The Tribune, Chandigarh, India

Murder in Mumbai
Restore the rule of law

Attacks on journalists are getting worryingly more frequent. And these are not confined to the troubled Jammu and Kashmir, the Maoist-hit states or the North-East. The country’s financial capital, Mumbai, is also vying for the dubious distinction of being the crime capital. The 26/11 terror attacks caught the police sleeping. The recent murder of a driver of Dwaood Ibrahim’s brother revived fears of gang rivalry leading to more blood-letting on Mumbai’s streets. The murder of senior crime reporter Jyotirmoy Dey in broad daylight on Saturday has shaken not only journalists but also the civil society that values freedom of the media as society faces a serious threat from a nexus of politics, business and crime.

The Mumbai police, not surprisingly, is still clueless about the motive of the journalist’s murder. The needle of suspicion points to the underworld and the oil mafia. Dey had excelled in crime reporting and written two books on the subject. As part of work he might have annoyed underworld dons. The police suspects the oil mafia, which had caught national attention after it burnt alive Deputy Collector Yashwant Sonawane in January. Dey was working on a report to expose the misdeeds of a gang of oil thieves, policemen and politicians. This brings into question the wisdom of handing over the sensitive murder case to the local police.

While the country at large offers a favourable working environment to journalists, local criminal gangs and despots in business and politics do threaten their freedom. Unlike others, they cannot be provided with police security as that could compromise their independent functioning and secrecy of sources. The fear of law has to be drilled into criminals – no matter how powerful. Otherwise, no one would risk exposing wrongdoings. While pragmatic journalists cultivate the powers-that-be, the idealists — like Dey — stand up to the mighty and take the bullet.

Rehabilitation of sex workers
Haryana takes the initiative

OFTEN, the rehabilitation programmes initiated by the government cut no ice with the sex workers in India. The reason is that they smell sympathy rather than respect for the persons involved in the world’s oldest profession. The Supreme Court had directed the Centre and the states/ Union Territories to prepare suitable rehabilitation schemes for the welfare of sex workers in April who, the court stressed, are entitled to a life of dignity under Article 21. On May 4, the court again sought reports on what vocational and technical training schemes the states were proposing to ensure meaningful rehabilitation of the physically and sexually abused women. Close on the heels comes the Government of Haryana’s initiative, which has invited applications from the NGOs interested in working for the rehabilitation of sex workers in the state.

The state claims it has close to 14 thousand sex workers, who are to be rehabilitated under Ujjawala and Swadhaar schemes of the Centre. Going by unofficial sources, unprecedented growth of economic centres like Gurgaon has given rise to a lot more numbers involved in the trade in urban and semi-urban areas but in a sophisticated manner, which eludes the conventional surveys conducted on sex workers. Even at the national level, the number of women involved in sex trade largely varies, undertaken by government and private agencies.

If one is to look at the history of success of such schemes taken up in the past, one would realise the schemes have filled sex workers with more scorn and contempt rather than sorting out the complex issue. One reason behind the fact is that sex trade flourishes under police and political protection and hence is largely criminalised. Forced rehabilitations carried out by the government, elsewhere in the country, in the name of “rescuing them from their plight” have not paved the way for their betterment. What is indeed needed is more opportunities for women to choose their means of livelihood from. The proposed training on the lines of ITIs and providing loans for the marketing of their products are well-meaning ideas, but their real test would be in their implementation.

Thought for the Day

Life is like a 10-speed bicycle. Most of us have gears we never use.

— Charles Schulz

ARTICLE

Repeal the law of sedition
It’s used to silence political opposition
by Justice Rajindar Sachar (retd)

ONE of the most shameful pieces of legislation in our penal code is the continuance of “sedition” Section 124-A of the Penal Code which provides that whoever excites or attempts to excite disaffection towards the government established by law in India shall be punished with imprisonment for life. The expression disaffection includes disloyalty and all feelings of enmity. This provision was included by the British government in 1870 as rulers of India. Regretfully, it continues to muddy our laws of crime.

This imperialist legislation was used against several freedom fighters like Bal Gangadhar Tilak and Annie Besant. Mahatma Gandhi was also prosecuted under 124-A in 1922. In a speech before the trial judge, he said… “Section 124 A under which I am happily charged is perhaps the prince among the political sections of the I.P.C. designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

Though in the original draft of the Constitution “sedition” was provided as one of the exceptions to limiting the fundamental freedom of speech and expression, after a long debate in the Constituent Assembly it was dropped.

This was because the incongruity of continuance of such a provision in free India was recognised in the debates of the Constituent Assembly. K. M. Munshi advocated its deletion from Article 19 because “The party system which necessarily involves an advocacy of the replacement of one government by another is its only bulwark; the advocacy of a different system of government should be welcome because that gives vitality to a democracy.”

