The Tribune, Chandigarh, India

EDITORIALS

Why can’t DM take action?
Khaps must be punished

THE trauma Sonia of Asanda has been subjected to is not likely to have an early end. The television channels are now chasing her story. On Friday the Asanda panchayat met again at the request of Sonia’s father to review its direction to her and husband Rampal to live as sister and brother. The panchayat has decided to meet again on October 24 to examine the gotra evidence for deciding the legality of the marriage. Until then Rampal’s and Sonia’s trauma will continue.

The Tribune has talked to the husband and it was clear that it was Sonia’s act of defiance that made Rampal go back on his decision to accept the irrational and revolting order. However, the avoidable tension has told on her health. Doctors at the PGI, Rohtak, want her protected from further trauma. This is an important condition for saving the unborn. But what is the district administration doing to shield her and Rampal from continued harassment by the community elders, sitting in judgement on what she should do? Absolutely nothing. It is shocking that the Deputy Commissioner of Jhajjar, Mr Mohinder Kumar, is waiting for a formal complaint for the harassed couple. If he knew his job or had some human concern, he would have booked the members of the khap for intimidating the couple 18 months after their marriage and causing social tension.

The episode is now no longer a local issue. A number of lawyers and women’s organisations have decided to take on the Asanda khap. Their initiative deserves to be welcomed. However, the Haryana government should prepare a plan of action for dealing with any situation that may arise out of the proposed direct action various organisations propose to take in defence of Sonia and Rampal. There are indications that the Asanda community elders’ decision may force the Centre and various state governments to place curbs on their powers through appropriate legislation. Such reforms are overdue because in the past khaps have tried to play havoc with the lives of couples for daring to marry outside of their castes. No organisation should be allowed to get away with meddling with Sonia’s and Rampal’s lives and indulging in social coercion.

Censoring Kher
CBFC chairmanship is not political

AS if the removal of Governors on a change of government was not unseemly enough, the Congress-led alliance has gone a step further and removed Anupam Kher as Chairman of the Central Board of Film Certification (CBFC). At least in the case of Governors, the appointment is also generally on political lines. That is not true in the case of the censor board. Anupam Kher was asked to head it because he was an eminent film and theatre personality. By removing him forcibly and appointing Sharmila Tagore in his place, the government has taken political vendetta a little too far. The way the Ministry of Information and Broadcasting secured a “charge report” from Ms Tagore when Mr Kher refused to step down was less than graceful. The government has tried to claim that Mr Kher has not been removed for political reasons. But it is only a claim.

His ouster has been accompanied by an undesirable spinoff. The CBFC, which used to be listed among the autonomous organisations under the I and B Ministry, has now been put on the list of “media units”. That is indication enough that the government would be using it more firmly as a handmaiden.

This is a wrong precedent which may spawn many more such controversies in the days to come. There appears to be no difference between the ways of Mr Jaipal Reddy and those of the BJP’s Sushma Swaraj, his predecessor. They have contributed considerably to further eroding whatever is left of the credibility of the government’s media policy.

Outcome in Arunachal
Apang and Mithi hold the key to stability

THE Congress victory in the Arunachal Pradesh Assembly elections does not come as a surprise. The credit for its success should necessarily go to Chief Minister Gegong Apang. But there is nothing to crow about its achievement because in the 1999 elections, the Congress captured 51 seats in the 60-member House — 17 more than its present strength of 34. Moreover, the fact that nine of the 13 elected Independents are Congress rebels indicates the extent of dissension in the party. The Bharatiya Janata Party’s score of nine is impressive for the simple reason that it drew a blank in the last elections. Having completed two decades as Chief Minister with a break in between, Mr Apang will surely try to match Mr Jyoti Basu’s long record of 23 years as West Bengal’s Chief Minister.

Political instability continues to haunt the state because of the politics of opportunism being practised by Mr Apang and Mr Mukut Mithi, the former chief minister. The Congress got a thumping majority in the Assembly last time, but it could not last long. When Mr Mithi faced rebellion following his bid to downsize his ministry in July this year, in line with the 97th Amendment of the Constitution, Mr Apang toppled his government and became the Chief Minister. He got 59 of the 60 MLAs defected to the BJP. However, he soon returned to the Congress to be closer to the Congress-led United Progressive Alliance at the Centre.

Over the years, Mr Apang and Mr Mithi have been trying to undermine each other’s influence and outsmart the other in political chicanery and one-upmanship. Both have won the elections and are in the same party now. Mr Mithi may have lost some clout now as many of his loyalists have lost the elections. But one cannot underestimate him. Consequently, the new government can provide stability only if the two leaders shed their personal egos and strive unitedly for the welfare of the state.

