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CrPC Bill: Centre’s decision a setback for reforms On Record |
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Importance of
corporate governance
Falling standards of research Profile Diversities
— Delhi Letter
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CrPC Bill: Centre’s decision a setback for reforms IT is most unfortunate that the Centre has deferred the implementation of the Code of Criminal Procedure (Amendment) Bill, 2005 indefinitely following protests by lawyers and objections by the Bar Council of India against some of the provisions. Not all points raised by them are logical and convincing. Undoubtedly, the Centre should have consulted the lawyers and civil society alike before going ahead with the Bill. The lawyers say that some provisions are draconian in nature. These include prompt arrest of an accused after rejection of his anticipatory bail, confiscation of property of an accused who has repeatedly evaded the court process and the magistrate’s power to recommend to the prosecution filing of an appeal in a criminal case even if the offence is not of a serious nature. But in our country jumping bails, evading trial by not appearing before the court and ineffectual prosecution is the norm which millions of pending cases and poor conviction rates prove. In such a situation, the said amendments would have tightened the noose against criminals. Objections, therefore, seem uncalled for. First, as regards the prompt arrest of an accused after the denial of anticipatory bail, lawyers say that this would deprive the accused of his option of appealing to a higher court. However, a careful study in recent times suggests that it is only a handful of VIPs like Nawab Pataudi and Gautam Goswami who have been able to exercise this option to appeal. Greater number of accused cannot afford this expensive option and hence, rarely appeal against rejection of their anticipatory bail. On the contrary, it would greatly benefit the masses if an accused was arrested expeditiously before he can tamper with the evidence against him. Secondly, there is opposition to the amendment which confers powers on the magistrate to recommend to the prosecution the filing of an appeal in a criminal case even for petty offences. It is said that this would put pressure on the magistrate to award enhanced punishment even for minor offences. But this is not true as the quantum of punishment is determined on the basis of the gravity of the offence, age of the accused and other well-settled factors on which the judges rely. It is unjustified to presume that merely because this change has been introduced the magistrate would be forced to award enhanced punishment. Thirdly, in the present system, if an accused fails to appear before court continuously on the specified date and time, he could be declared a proclaimed offender. The amendment to Section 82 allowed the court to confiscate the proclaimed offender’s property. The lawyers feel that it would infringe the rights of the accused for, until he/she was found guilty, the court could not order property seizure. Even though the absconder is not yet guilty of the offence, he is still guilty of evading the process of law. To ensure that trials are concluded within a reasonable period, strict provision is needed to ensure the attendance of the accused. The amended provision sought to correct the anomaly in the system. Some concerns are, of course, genuine. For instance, the judicial magistrate presently conducts parades to help eyewitnesses identify the accused. Now under Section 54 A, even the village administrative officer, the tahsildar and the police could hold the identification parades. This would certainly give more powers to the police who are known for registering false cases for money or other undue favours. Their concerns, therefore, are legitimate. Notwithstanding these provisions, the Bill has many positive features like the one concerning women, undertrial prisoners and those involving the law of arrest. For instance, any person held in police custody would be entitled to have one person informed of his arrest and place of detention. Similarly, Section 46 of the code provided that no woman could be arrested after sunset and before sunrise, except in exceptional circumstances where the woman police officer may do so after obtaining written permission of the concerned Judicial Magistrate. The provision for compulsory medical check-up of rape victims within 24 hours and mandatory judicial inquiry in all incidences of custodial death and rape are also salutary as they would help secure justice for victims of sexual offences and police atrocities. The new amendments are definitely a blessing to the undertrial prisoners who have been suffering in the jails in direct violation of the fundamental principle of criminal jurisprudence (innocent till proven guilty). The amendment provided that where a person has already undergone detention amounting to one-half of the maximum period of imprisonment specified for that offence shall be released by the court on his personal bond and even without surety. This would ensure that the beneficial provision is extended to the poor who constitute majority of the undertrial prisoners. This amendment would play a vital role in overcoming the problem of overcrowding of jails, which is one of the main reasons for the abhorrent prison conditions in the country. Whatever the objections raised by the legal fraternity, one thing is clear that we waited for more than a decade for this amendment and thus, we needed it urgently. Moreover, in spite of some major shortcomings, there are many positive amendments that no one can overlook. What is shocking is that the Centre bowed to the pressure even after it got the Presidential assent. This also casts serious doubts about the process of legislation and the way laws are getting legislated. This problem could have been avoided had the Centre invited the views of all those associated with the criminal justice system and tried to arrive at a consensus on how to curb the prevailing evils in the system without affecting the rights of the accused who are believed to be innocent till proven guilty. In the light of the protests against some of the provisions of the CrPC Bill, what all the stakeholders should aim now is that at least positive provisions like those mentioned above were implemented at the earliest. The government may notify these amendments in the Gazette, excluding the implementation of the contentious provisions, till the matter is put to rest after due deliberations. The undertrial prisoners, rape victims and those who died in police custody have already waited for too long to get their due and it won’t be prudent to deny it to them any
longer. The writers are associated with the Commonwealth Human Rights Initiative, New Delhi
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On Record