T.T. Krishnamachari, who was then a member of the Madras Legislative Assembly, supported Munshi pointing out that such a law became non-functional in 1802 in the US.

Nehru’s views, expressed in 1951, were totally against this provision when he said, “Take again Section 124A of the Indian Penal Code. Now so far as I am concerned, that particular Section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, in any body of laws that one might pass. The sooner we get rid of it, the better.” But alas these encouraging words remained merely on paper and Sec 124A continues to be used as a weapon of oppression by tainted governments.

Immediately after 1950, the High Courts of Punjab and Allahabad held Section 124A to be invalid. But unfortunately these decisions were overrated in the Kedar Nath Singh case (1962) where, with the greatest respect, in an exercise of judicial word play the court, while holding that “strong words used to express disapprobation of the measures of government with a view to their improvement or alteration by lawful means, would not come within the section”, at the same time downplaying the above by saying that this should be without exciting the feeling of disloyalty to the governments. It is to be regretted that the Supreme Court refused to recognise the difference between the State and the government. Disloyalty can only be to the Indian State. But to spread disloyalty peacefully to the government because it is considered to have anti-people
policies is the very foundation of a vibrant democracy.

In a democracy, anybody who is dissatisfied with the government has the right to create disaffection against it and seek its removal at the next election. In fact, it is the constitutional right of every citizen to expose the misdeeds of the government it disapproves of and create disaffection and disloyalty among the people and work for throwing it out of power — of course, without resorting to violence.

Disloyalty to a government is different from disloyalty to the State. But, alas, because of the Kedar Nath case the police confidently goes on resorting to Section 124A against social activists, and the courts, as a routine, deny bail and the activist remains in jail for years even without the trial starting. A greater degree of human rights violation is hard to imagine.

Very significantly, the explanation to Section 124A, which distinguishes “disapprobation” (i.e. criticism) from “disaffection”, has been dropped from the definition in the Unlawful Activities Prevention Act (UAPA). This makes this provision more dangerous to democratic rights.

A recent convention organised by the People’s Union for Civil Liberties (PUCL) and participated by other human right organisations heard the accounts of widespread and systematic misuse of sedition law across India. All forms of democratic struggles — from farmers’ agitations to citizens’ protests against state policies — have been criminalised and prosecuted under sedition laws. Consequently, thousands of ordinary citizens have not only suffered violations of fundamental freedoms and liberties but have also been forced to undergo major personal, emotional and financial hardships due to imprisonment and seeking legal remedies. It consequently resolved to launch a nation-wide signature campaign to collect at least a million signatures to present to Parliament demanding immediate repeal of sedition law — Section 124A, IPC, and Section 2(o) (iii) UAPA, 1967.

It is ironic that sedition law, which owes its ancestry to English imperial domination, continues on our statute book, notwithstanding the fact that England has abolished the crime of sedition and, in doing so, emphasised the following:

Sedition is defined in vague and uncertain terms. This offends the fundamental principles of criminal law.

In any case, it refers to a particular historical context (sovereignty residing in the person of the King) which no longer holds. The law is archaic and must be done away with.

While certain political views may be unreasonable or unpopular, they cannot be criminalised. This offends democratic values.

The definition of sedition offends fundamental freedoms of speech and expression which are universally recognised.

In practice, the law is used to silence political opposition or criticism of the government. This has a “chilling effect” on free speech.

Should India still suffer public humiliation and embarrassment before the human rights audience both nationally and internationally by continuing the law of sedition?

The writer is a former Chief Justice of the Delhi High Court.

MIDDLE

Pet names
by Raji P. Shrivastava

THE names that people give their pets never cease to amaze me. Some popular names for dogs during my childhood were Raja, Tiger or Fluffy. People with more imagination settled for Dollar or Rouble. Naturally, when Rouble had a baby, he was named Kopek!

The sheer variety in pet names these days is reflective of the refined preferences of pet owners. I use the word “owners” merely for want of a better word, of course. My daughter introduces our cantankerous but beloved JoJo as her ‘furry brother’, so I need to introspect as to what that makes me! Other young people consider “guardians” or “carers” a more sensitive word than “owners”. After all, you can buy a pup at a pet shop, but it is the dog that eventually ends up owning you.

Starting with those who have food on their mind, I am acquainted with a Cookie, a Brownie, a Toffee, a Biscuit and a Pudding. I am even on first name terms with a Momo and a Dimsum. An exotic beauty I know is called Chocolat, pronounced Sho-koh-la, the French way.