ARTICLE

Hanging is out of date
Justice does not require it
by Subhash C. Jain

ARGUMENTS for and against Dhananjoy Chatterjee, who was recently executed, reflected desperation, for, policy decisions on such a vital issue could not be taken on the basis of an individual case. The issue must be decided in view of the merits of the arguments for and against death penalty.

The arguments in favour of Dhananjoy — that he was poor and could not get proper legal assistance or that he was convicted purely on circumstantial evidence — do not cut much ice when taken in isolation. Of course, delay in a case has influenced the courts in the past to award the accused lesser penalty than death. However, that alone may not suffice in a particular case.

Way back in 1980, the apex court in India had decided that death sentence could be awarded only in “the rarest of rare cases”. The majority judgement was given by Justice R.S. Sarkaria on behalf of the Bench. However, the Bench upheld the constitutional validity of capital punishment. The dissenting judgement was given by Justice P.N. Bhagwati, who could not be persuaded to pronounce in favour of such a punishment. The judgement of Justice Bhagwati was confined to cases of murder and not other cases covered by the offence of waging of war or spying.

Justice Bhagwati’s main plank was that the legislature had not laid down any norms or guidelines for the judiciary to decide when to exercise its discretion and award capital punishment. Nor had the judiciary indicated what constituted the rarest of rare case in which capital punishment was permissible. Therefore, according to Justice Bhagwati, the judiciary could not award a punishment which was irreversible. If it was eventually discovered that a convicted person was innocent, there was nothing that a judge could do. Moreover, different Benches decided the matter differently causing irreparable injustice.

In the United States, since 1973 over 100 condemned prisoners had been released on account of credible claims of innocence. Justice Bhagwati noted the international trends and came to the conclusion that Section 302 of the Indian Penal Code which provided for capital punishment read with Sub-Section (3) of Section 304 of the Code of Criminal Procedure was constitutionally invalid.

At the end of 2002, 76 countries had abolished death penalty for all crimes, while 15 had abolished it for all except certain crimes under military law or wartime crimes. A further 20 countries have not executed anyone for the last 10 years. The deterrent effect of death penalty has also not been established by any empirical study.

It appears that 95 per cent people sentenced to death could not afford a lawyer to defend their case. Therefore, fairness of the death sentence becomes highly suspicious. The United Nations Human Rights Commission has passed a resolution calling upon all the nations to restrict the number of offences for which death penalty may be awarded and to suspend executions so as to eventually abolish it. The states have also been urged to observe international safeguards, particularly barring death penalty against children.

The Committee of Ministers of the Council of Europe, consisting of 44 members, has adopted the Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms with regard to the abolition of death penalty in all circumstances. Thus, the European countries may soon abolish capital punishment altogether.

The second Protocol to the International Covenant on Civil and Political Rights and the Protocol to the American Convention on Human Rights to Abolish Death Penalty also provide for the total abolition of capital punishment and allow the states to retain it only during war-time if a reservation is made in that respect while ratifying or acceding to these protocols.

Recently, a coalition called the World Coalition against Death Penalty was constituted in Rome to ceaselessly work for the universal abolition of capital punishment. Former UN High Commissioner for Human Rights Mary Robinson commended the launching of this coalition which, according to her, confirmed the trend towards banning capital punishment.

A study commissioned by the US Senate Committee on the Judiciary, the first part of which was published some three years back, came to the conclusion that death penalty in the United States was “collapsing” under the weight of errors.

The worldwide studies, therefore, suggest that the introduction of capital punishment would not solve any problem. The emphasis should be on law enforcement. In fact, the time has come to review the desirability of capital punishment even in the rarest of rare cases in India. The history of the punishment and the experience amply show that it is most likely to be inflicted upon the poor who can ill afford to engage costly and effective counsel to defend themselves.

In the Indian context, it is true that Dhananjoy Chatterjee was poor, but death penalty in all cases in our view should be decided by empirical evidence of its deterrence rather than other factors. It cannot be decided by judicial niceties such as observance of the due process or faith in the judicial system.

Also, the fact that murders or deaths in several other cases are condoned by the state is no justification to continue death sentence, which is outdated and crude. Public opinion should be moulded in the right direction so that everyone views death penalty with distaste. Human rights groups have to be more active. The government and the judiciary in India need to once again review whether we require capital punishment. The Indian society needs more people of the calibre and attitude of Justice P.N. Bhagwati to bring about a social revolution on the issue.

The writer is a former Secretary, Ministry of Law and Justice, Government of India.

MIDDLE

Miss-taken identity
by Chetna Keer Banerjee

SOME people may not get the compliments they deserve to hear. And some may get to hear compliments that are not for their ear.

I had the unenviable luck of falling in the latter category recently.

A rather vocal, not silent, admirer chose to chant odes to a woman’s beauty. And I happened to be at the receiving end---of the cell phone, that is.

The moving (mobile) speech ran something like this:

The caller asked for a name in a saccharine tone.

