others, he was won over either by money, threat or coercion. After a sudden turnabout, he said: “I don’t recognise the man who shot Jessica. It is incorrect to suggest that the accused Manu Sharma is the same person… he was much taller…” He also invented the “two-weapon theory” to claim that one person had fired in the air and that another had shot Jessica and that he couldn’t recognise either. Worse, he insisted that since he could neither speak nor write in Hindi, he could not read the contents in the FIR and that he signed the statement to the police in good faith. But the same person, in a Tehelka sting operation, showed off his prowess in Hindi. He said he not only knew Hindi but also its dialects well by pointing out differences between Mumbaiya Hindi and Dilli Hindi and between Hindi and Urdu! Not surprisingly, the Delhi High Court Bench comprising Justice R.S. Sodhi and Justice P.K. Bhasin dubbed Shayan Munshi as a “liar”. It dumped his “two-weapon theory” and observed that it was a “concoction of the defence, a manipulation of evidence and a total lie at the instance of the accused”. If witnesses like Shayan, Karan Rajput and Shiv Das played foul with the system, the role of the trial court headed by Mr S.L. Bhayana, now elevated to the Delhi High Court, was no different. In his ruling, Justice Sodhi described Mr Bhayana’s reasoning for acquitting Manu Sharma as “strange, totally wrong, immature, and positively perverse”. He questioned the bona fides of his judgement saying it “suggests a hasty approach towards securing a particular end, namely the acquittals”. There is an erroneous impression that the trial court has no powers to ferret out the truth. While convicting Zahira Sheikh to a year’s prison term and a fine for her flip-flops in the Best Bakery case, the Supreme Court ruled in March last year that the trial court has “unlimited powers” under Section 311 Cr PC to play a “pro-active role”. It said the trial court could on its own accord examine witnesses and bring on record evidence from the point of view of the accused, the prosecution and orderly society. This shows that Mr Bhayana did not apply his mind to explore the truth. Significantly, while deciding on the case, the Delhi High Court had taken the unprecedented step of salvaging incriminating portions from the testimonies of even hostile witnesses. It has asked 32 of them to appear in the court on February 1 to explain why action should not be taken against them under Section 340 Cr PC for interfering with the administration of justice. If the court is not satisfied with their explanation, they will be prosecuted a la Zahira Sheikh. The maximum sentence for perjury is seven years jail. The High Court’s pro-active role in this regard is indeed commendable. Unfortunately, successive governments at the Centre have not acted upon the recommendations of the Law Commission and the Malimath Committee Report for witness protection. What happened to the Manmohan Singh Government’s proposal to amend the Cr PC and introduce a witness protection programme? If confessional statements of witnesses are mandatorily recorded before a magistrate, as also video-recorded, this will prevent them from turning hostile. It defies logic that statements recorded during investigation do not constitute evidence in a trial court. No wonder, this leaves the field wide open for witnesses to turn hostile. Given the political will, a comprehensive witness protection programme can be implemented in India emulating the practice that obtains in countries like the United States, Australia, Canada, South Africa, Portugal, The Netherlands, the Philippines and New Zealand. More important, the Chief Justice of India, Justice K.G. Balakrishnan, has said that witness protection is the need of the hour. Some headway can be made if the state protects witnesses — either by maintaining their anonymity or by preventing their physical and mental vulnerability to threats or coercion by the high and mighty before or during the trial. In Kartar Singh vs State of Punjab (1994), the Supreme Court upheld the validity of Sections 16 (2) and (3) of the Terrorist and Disruptive Activities (Prevention) Act (1987) which gave the discretion to the designated court to keep the identity and address of a witness secret upon certain contingencies; to hold the proceedings at a place to be decided by the court and to withhold the names and addresses of witnesses in its orders. The apex court held that the right of the accused to cross-examine the prosecution witnesses was not absolute but was subject to exceptions. It applied the same reasoning while upholding the validity of Section 30 of the Prevention of Terrorism Act (2002) in People’s Union of Civil Liberties vs Union of India (2003). In the Best Bakery case (2004), in the context of the collapse of the trial on account of witnesses turning hostile as a result of intimidation, the Supreme Court reiterated that “legislative measures to emphasise prohibition against tampering with witness, victim or informant, have become the imminent and inevitable need of the day.” In Neelam Katara vs Union of India (2003), though the Delhi High Court has laid down some guidelines for witness protection, the Law Commission says that they do not deal with how a witness’ identity can be kept confidential before or during the trial. In Bimal Kaur Khalsa (1988), the Full Bench of the Punjab and Haryana High Court provides for protection of the witnesses from the media but it does not deal with all aspects of the problem. These rulings underscore the imperative need for a comprehensive law on witness protection.n
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Mera pen