When we were probationers at the IAS Academy in Mussoorie, the “no animals allowed on campus” rule was only relaxed for the Director’s faithful companion. Diana was a great, shaggy creature who loved the soup and pasta her bachelor owner cooked for himself. The old girl (nicknamed Lady Di) had free run of the classrooms and often cocked a disdainful eyebrow at our powerpoint presentations.

Sometimes it becomes inevitable for parents to give in to the demand for a pet. Great company, genuine comfort and undeniable security make for excellent reasons to have acanine companion in the house. At last count, 15 of my daughter’s classmates had acquired pet dogs. Their names are refreshingly clever: Boozo, Oscar, Chief, Eddy, Maxx, Merlin, Candy, Hilary, Milo, Cupid, Fiskars, Pinocchio, Casper, Gizmo and Paris. I was also warned that Rex was short for Tyrannosaurus Rex – this doggy dinosaur was alive and growling!

One individual I met last year was called Chaos, or, Kaos, spelt the German way. I have yet to meet a more well-behaved and gentlemanly dog. I was puzzled at the choice of name until their seven-year-old advanced an irrefutable piece of logic : “Auntie, not all people named Sweety are sweet!”

Dogs are often named for famous people, and not always as an insult! The names people bestow on their canine friends reveal facets of their own personalities. Some years ago, I had a scholarly boss whose equally dignified dog was called Rousseau. At meetings in his camp office, I involuntarily looked over my shoulder for a Plato or a Cicero to emerge. But all I saw was a Moti. The mystery was cleared when Rousseau was transferred along with his Dad and Moti remained behind with his own family headed by Des Raj the chowkidar!

The most direct system of nomenclature I have ever come across involved a little girl of four and her new pup. She took one look at him and declared, “I shall call him Funnyface!”

OPED — DEFENCE

The Delhi High Court has recently ruled that High Courts are constitutionally empowered to review decisions of the Armed Forces Tribunal, even though the Armed Forces Tribunal Act stipulates that such appeals lie directly with the Supreme Court. The Tribunal was set up for quick redressal of grievances and judicial review of court martial orders, relieving the High Courts of a huge backlog. The ruling defeats this very purpose and takes us back to square one.

High Court ruling can make the Armed Forces Tribunal infructuous
Lt Gen Harwant Singh (Retd)

Newly commissioned IAF officers during the passing out parade at the Air Force Academy, Dundigal. A judicious and speedy grievance redressal mechanism in the armed forces is essential for effective functioning of the services as well as for maintaining exacting standards of discipline and ensuring high morale. Photo: PTI

THE defence services had been clamouring for an Armed Forces Tribunal (AFT) for decades, essentially because the civilian courts took years and even decades to decide their cases. These inordinate delays had an adverse impact on discipline, morale and functioning of the military. Take just two cases. The Sixth Pay Commission gave Brigadiers more pension than Major Generals. It took the Punjab and Haryana High Court three long years to address this simple anomaly. Some five years later the case is still doing the rounds of the Supreme Court. Air Vice Marshal Masand, with outstanding service record and a pilot of great repute with the Vir Chakra to his credit, was superseded for promotion to the rank of Air Marshal. Long after he retired, he is still fighting his case in the civilian courts. Perhaps his children will have to continue the fight after he has left the scene.

Since the AFT has come into existence, its benches spread across the country have done a commendable job and have been deciding cases, not only with great scrutiny and application of mind, but with equal promptitude. They are moving quicker that the fast track courts, reinforcing the maxim that justice delayed is justice denied.They have been able to decide cases that have been hanging fire in civilian courts for as long as half a century. Though the AFT is established on the lines of the Central Administrative Tribunal (CAT), they differ in one essential aspect in that the AFT reviews cases of defence services which have separate laws and courts of their own. These courts have full judicial powers. The AFT was set up after long prevarication, dithering and delay, recommendations of the law commission and innumerable articles in the national press pressing for its dire need.

The composition of the AFT was worked out with a view to relate it to the composition of the courts whose verdict, besides other service issues, it would also be called upon to review. This was so because civilian courts are generally not conversant with the military's working, systems, ethos, environment, and the circumstances under which it is required to operate and discharge its duties in peace and war. These special conditions require a rigorous law, quite apart from the general civilian laws. There was a time that for this obvious reason, civilian courts were somewhat reluctant to take on the military's cases. However civilian courts, for no apparent reason, now seem to adopt an altogether different approach.

As per the AFT Act, rulings and verdicts of the AFT can be reviewed only by the Supreme Court. The very purpose of setting up the AFT was to provide a dedicated forum for quick redressal of grievances and judicial review of court martial orders with the provision for just a one-stage review (Supreme Court in this case) for armed forces personnel, as disposal of cases in civilian courts took a long time and this inordinate delay impinged on the discipline and good order in the defence services.