“Yeh Sondhi ji ka number nahin hai,” I answered curtly, irked by the familiarity in his voice.

“Sondhi ji nahin, maine kaha soni ji,” the caller’s tone dripped honey.

This unexpected flow of lyricism over the mobile immobilised me into speechlessness. The lines were certainly well delivered, though at a wrong number. Even as I snapped shut my set, I felt my face breaking into a half-smile, half-frown. Who was this lady who had such a poet-in-the-making for a suitor, I wondered.

I may have suffered a temporary loss of words but this caller had words and more words with which to connect to his fair friend. And he made full use of his cell to indulge in his ‘fair-tell.’

“Kuchh to kaho, soniyo,” he said cajolingly when I greeted another call from him with a stony silence. Now, who was this lady whose supposed sound of silence was causing this man so much discomfiture?

Never had I heard a studied silence on my part inspiring anyone into such poetic eloquence. How I wished my silence had this lyric-producing effect on my man instead! My musings on the matter were interrupted when boom came his voice from the other room.

My husband had decided it was time not for silence but plain speak. This miss-take could only be checked with man-to-man talk. In the exchange that followed, the provider of melodious ‘hello tunes’ turned into the carrier of harsh ‘fellow tunes’. The superlatives from the other end were now countered with expletives from this side.

It was made clear to the caller that this was a connection that was simply ‘out of range’. The calls stopped. The message had gone home loud and clear.

Or so I thought. Until the phone rang the other day and the much familiar voice cooed ardently, “Sukhi…”

Ah, there it was! So, this was the name of the lady for whom those endearments were meant. But the revelation didn’t come at the best of times. Being addressed as ‘Sukhi’ in the middle of an official assignment certainly left me dukhi.

OPED

Birmingham Track II
Transparency, trust best CBMs
by Maj Gen Ashok K. Mehta

Jawans of India and Pakistan at flag-lowering ceremony at Wagah border. — PTI

THE Track II wallahs are way ahead of politicians and officials pursuing the composite dialogue and CBMs. Barring the complex core issue for Pakistan — Kashmir — and the less interactable but linked problem for India of cross-border terrorism, they have nearly agreed drafts on conventional and nuclear CBMs, the core concern of the international community. At least one India-Pakistan joint group has been meeting since last year to craft military CBMs sponsored by the British foreign office at Birmingham University, UK.

The last joint meeting was held over three days a week before Gen Musharraf and Dr Manmohan Singh met at New York. Among this group was Mr Shaharyar Khan who leads the Pakistani side. He is also Chairman, Pakistan Cricket Board (so he had one eye fixed at the Champions ICC Trophy at Edgbaston). Shahryar hails from Bhopal’s royalty and studied at Dehra Dun at the Royal Indian Military College and was Foreign Secretary for seven years. He served five Prime Ministers and three Presidents and signed with Muchkund Dubey, the agreements on prevention of air space violation and advance notification of military exercises in 1991.

Sample the flavour of Pakistani thought at this meeting. A lingering suspicion of the Congress and doubts about where real power now resided. The failure at Simla was attributed to the Pakistan military’s absence at the talks. The belief that only a BJP and military-led government could hammer out a deal on J&K remains. The India-Pakistan cricket series in Pakistan was held out as the best CBM, so good that the deputy chief of the Jamat-e-Islami congratulated Shahryar Khan for playing cricket with India. The costs for Pakistan on account of Operation Parakram were finally acknowledged. Siachen was described as being in “adverse possession of India” and the new fencing on the LoC “an act of betrayal”. But never mind, we can still do business with India, said the Pakistanis and came around recognising that the peace process was irrevocable due to the upsurge in the people-to-people movement.

The Birmingham Track II recognised existing treaties/CBMs. These are: the Indus Water Treaty 1960, the Tashkent Declaration 1966, the Simla Agreement 1972, Agreements on prevention of airspace violation and advance notification of military exercises 1991, Foreign Secretary-level talks joint statement 1997, the Lahore joint statement and memorandum of understanding, 1999.

Barring the DGMOs’ hotline, all previous CBMs are dormant. The first requirement was, therefore, to revive and review existing CBMs and have an institutionalised review mechanism. The most important but unsung CBM that has kept the current peace process on track is the Pakistan-initiated ceasefire on the LoC and International Border beginning November 25 last year. This has had many spinoffs. It has three advantages: the most obvious, no transborder firing and hence no casualties. On an average, three to four Indians and approximately the same number of Pakistani soldiers and three to five civilians on both sides would lose their lives every month. A saving of Rs 30 crore a month has resulted from the guns being silent.. The people on both sides of the LoC can now lead a normal life.

