Tuesday,
May 7, 2002, Chandigarh, India
|
Hats off to the French Super cop in Gujarat Supreme Court on rape |
|
Reckless criminalisation of politics
Portly priests
The meaning and reality of Article 355
NDA after RSS takeover of the Bharatiya Janata Party
|
Super cop in Gujarat FORMER Punjab DGP K. P. S. Gill having been assigned the responsibility of Security Adviser to Gujarat Chief Minister Narendra Modi is in itself an upsetting commentary on the law and order situation in the riot-torn state. But more than that, it is a sad reflection on the professional capacity of the police top brass to restore normalcy in the affected parts of Gujarat. It is but natural if there is heartburning among the state's police officers after the superimposition of Mr Gill, popularly known as super cop for his role in controlling militancy in Punjab. There is, however, a hidden lesson in this development for the police officers in general: under no circumstances should they allow their professionalism to be compromised with. If the police wants its professional pride to remain intact, it must do everything constitutionally possible to safeguard its own image. Political bosses are always tempted to use the force in accordance with their own agenda, having nothing to do with law and order. But experts are of the view that an upright police officer can definitely find a way to save his professionalism even in such difficult circumstances. In Gujarat, the police has come in for sharp criticism for its sad behaviour on communal lines too. That is mainly because of the social cleavages caused by different factors at play. In the process, however, the police image has got sullied beyond belief. One section of the people has little faith in the capacity of the force to protect their lives and property. Another section no longer gets scared of the presence of the police as it happened earlier. Fear of law, in any case, has never been a strong point in the country's social milieu. Those at the senior level in the Gujarat police should realise that the force has ultimately harmed its own interests by allowing extraneous factors to influence its functioning. The police itself has to blame if the state government has been made to seek the services of the hero of the dark days of terrorism in Punjab. It is a different matter that he does not have enough experience of the kind required for handling a situation as prevailing in Gujarat. But he enjoys an enviable reputation in the area of his specialisation — policing under extremely trying circumstances. He has accepted the new challenge like a true professional. People are still killing people in the name of religion. Riot reports continue to appear on the front pages of newspapers even more than two months after the Godhra carnage. No doubt, there is a sea of difference between the scale of disturbances today and what followed immediately after the horrifying Sabarmati Express incident. But the underlying reality, perhaps, remains as disturbing as it ever was. It is necessary to find out what is there that refuses to go out of the people's mindset. Their unwillingness to accept their former neighbours in their midst again is too serious a matter to be dismissed as something inconsequential. The nation will be watching with utmost curiosity how the super cop handles this peculiar problem. |
Supreme Court on rape THE Supreme Court last week delivered two significant judgements concerning cases involving rape. Both judgements have redefined the current judicial interpretation of status of the testimony of the rape victim and the rights of a foreigner who becomes a victim of forced sex while visiting India. Passing orders in a case involving the rape of an eight-year-old girl by an 18-year-old man in a village in Rajasthan in 1989, the apex court said that the testimony of the victim should be treated as sufficient for deciding the case. The trial court had found the man guilty of rape and had convicted him to seven years in jail. However, the Rajasthan High Court set aside the conviction because it felt that the testimony of the child could not be relied upon for establishing the guilt of the rapist. The apex court’s ruling should help the trial court in Ludhiana in bringing to justice the alleged rapist of a seven-year-old girl. According to the complaint, the 22-year-old neighbour managed gain entry into the house of the victim in February, turned up the volume of the television and raped her. In several cases the apex court has had to express its displeasure at the handling of rape cases by the high courts. In April it passed strictures against the Orissa High Court for acquitting two persons accused of having raped a married woman. What invited the displeasure of the Supreme Court was the high court’s argument that the marks of injuries found on the victims private parts could have been self-inflicted. However, a judgement that is likely to have far-reaching implications was delivered by the apex court in the case of a Bangladeshi woman tourist who was gangraped by railway employees at Howrah about two years ago. The court extended the scope of Article 21 of the Indian Constitution [dealing