The Delhi High Court, in its recent ruling noted that High Courts are constitutionally empowered to review decisions of the AFT, not withstanding the fact that the Armed Forces Tribunal Act of 2007 stipulated that appeals against AFT's orders would rest directly with the Apex Court. A Division Bench comprising Justice Pradeep Nandrajog and Justice Suresh Kait further ruled, "AFT, being manned by personnel appointed by the executive, albeit in consultation with the Chief Justice of India, cannot be said to be truly a judicious review forum as a substitute to High Courts that are constitutional courts and the power of judicial review, being a basic feature of the Constitution, under Article 226 and Article 227 of the Constitution is unaffected by the constitution of the AFT." Further, tribunals can perform a "supplemental as opposed to a substitutional" role vis-a-vis the high courts, the bench held.

The AFT was set up to exercise appellate jurisdiction with respect to orders, findings or sentences of court martial and exercise original jurisdiction with respect to service disputes. This ruling puts the very purpose of having an AFT somewhat infructuous and takes us back to square one. It is in fact, a leap forward into the past. It will bring about the same painful and frustrating delays and their impact on the military's discipline and functioning as they existed before the promulgation of the AFT Act. The Delhi High Court, in its infinite wisdom, deep understanding of the Constitution and legal acumen, has turned the very idea and rationale of setting up the AFT on its head.

Now article 227(4) of the Constitution, on which the Delhi High Court has relied in passing the above noted order, provides superintendence of High Court over all courts/tribunals falling in its jurisdiction but it specifically excludes court martial cases. Therefore and quite simply and logically, it cannot have power of superintedence over the Armed Forces Tribunal that has appellate jurisdiction over verdicts of court martial cases. Further when there is specific provision for appeal against verdicts/orders of the Tribunal under sections 30/31 of the Act to only the Supreme Court, then how could a writ petition be entertained by a high court.

High Courts are already overloaded with work and the backlog runs into a million cases and it is to bypass this legal quagmire and the necessity for quick disposal of defence services cases that the AFT Act of 2007 was promulgated by the government as an act of Parliament and as such became a law, where the Chief Justice of the Supreme Court was in the consultative loop. In case the rulings of the AFT are to be subjected to review by the high courts and later by the Supreme Court then the purpose of establishing the AFT is defeated.

On an earlier occasion, a High Court gave a ruling that court martial should record a "speaking order". Now the composition and working of a court martial is akin to the jury system, which for too obvious a reason does not record a "speaking order". Unfortunately, defence services did not contest this ruling in the Supreme Court and court martial proceedings are now required to be accompanied by a speaking order. The judge advocate, who is on the court martial merely to render advice to the members on purely technical legal issues and has no voting right, is the only one who is qualified to write a speaking order. Consequently the judge advocate has come to exercise undue influence over the court, which in reality and practice has altered the very character and working of the court martial.

To avoid inevitable delays in the finalisation of defence services cases dealt by the AFT, in case these are subjected to review by the High Courts as well, the order of the Delhi High Court must be contested in the Supreme Court by the service headquarters. The need for early disposal of defence services cases hardly needs any emphasis.

The writer is a former Deputy Chief of the Army Staff

FACT FILE

The Armed Forces Tribunal was inaugurated on August 8, 2009. It came into being after the Armed Forces Tribunal Act was passed by Parliament in 2007.

The Act provides for adjudication by the tribunal of disputes and complaints about commission, appointments, enrolment and service conditions in respect of those covered by the Army, Air Force and Navy Acts, respectively, and hearing of appeals arising out of orders, findings or sentences of court martial. The Tribunal has original jurisdiction in service matters and appellate jurisdiction in court martial matters.

In addition to the Principal Bench located at New Delhi, it has eight regional benches comprising one or more courts at Kochi, Jaipur, Mumbai, Chennai, Kolkata, Lucknow, Guwahati and Chandigarh.

Each court is held by a two-member bench comprisng the judicial member, a retired High Court judge and an administrative member, a retired service officer of the rank of Major General or above. This enables the court to draw upon legal as well as service expertise while deciding cases. Most cases pertaining to armed forces personnel that were earlier pending before various High Courts have been transferred to the AFT.

Quote — unquote

"The Sixth Pay Commission gave Brigadiers more pension than Major Generals. It took the Punjab and Haryana High Court three long years to address this simple anomaly.
The Tribunal is moving quicker than the fast track courts and it has been able to decide cases that have been hanging fire in civilian courts for as long as half a century.
The judge advocate has come to exercise undue influence over the court, which in reality and practice has altered the very character and working of the court martial."