MY colleague Roopinder Singh and I have one thing in common — a passion for pens. For us, a pen is not just an instrument for writing. It is also a thing of beauty. Every time he had a new pen in his pocket, I would notice it, just as he would never fail to make a comment whenever I flaunted a new one. One day, while attending the editorial conference, my eyes naturally fell on a thick golden Sheaffer pen in his breast pocket. After the meeting, he handed over to me the pen so that I could feel its exquisite beauty. He even prompted me to write something with the pen. I felt delighted. I could easily make out that it was a vintage Sheaffer, which had not lost its golden lustre. Of course, I knew he had many beautiful pens. I wondered for how long he had been collecting pens because he was not old enough to have such a vintage collection. Unlike him, I could not boast of any vintage pen. The oldest I had was a Sheaffer, which my father gifted to me when I joined high school. I never parted with the pen, with which I appeared for all school and college examinations. It took years for me, a struggling journalist, to buy another Sheaffer after a petty thief took away from my bachelor’s den in Delhi my favourite pen and watch — a Favre Leuba — which my grandfather had worn before he departed this world. Roopinder disabused me of my belief that the expensive pen belonged to him when he told me that his fabulous collection actually belonged to his father Giani Gurdit Singh. How come he allowed him to use his fountain pens? Usually, connoisseurs of fountain pens never allow anyone else to use their prized possessions. Then, he let out the secret. Due to old age, the Giani could no longer hold a pen and write with it, though that had not impeded his work on the Guru Granth Sahib. So, he allowed his son to use them, instead. As Roopinder told me, the pen I was holding was his father’s most favourite. Was it with this pen that he wrote Mera Pind, one of the greatest novels in Punjabi? He could not answer that question with certainty. Later, my colleague gifted me a copy of the beautifully produced Mera Pind. I had two reasons to politely refuse the gift. One, I would not be able to read it. Two, I wanted someone else to read it, rather than it merely adorning my bookshelf. I had no chance to meet Gianiji but on several occasions I benefited from his scholarship. Whenever I had any doubts about some historical or other aspects of Sikhism, it was to Roopinder that I would turn. Most of the time he was able to answer my queries. One such question prompted him to show me his father’s magnificent collection of miniature paintings related to Sikh history. On a couple of occasions when the questions were trickier or complicated, he would say that he would soon get back to me. Sure enough, he would call back with the correct answer in a jiffy, for he lived with a living encyclopaedia on Sikhism, who breathed his last on
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Stop vote-bank politics to save Assam FOR the ghastly drama enacted during the last few days in Assam, in which about 70 innocent persons were done to death in cold blood, the United Liberation Front of Asom (ULFA) is squarely responsible. But no less responsibility rests upon those who, by virtue of their vote-bank politics and acts of mis-governance, have brought this organisation into being and allowed it to develop its lethal fangs. ULFA was born in 1979 in the disturbed atmosphere created by the anti-immigration movement which was primarily directed against what was perceived to be a “de facto Indian government policy of admitting and enfranchising foreigners”. This ‘policy’ found its most brazen expression in 1979-80 when Parliamentary elections were held on the basis of 1979 electoral rolls which had been highly inflated by the inclusion of Bangladeshi infiltrators. Resentment amongst Assamese mounted and a mass movement erupted. Though the movement was led by the All Assam Students Union, it was ULFA which injected violence in it. In 1983, the Illegal Migrants (Determination by Tribunal) Act was passed. The new law was so designed that it made the task of identification and deportation of “aliens” extremely difficult. Following the Assam Accord (1985), fresh elections to the State Assembly were held. This brought the Assam Gana Parishad, the political outfit of AASU, to power. Peace seemed to have returned to the State. But the AGP Ministry turned out a highly disappointing performance. The Parishad proved as unprincipled as other political outfits in sacrificing national interests at the altar of the ‘vote-bank’ politics. The attitude of the Union government was still more deplorable. It proved insincere in implementing the Assam Accord. It even egged on the plains tribals to embarrass the state government by raising all sorts of demands, including the demand for Bodoland. One of the unwholesome features of the Indian State in the post-independent period is that it has followed hard and soft lines alternatively in its attempt to solve problems of national security. In the process, it has been falling in between the two stools. Both the Army Operations – Bajrang and Rhino – were called off half-way. The Saikia Ministry even released about 400 hard-core militants, including those involved in heinous crime and whose arrests had been effectuated by the armed forces at heavy cost of men and material were released. A scheme was also put in operation under which ULFA militants who surrendered could secure extensive rehabilitation benefits. While the positive aspects of the scheme were limited, its negative impacts