Eleven military CBMs were proposed by India. These include agreement of Peace and Tranquillity along the LoC and establishing new communication links between Navy and Air Force; Reactivation/reestablishment of communication links at Division/Corps Commander level at Karu (Leh) and Kargil-Gilgit, Baramulla and Kupwara-Murree, Rajouri-Jhelum, Srinagar and Nagrota-Rawalpindi and Jammu-Sialkot

These will be taken up for discussion by a joint technical group. In addition measures to strengthen the nuclear stability regime were suggested at Birmingham. At present both countries annually exchange lists of nuclear facilities together with a Non-Attack agreement. It was proposed that non-attack on population centres and major economic assets could be added to this agreement. In the August meeting between officials this year, India handed over a revised draft on advance notification of Ballistic Missile Flight Tests. Pakistan has now accepted a discussion of this proposal. Both sides have agreed to cooperate in multilateral fora especially with P-5 countries about recognition of their nuclear status. It was suggested at Birmingham that their unilateral moratoriam on nuclear test ban be made bilateral. Pakistan wanted India to include its Cruise missile, namely Brahmos, in the Ballistic Missile class and subject it to notification. Similarly, tests of ballistic or Cruise missiles should be included in the 1991 Agreement on Advance Notification of Military Exercises if these were being deployed.

More discussions were required on nuclear vocabulary, nuclear doctrine, red lines and no first use. Unlike India, Pakistan does not have a draft doctrine. Neither side, it emerged, is keen on identifying red lines as these get one into a commitment trap. On the other hand it was necessary and useful for each side to be familiar with the other’s rules of engagement and to indicate what constitutes unacceptable or intolerable behaviour. It was also suggested that ballistic missiles like the Prithvi and Hatf series that are considered destabilising due to ambiguity and weapon load should be put on the banned list, ideally not deployed or at the very least, kept outside a no-deployment zone. There was striking unanimity over pulling nuclear CBMs out of the box. During the Cold War, it was pointed out, nuclear CBMs preceded conventional CBMs. But there is no reason why these can’t be done in tandem. The risks to the present peace process arise from spoilers indulging in “intolerable and dangerous acts of violence” like hijacking of aircraft, hostage taking and a venal terrorist attack. It was suggested that a crisis and media management groups be established to defuse any untoward situation.

In the end CBMs are only as good as the sincerity and the political will of the two sides. The key to functioning of existing treaties, agreements and CBMs is transparency in implementation and trust.

DELHI DURBAR
Bangaru Laxman’s appeal

The decision of the UPA Government to scrap the Justice S.N. Phukan Commission and hand over the probe into the Tehelka expose to the CBI prompted the main accused in the case and former BJP President Bangaru Laxman to knock at the doors of the BJP Headquarters. The day the UPA Government revealed its intention, Laxman immediately called up BJP president M Venkaiah Naidu and sought the party’s support to fight the case.

Laxman is understood to have told Naidu that the case in which he was allegedly involved had happened when he was president of the party. As he is not an accused in the case as an individual, the party should extend all the support to defend himself. To buttress his point, Laxman is believed to have given the example of top BJP leader L K Advani. He reminded Naidu how the party and the cadre rallied behind Advani and extended all possible help when he was accused in the Jain Hawala case.

Shivraj Patil for Maharashtra?

There is hushed talk in the corridors of power that if the Congress-NCP combine retains power in Maharashtra, then Union Home Minister Shivraj Patil might be moved to the western state as the Chief Minister. It is widely perceived in Congress circles that Patil is not cut out to be the iron man of the country as the challenges are multifold.

Congressmen are quick to suggest that Prime Minister Manmohan Singh is awaiting the outcome of the Maharashtra assembly elections before undertaking the much talked about reshuffle of his Cabinet. As a senior Congressman, Patil needs to be accommodated without loss of face. Thus, Maharashtra is one of the options being talked about in hushed tones in Congress circles.

Latest on Varun Gandhi

Despite the continuing speculation on Varun Feroze Gandhi switching loyalties, the latest is that the young politician-poet is not joining the Congress party nor has he received any invitation in this regard. Reliable sources maintain that Varun has not met Congress president Sonia Gandhi or either of his cousins — Rahul or Priyanka.

Changing colours

Changing colours or a so-called home coming is not new in politics but the merger of the Haryana Vikas Party with the Congress has something unique. Generally, interested parties initiate such moves but in this case a better half played a key role. Though HVP chief Bansi Lal and his son Surender Singh are both old Congressmen, Kiran Chaudhary played a critical role. The former Deputy Speaker of the Delhi Assembly and Bansi Lal’s daughter-in-law used her good offices to pave the way for the homecoming of her husband and father-in-law into the Congress. If things go well in future for Surender Singh, it will be another reminder that there is a wise woman behind every successful man.

Contributed by Gaurav Choudhury, Tripti Nath, Raj Kumar Singh and Prashant Sood.