with right to life and personal liberty] to foreign nationals visiting India. The court granted Rs 10 lakh as compensation, to the victim to be paid by the Railway Board. In this case the apex court actually upheld the order of the Calcutta High Court. The high court had ordered payment of compensation. However, the victim of the gangrape got the constitutional right to life and liberty while in India as a bonus when the Railway Board sought reversal of the compensation order. A holistic study of the problem would reveal the difference between the rate of conviction and the registration of cases, as also between the number of cases actually reported and the number of rape cases that go unreported because of the fear of social stigma. The existing laws covering rape need to be strengthened and made more gender sensitive. However, there is little that the judiciary can do if a large number of rape cases are never reported. What is the point of having full proof laws when society itself is not ready to hand over the alleged rapists for trial? |
Reckless criminalisation of politics FINALLY, it is official! Politics in India has nothing to do with morality and accountability. Criminalisation of politics is the flavour of the season. All in the grip of the gun culture. With the unscrupulous manipulators emerging as the rulers. Turn to any part of the country, politico-criminal elements rule the roost. For, till yesterday no one was there to cook the criminals’ goose! Not any more. In a historic 50-page judgement last Thursday, the Supreme Court has minced no words in roasting our trigger-happy and gold hungry netagan in an electoral-legal tandoor. The court has obviously taken note that in the last 54 years no politician or leader worth the name has been held accountable or guilty of acts of commission or omission, thus making immorality a way of life in the country. Also, in our electoral politics, antecedents of the candidates are not important at all, unlike in the USA, where the candidate’s biology and biography to date are subjected to a microscope. What to say of electoral reforms that are hanging fire since 1991, leaving everyone disgusted! Enough is enough! Three cheers indeed for the apex court’s three-member-Bench headed by Mr Justice Shah which has virtually upheld the ruling of the Delhi High Court in a public interest litigation by the Association for Democratic Reform two years ago against which the Government of India had gone in appeal. Aimed at curbing criminalisation of politics and ensuring transparency in elections, the court ruled that candidates for the Lok Sabha or legislative assemblies would have to disclose their antecedents, assets and educational qualifications to help the electorate make the right choice. The court directed that the candidates would be required to give details on five counts: (1) Whether the candidate is convicted or acquitted or discharged of any criminal offence in the past — if any, whether he is punished with imprisonment or fine. (ii) Prior to six months of filing of nomination, whether the candidate is accused in any pending case of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law, if so details thereof. (iii) The assets (immovable, movable, bank balance, etc) of a candidate and of his/her spouse and that of dependants. (iv) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues. (v) Educational qualification of the candidate. The Election Commission, the court observed, should draw up the norms and modalities to carry out and give effect to the aforesaid directions properly as early as possible and, in any case, within two months. The purpose of requiring the candidate to make all such disclosures is to help the voter make an informed choice of electing law-breakers as law-makers”, the court said. It directed the commission to ensure that the candidates furnish these details in an affidavit at the time of filing their nominations. Those who fail to do so should be liable to be disqualified by the commission, which has a “plenary power” under Articles 324 of the Constitution to hold free and fair elections. Predictably, the judgement has sent shock waves among our netagan. A large number of them are livid with what they perceive as the Supreme Court’s “activism and infringement on areas not under its jurisdiction. Namely, the Election Commission is a statutory body which does not come under the purview of the Supreme Court. Shorn of all the political legalese and efforts to find faults, a favourite pastime of our netagan, the truth is that they don’t want to be accountable. Not even to the Almighty God. Transparency is a far cry. Not a few view this as encroachment on the powers of the executive and the legislature, the other two pillars of our Constitution. This was evident from the strong opposition to this from the Solicitor-General of India who represented the Union Government and the Congress party’s lawyer. Their case? One, that the court could not direct the Election Commission to make such disclosures mandatory, as political parties alone were empowered to decide on such issues. Outrightly rejecting this plea, the court held: “In a democracy, the