were fundamental. An impression was created that the way to get a job or obtain loan or set-up a remunerative business was not through hard and honest work but through subterfuge and subversion and even through spilling of blood of innocents. Separately, exasperated by the attitude of the Central and the State Governments, a writ petition was filed in the Supreme Court by Sarbananda S Sonowal, former President of AASU, challenging the validity of the IMDT Act. In its order of July 15, 2005, the Court declared the Act unconstitutional and regretted the government’s “disinclination to act on account of political reasons”. The Court also directed that “all cases relating to illegal migrants should be decided in the manner provided in the Foreigners Act.” Through a devious act of subordinate legislation, the government amended the Rules under the Foreigners Act, and virtually introduced the same procedures as was laid down under the IMDT Act. The above amendments were also challenged by Sarbananda Sonowal through another writ petition. In its judgment, given on December 5, 2006, the Supreme Court not only declared these amendments as “unreasonable, arbitrary and invalid” but also left no one in any doubt how poorly it thought of the intentions of the government. During all these intervening periods, the ULFA had tasted blood, accumulated huge funds and weapons, changed its stance with insistence on having a sovereign Assam, and even established friendly contacts with ISI of Pakistan and Bangladeshi forces hostile to India. It also used the period of “ceasefire” and negotiations through interlocutors to regroup and strengthen itself. Now a situation has emerged in which a parallel economy, rooted in terrorism and subversion, has come to stay. A potent net-work of extortion, intimidation and protection-money now operates at the ground level. It is placing a substantial portion of Central and State government’s funds in the hands of the militants. The Supreme Court, in its order of December 2006, in Sonowal II, has already directed that the new arrangements under the Foreigners Act should be put in force within four months. The Central Government and State Government of Assam should carry out this direction and effectively enforce the provisions of the said Act and the Rules made thereunder. All the Bangladeshi migrants who are detected and declared as illegal foreigners under the Foreigners Act but whose physical deportation causes practical problems should be given temporary work-permits for specified items till they return to the native place. In any case, their names should be deleted from the Electoral Rolls. The government must declare in no uncertain terms that no negotiation or any kind would be held with ULFA unless it abjures violence and give up such wooly and destructive demands as establishment of ‘sovereign state of Assam’. The blood chilling incidents of the last few days in Assam once again remind us that “India can be governed firmly or not at all”. The leadership will also do well to keep in mind what Paul Wilkinson, a noted scholar of terrorism and subversion, has underlined: “Rebellions do not generally fade away; they have to be put down firmly and ruthlessly, if normal life and business are to be
restored”. The writer is a former Governor of J&K and a former Union Minister |
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Disarming for democracy THE swearing-in of a new interim Parliament in Nepal with 83 Maoist members is a landmark development in South Asia. The House that the now-ousted king was forced to reinstate last year has been dissolved. Nepal has given itself a new, interim constitution under which a new 330-member Parliament reflects the will of the people. The Maoists are now officially a ‘parliamentary’ party, making them a partner of the Seven-Party Alliance – in steering the country towards an inclusive democratic republic – but also their principal challenger in the unfolding battle for political supremacy. The Maoists have now sworn allegiance to the Nepalese constitution. In return for their un-elected membership of Parliament, they have to pay – by surrendering the weapons with which they waged a 10-year guerrilla war that claimed over 12,000 lives. The Maoists have begun handing over their weapons to UN monitors, this being a pre-requisite for their ascent in the mainstream, from MPs to ministers in government. Although the move carries implicit international endorsement, especially from the two most important capitals of New Delhi and Washington, fingers are likely to remain crossed till the disarming process is concluded. New Delhi is supportive of the peace deal and the processes flowing from it. Yet, South Block is compelled to stress at every turn on the road its concern for peace, stability and democracy in Nepal. The Maoists being an unknown entity in democracy, New Delhi’s emphasis on peaceful completion of arms surrender and management is only to be expected. Washington may have shed its uncompromising opposition to the Maoists, who are still designated “terrorists”, but it is watchful. The US embassy in Kathmandu has demanded the expected: that the rebels must disarm before joining an interim government. To signal its watchfulness, it added for good measure that the Maoist rebels should “abandon the tactics of violence, intimidation and extortion”. Though this is also the expectation of New Delhi, there are obvious reasons for not being explicit about it. Despite the unconcealed misgivings in informed quarters that the rebels would covertly hold on to some “firepower”, everyone with a stake is constrained to assume that the Maoists would act