electoral process has a strategic role. The little man of this country should have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted”. The right to get information in a democracy was recognised all through and it was a natural right flowing from the concept of democracy. The Bench observed: “Under our Constitution, Article 19 (I) (a) provides for freedom of speech and expression. The voters speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote.” Mr Justice Shah said the people of the country have a right to know every public act, everything that was done in a public way by the public functionaries. MPs and MLAs were undoubtedly public functionaries, he added. Two, the court could not fill in the vacuum in the absence of proper legislation. Justice Shah, writing for the Bench, however, ruled: “The Supreme Court would have ample power to direct the Election Commission to fill the void, in the absence of suitable legislation, covering the field and the voters are required to be well-informed and educated about contesting candidates, so that they can elect proper candidate by their own assessment. It is the duty of the Executive to fill the vacuum by Executive orders because its field is co-terminus with that of the legislature, and where there is inaction by the executive, for whatever reason, the judiciary must step in.” Mr Justice Shah further said the judiciary, in such situations, should step in to discharge its constitutional obligations in providing a solution till the time the legislature acts to perform its role by enacting proper legislation to cover the field. “The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. Therefore, if the candidate is directed to declare his/her spouse’s and dependant’s assets, immovable, movable and valuable articles, it would have its effect.” Three, the voters only had a right to know about the background of public functionaries, not their personal affairs. But the Bench ruled: “There are widespread allegations of corruption against person holding post and power. In such a situation, the question is not of knowing personal affairs but to have openness in democracy for attempting to cure the cancerous growth of corruption by a few rays of light.” Fourth and last, the apex court’s directions would not be effective to break the vicious circle of unaccounted money polluting the basic democracy in the country. The court ruled: “May be true, still this would have its own effect as a step-in-aid and voters may not elect law-breakers as law-makers and some flowers of democracy may blossom.” Needless to say, this judgement has come as a big blow to the law-breakers turned-law makers. Over the years, their hold on the polity has become stronger. At the last count, there were at least 40 MPs and 700 MLAs who were allegedly facing criminal charges, including theft, extortion, rape, dacoity and murder. These figures collated by the Election Commission are, however, just a tip of the iceberg. The number of politico-criminals roaming free at all levels is a lot more. If truth be told, political goons have emerged as the biggest threat to society and the nation. Some of them (or their sons) even kidnap and rape, commit murder to cover their tracks, threaten the police to suppress evidence and make a mockery of legal proceedings. Recalling the old saying: “Sayian bhaye kotwal, to dar kis ka.” Has all this stirred anyone’s conscience? Tragically, “No”. All parties harbour criminals. Who can ever forget the sight of an MP who was brought handcuffed by the police to the entrance of Parliament House where his cuffs were removed, so that he could take oath of office as an MP. Prior to that he had to seek the court’s permission to go to Parliament. After his swearing-in he was again handcuffed and taken back to Tihar jail. As it stands, there are over a dozen Right Honourables in the present Parliament who have criminal cases pending against them in various courts. If this is the state of affairs in India’s high temple of democracy, can the states be far behind. Bihar tops the list, with Madhya Pradesh, UP and Maharashtra close behind. A few years ago, a Bihar MLA, allegedly under the influence of alcohol, threatened the Speaker with a sten gun. It is not an uncommon practice in Bihar for MLAs to carry arms into the House. Over the years heads have been knocked, commissions set up, on streamlining the electoral system. Prominent among these was the Dinesh Goswami Committee which submitted its report on electoral reforms in 1991. Alas, only to gather dust. Even as electoral laws and various codes of conduct have continued to be violated brazenly. Seldom have the violators been punished. In this scenario, will the court’s decision to provide the voter more information make any difference? Yes, provided the politician has the will and expeditious justice clears the way. The political parties should ensure that they choose their candidates after careful scrutiny of their antecedents. True, the rules of the game have been changed recklessly without a thought for the future and a premium put on criminality and immorality. Will profligacy be allowed to become the bedrock of parliamentary democracy? Basically, is it good for our democracy to have such people represent the voters? When those who are supposed to lead us become saboteurs, it is time for the people to assert themselves. The Supreme Court has shown the way. Let the criminals’ goose be cooked well and proper! |
Portly priests THERE could be several ways to gauge the health of a town or of a locality with a temple. For decades I used to visit one Shiv temple near the campus. I’m not a compulsive temple-visitor but one saintly person once asked me whom I saluted more — or wanted to salute more — “the visible godmen or the invisible primal force”? I at once poured out my heart and told him that I would any time prefer to kneel before the Creator than bend before the Shoguns with different brand names. “In that case you forget about the earthly arbiters of your destiny and start visiting some temple irrespective of the principal deity,” he remarked. That is how I began to walk to a nearby shrine and notice the body language of both the devotees and priests. Since this tiny temple stood in the heart of the medical locality, the pujaris were all slim and wiry. I remember one who always appeared well-washed and awake even at five in the wintry morning. He was the one who would mumble some words and pour amrit into my cupped hands. And then he would offer prashad in a pudia — a little paper pouch — which I brought home to share with the family. This prolonged contact with that slim and tidy dispenser of sanctified sugar balls made me believe that all the priests would be looking like him. With that hope when I visited one temple near our new home in Panchkula, I found to my utter dismay that the slim breed was nowhere to be spotted. I moved to different corners, both dark and bright, to look for someone with a shaved and shining face. I found none even after a sincere quest spread over three months. I wondered where the slim class had vanished till I discovered that the temple no longer lay in the medical sector — or the salaried class with which I had been familiar. This temple with paunchy priests, I discovered after a few weeks of survey, stood in a sector that had just a handful of doctors and academics. The majority of the residents hailed from more profitable areas that pitied slimness and early bath. It was obvious that prosperity led to different parameters of health. Whatever be the virtues of obesity and beards among the priestly class in this well-heeled sector, I do miss that feather-weight Shastriji who, in early days, helped me send up my prayers to the Lord. To be honest, as a Panchkulite I enjoy the proximity to the hills and the aroma of ethnic cuisine in this township, but I sorely miss those slim and wiry priests that guarded the house of God in the doctors’ colony. |
The meaning and reality of Article 355 IF nothing else, one benefit of the National Commission to Review the Working of the Constitution (NCRWC) has been to make the people a little more aware of the constitutional provisions. Even never-used and little-discussed provisions like Article 355 are now being bandied about in intellectual and parliamentary discourse. The party which had strong reservations about the setting up of the commission seems to have gone by its recommendations in regard to the use of Article 355. Unfortunately, there is still considerable confusion about the meaning and interpretation of this article. Those on the Treasury benches as also those in the Opposition seem to be misreading it. For the Opposition, it appears to be only a prelude to Article 356 and must almost necessarily lead to the imposition of President’s rule. Some on the government side, on the other hand, perhaps feel that sending some advice or advisers or issuing some directions to the state are enough to show that Article 355 is being used. Contrary to what is being stated, two things are very clear from the language of Article 355, viz (i) it is self-contained and independent of Article 356 and self-operative, and (ii) it does not anywhere provide for issuance of any orders, questions, directives or warnings to the states. Article 355 makes it the constitutional duty of the Union to protect the states against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the Constitution. The responsibility cast on the Union has got to be discharged by exercising all the powers at its command i.e. without resorting to the ultimate device of imposing President’s rule over the state under Article 356. The much misused and abused article 356 lays down that if on receipt of a report from the Governor or otherwise, the President is satisfied that the government of the state cannot be carried on in accordance with the Constitution or that the constitutional machinery has failed, he may issue a proclamation taking over any of the functions and powers of the state government, including those of the Governor and other state authorities. The satisfaction of the President, of course, means the satisfaction of the Union Government and President’s rule is actually rule by the Union Government. A plain reading of the two Articles (355 and 356) would show that while Article 355 enjoins the Union to do