in good faith – register all their combatants and surrender all their weapons. The general wariness about provoking the Maoists or pushing them too far at this stage, is attributed to the conviction that their own strategic objectives require them to stick to the roadmap leading to elections scheduled for later this year; and that they are unlikely to upset the applecart if the going is good. The Maoists have started well by nominating as MPs those belonging to marginalised and depressed sections, besides a Buddhist monk and a former officer of the Royal Nepalese Army; more than two-thirds of their MPs are women. At the same time, they have showed their resolve to challenge the SPA by trying to get their man elected as Speaker. This should alert the mainstream parties, especially the Nepali Congress, that the new kids in the parliamentary block are determined to get the better of the old guard if the latter fail to change for the better and mobilise the majority for Project New Nepal. |
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Delhi Durbar THERE is hushed talk that Congress president Sonia Gandhi might visit Allahabad during the auspicious Ardh Kumbh festival. Will she or won’t she take a dip in the Sangam? That is the question doing the rounds in political circles. There is some element of unease among the security agencies because of the huge multitude of pilgrims there. Congress leaders are wary of offering comments saying if Sonia visits the Ardh Kumbh it will be her personal decision. At the same time, party leaders in Uttar Pradesh are excited. This might have an impact on their political fortunes, with Assembly elections in the country’s most populous state round the corner. While most discriminating Congressmen aver that their chances at the hustings in UP are dismal, Sonia’s proposed move might please certain sections like the upper caste Hindus, and thus help the Congress. In case Sonia goes to the Kumbh, it will not be unprecedented. A tradition was started by the country’s first Prime Minister Pandit Jawaharlal Nehru and continued by Sonia’s late mother-in-law Indira Gandhi. The concern of the security agencies is only natural as nearly seven million people took a holy dip in the confluence of the Ganga, Yamuna and the mythical Saraswati earlier this week.
Supreme Court and RTI Does the Right to Information Act apply to the Supreme Court and can the citizens of this country demand, as their right, information on the functioning of the Apex Court? That is the question agitating concerned citizens who have now resorted to the Internet to solicit support. The action group for Judicial Transparency, Reforms and Human Rights has questioned the request of the Supreme Court to be exempted from the RTI Act as it may “adversely affect or interfere with the independence of the Judiciary or in the administration of justice.” The group maintained that the judiciary must know that it is also being watched by the public and is accountable as one of the major pillars of democracy. Like bureaucrats seeking to keep file notings under wraps, if the courts escape the RTI Act, then all the judgements of various High Courts and the Supreme Court will amount to mere pontification, insisted the citizens group.
Businessman beats politician A sneeze in the national capital has resulted in Punjab catching a cold. The drubbing that SAD (Badal) received in the Delhi Sikh Gurdwara Management Committee polls by the Congress-backed Delhi unit of the SAD has sent out a strong message. The going for former Punjab Chief Minister Parkash Singh Badal is unlikely to be the smooth affair that was perceived earlier. “After wresting Delhi, we would now campaign in Punjab so that the Congress headed by Captain Amarinder Singh retains power in the state,” stressed Paramjit Singh Sarna. Another Sikh leader commented that the “businessman in Sarna outwitted the politician in Badal, and he has finetuned his electoral strategy for Punjab. It would be fight between the traditional vote bank politics of Badal and the modern corporate electoral strategy of Sarna.”
The Army Day high tea hosted at Army House by the Chief of Army Staff Gen J.J. Singh and his wife Anupama had in its assemblage a galaxy of ex-chiefs of the three armed forces. However, one of them stood out as a clear winner – the venerable Marshal of the Indian Air Force Arjan Singh and his wife. A miniature fort had been erected at the entrance to the lawns where two bands were in attendance. As the Commander-in-Chief of the armed forces, President APJ Abdul Kalam exchanged pleasantries with one and all and cut a huge chocolate cake with a soldier in full battle gear adorning it. Union Home minister Shivraj Patil, who was holding fort in the absence of Prime Minister Manmohan Singh, was present, as also the self-effacing union Defence minister AK Antony clad in his tradition white dhoti and shirt, with a shawl wrapped around his shoulders. In a brief chat with mediapersons, Antony spoke of visiting Tawang in the summer with scribes in tow. The last time Antony had tried to visit Tawang, the fickle weather played
spoilsport. Contributed by Satish Misra, R Suryamurthy and Girja Shankar Kaura |
A king is not determined by the parentage alone. He must prove his skill and prowess to win the respect of his people. The king must be well skilled and well versed in the art of leadership. —The Mahabharata It is easy to repeat the praise of Ishwara but difficult to fathom the mystery of it, through the favour of a Guru (spiritual teacher) it gets ingrained in the mind, one reaps the fruit easily. —The Vedas |
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