all it can to ensure that the government of the state is carried on in accordance with the Constitution and that the state is protected against external aggression and internal disturbance, Article 356 envisions a situation where the Union itself is satisfied that it has also failed and is convinced that it cannot do so without directly taking over the government of the state. Article 355 precedes Article 356 and, therefore, it must be read and acted upon before rushing to taking extreme action under the latter provision. It is also important that Articles 256, 257 and 365 are also read along with Article 356. This is usually not done. Inasmuch as Article 355 speaks inter alia of the duty of the Union to ensure that the government of every state is carried on in accordance with the provisions of the Constitution, it is obvious that Article 356 is not the only one to take care of a situation of failure of constitutional machinery. The Union can also act under Article 355 i.e. without imposing President’s rule. It is not correct to say that Article 355 has no operative part. Duty “to protect” and “to ensure” necessarily carries with it all the necessary powers to do so. The Union Government can issue directions under Articles 256 and 257. Article 355 is not meant for that purpose. In the context of Article 356, a question may be asked as to when can the President legitimately hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the Constitution. A very specific and categorical answer is contained in Article 365 when it says that where a state fails to comply with Union directions (under Articles 256, 257 and others) “it shall be lawful for the President to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of this Constitution”. It is unfortunate that before rushing to issue proclamations under Article 356 — and this has been done over 100 times in 50 years —no effort ever appears to have been made to ensure that (i) the Union had done all that it could in discharge of its duty under Article 355 and (ii) that the State had “failed to comply with, or give effect to” directions under Articles 256, 257 and others. This may have been because most often recourse to Article 356 has been taken more for political reasons, to get rid of opposition governments. Obviously, if the anxiety of the Union Government was only to ensure that the government of the states is carried on in accordance with the provisions of the Constitution, that could be done under Article 355 i.e. without imposing President’s rule. This would have been in keeping with what Dr. Ambedkar had said in the Constituent Assembly while replying to the critics of the contents of Article 356. He had expressed the hope that it might remain a dead letter and might never be used except as a last resort after everything else (i.e. including Article 355) failed. It was in this context and perspective that the Constitution Commission (NCRWC) observed that in case of failure of constitutional machinery “the Union can also act under Article 355 i.e. without imposing President’s rule. Article 355 can stand on its own” (Para 8.15.2). The Commission has recommended “that Article 356 must be used sparingly and only as a remedy of the last resort and after exhausting action under other Articles like 256, 257 and 355”. It is in this spirit and this interpretation of the letters of the Constitution that any Union action in Gujarat or any other state should be considered. The writer was a member of the National Commission to Review the Working of the Constitution. |
NDA after RSS takeover of the Bharatiya Janata Party Political implications of the BJP’s eventual return to the pre-coalition days are going to be more telling than what has been indicated in these columns last month. The question is not one of sidelining of Atal Behari Vajpayee alone. Nor does it confine to the continuance in the NDA of those allies who still enjoy ministerial perks. What one has to watch for in the coming months is how soon the cumulative effects of such developments will shape up the future political scenario. The most crucial change so far has been the completion of the RSS takeover of the BJP. The control may not be as emotional as in the Jana Sangh days. But it is certainly as tight as the period between 1991 and 1999. After years of shadow-boxing and a bitter cold war, Vajpayee has fully surrendered to the parivar bosses without a whimper of protest. Began just before the Goa session, the process seems to be now complete with the RSS establishment opening several channels right into what has hitherto been the PM camp. For all practical purposes, the PM camp seems deserted. Vajpayee’s political aides no more seek reports from the visiting state leaders or direct the party leaders on policies. At the peak of the PMO control of the BJP organisation — soon after the Chennai session — even the routine decisions of the party’s Ashoka Road headquarters were to have the Race Course Road endorsement. Vajpayee had functioned like an all-powerful Congress Prime Minister . It is no more so. Normally, the BJP hierarchy is attuned to quickly scend the shifts in power equations. The crowd of fortune seekers around the PM’s men has been thinning. Instead they collect at the real power centres — the Home Minister, the RSS political coordinator and young and middle-level leaders close to the new establishment. The change of atmosphere is so conspicuous. The man who was once the centre of the decision-making of both the government and the organisation is no more being viewed as a boon-giver. Just before the Goa session he had lost the control of the party. Now even the government affairs are steadily slipping out of his hand. There were instances when the ministers quoted “them” to defend particular decisions. Insiders say at the joint meetings of the BJP, RSS and allied outfits, the PM hardly makes any contribution to decisions. He would just listen and seemed to endorse the dominant views. Already, the parivar bosses have put their own men in all crucial positions. Even middle-level leaders like Pramod Mahajan, Arun Jaitley and Venkaiah Naidu act more on behalf of parivar than their own Prime Minister. Vajpayee has totally reconciled himself to this political reality. Thus nothing hereafter can move without the RSS consent — mainly through its men in strategic positions. Similarly, the parivar can stop any government or party move without resistance. An interesting fallout of Vajpayee’s unqualified surrender has been the rapidly thinning dividing line between the BJP and the RSS outfits, the BJP and the government and the government and the RSS. Top RSS bosses frequently go to the Prime Minister’s house and hold long meetings with Vajpayee and his Cabinet colleagues on government policies. After such sessions, the RSS spokesmen promptly announce the details to the Press. They hardly find anything unusual or unethical in an avowedly religion-based organisation regularly interacting with a government created by a secular Constitution. A senior RSS leader this week justified the organisation’s rajguru status. A question that still remains unanswered is: how did the RSS effect such a surrender without firing a single shot? What had forced the hitherto stubborn Vajpayee to finally give up? The RSS, which was forced to eat the humble pie at the hands of Vajpayee for two years, struck at the challenger at the right time using the right tools. Vajpayee’s undoing has been his own government’s all-round failures which had led to the defeat of the party in every recent election. The parivar bosses pleasantly realised that even Vajpayee’s ministerial colleagues had felt concerned over the bleak future. The very Vajpayee doctrine of survival through coalitions was found to be faulty. Clinging more to it would be suicidal. A big section in its ranks was ready to revert to the Hindutva extremism even while giving more time for the coalition experiment. When some of the known Vajpayee loyalists too took up the issue with Nagpur and Jhandewalla, the latter found the time ripe for the kill. Gujarat provided a test case for the RSS. So far, the RSS had used its own aggressive outfits like the VHP, Bajrang Dal and SJM to harass Vajpayee. Its new technique of acting through the BJP ranks — right from the Union ministers to the Gujarat crowd — proved deadly for Vajpayee. The current scenario is reminiscent of the pre-rath yatra days when the then BJP president L.K. Advani too had to undergo a similar agonious change. L.K. Advani, more than Vajpayee, had a much closer relationship with the National Front government under V.P. Singh. The Left and BJP which were supporting the government from outside, had been also to influence its decisions. Though Advani considered the arrangement as best under the circumstances, the RSS and an influential section within the BJP had a different view. It was a time when the Ayodhya agitation was building up. When pressure mounted for a change of line from the united front strategy to hard Hindutva, Advani finally yielded and volunteered to jump himself on to the Ayodhya rath. The post-Goa BJP’s changed political strategy is essentially antithesis to the concept of coalition. So far, Vajpayee has been taking the position that “the NDA agenda is our agenda”. The party did not even issue its own election manifesto last time. Recently, Jana Krishnamurthi said that the BJP was still bound by the three contentious issues — Ayodhya, Article 370 and common civil code — and the freeze would last only until next elections. The BJP’s new doctrine allows the party to peddle the hard Hindutva at the organisational level even while the government makes a show of following the NDA agenda. Vajpayee had given weightage to the latter while under the new line the party may risk the government if it came to that. This new short-term dual strategy is expected to give the party enough room for manoeuvring. It is difficult to say how the remaining NDA allies can put up with this tricky situation. |
| Punjab | Haryana | Jammu & Kashmir | Himachal Pradesh | Regional Briefs | Nation | Editorial | | Business | Sport | World | Mailbag | In Spotlight | Chandigarh Tribune | Ludhiana Tribune 50 years of Independence | Tercentenary Celebrations | | 122 Years of Trust | Calendar | Weather | Archive | Subscribe | Suggestion | E-mail | |