A mechanical engineer by profession and a keen follower of telecom, IT and civil aviation issues, Nilotpal Basu, 49, is the leader of the Communist Party of India (Marxist) in the Rajya Sabha. He was first elected to the Upper House in 1994. Since then, he has been a member of several parliamentary committees. Known for calling a spade a spade, the articulate, bespectacled leader from Kolkata, in an exclusive interview to The Sunday Tribune, highlighted the issues that the Left parties would raise in the monsoon session and the strategy it is formulating to pin the government on issues where it has differences and where the UPA government has acted beyond the letter and spirit of the Common Minimum Programme. Excerpts: Q: The monsoon session of Parliament is commencing from Monday. What are the issues that the Left parties, especially the CPM, would take up? A:
Some of the legislative issues that we would like to raise and have substantial discussion include the Employment Guarantee Bill, the tribal forest dwellers’ right in the Forest Bill, the Women’s Reservation Bill and legislation for agricultural workers. Q: Why were the Left parties unhappy with the Employment Guarantee Bill which had to be referred to the Standing Committee? A: We weren’t happy. The Standing Committee has given several useful suggestions which the government would hopefully incorporate in the Bill. If that is done, it can be easily passed. Q: The Women’s Reservation Bill is a contentious issue. Will the government bring forward the Bill? A: The Left parties are in favour of this Bill as envisaged in the original format. Women’s reservation has two-thirds support of political parties as per their publicly stated position. If the government brings forward the Bill, it is open to suggestion. But there should be an effort to explore its enactment by Parliament. Q: The Pension Bill is another issue which the Left is vehemently opposed to. Is the Left still negotiating with the government to facilitate its passage in this session? A:
We cannot support the Pension Bill in the present form. As pension is the only social security measure, we cannot accept the fund to be invested in the capital market. We have had certain discussions with the government. We hope that the government and the Left work out a mutually acceptable solution. Q: Apart from the legislative business, what are the other issues that the Left parties are planning to raise? A: We want to have substantive and structured discussion on several issues like agrarian crisis, rural indebtedness, paucity of funds for agricultural sector, lack of irrigation, Mid-Term Appraisal by the Planning Commission, foreign policy with emphasis on the progress made in the talks or as the case may be in the neighbourhood and Indo-US relations including the defence co-operation framework. We are also interested to discuss about extremism and oil price hike etc. We hope that the Opposition would not stall the proceedings and allow Parliament to function. Q: Will you raise the BHEL issue which could embarrass the government? A: We have articulated our concerns to the UPA Chairperson Sonia Gandhi. We are awaiting the response of the government. We expect that the BHEL disinvestment issue will be amicably resolved. If that happens, there would be no need for us to raise the issue. Q: The Left parties, especially CPM General Secretary Prakash Karat, has been vocal in criticising the Indo-US defence agreement. Will the Left demand the government to put it in the cold storage? A: We would certainly demand a discussion on the subject. We have raised specific objections like India being part of the multinational forces which does not have the UN mandate. We have questioned missile cooperation as part of the grandiose US plan of setting up missile shield. Interestingly, experts in Washington are questioning the missile shield strategy itself. Q: Prime Minister Manmohan Singh, during his visit to the US, has signed the nuclear energy cooperation pact, which is being hailed as a breakthrough agreement between the two countries. What are your comments? A: As nuclear energy cooperation is a highly technical issue, we are studying it. We could bring up this issue in Parliament for discussion. Our concern is more on India’s capacity to pursue our nuclear programme for peaceful purposes autonomously. While retaining that independent space, if help is forthcoming, we will have no problems. But this is an issue that we need to examine in greater detail. Q: Will the Left parties try to utilise the opportunity to pin down the government? A: The Left has never been aggressive. It has been responsive, persuasive and insistent on the government to implement the Common Minimum Programme, which is the basis of the support being extended by the Left from outside. On issues where the government has gone beyond the CMP, or on those issues with which we have different views we have articulated our concerns. Our position on issues has nothing to do with the present state of the Opposition NDA, which has failed to play the constructive role they ought to play in a parliamentary democracy. The failure of the Opposition to play its role has led to this
situation.
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Importance of
corporate governance THE concept of corporate governance has assumed great importance today. In the past, the Indian corporate world suffered from corruption, lack of transparency, low disclosures and rigging of market prices. However, in today’s competitive corporate world, such fraudulent malpractices have no place. Corporate governance received an impetus when the Securities and Exchange Board of India (SEBI), on the recommendations of the Kumar Mangalam Birla Committee, mandated that in the Listing Agreement there shall be an insertion of a code of governance. Having realised its importance, the Centre introduced amendments in the Companies Act, 1956 and other laws. Corporate governance is concerned with values, vision and visibility. It is a potential agent for changing the existing ways of working. It is the process by which people in power direct, monitor and lead corporations to realise maximum growth. The Indian companies can survive if the employees put in their best effort. But performance alone is not enough. They must have the burning desire to excel. The companies too should not hesitate to reward their workforce. They should perform their social responsibilities and provide the best quality product or service. Corporate governance can best be achieved through a combination of regulatory and voluntary actions. On the regulatory side, government interventions are most effective when they are enforced consistently and expeditiously. It ensures accountability so crucial for the safety and performance of assets and resources entrusted to the Board of Directors. Many captains of industry, corporate leaders and top executives are keen to usher in good corporate governance. Corporate governance leads to maximisation of wealth, growth, expansion and diversification. It ensures supply of goods and services to society and community. Customer-company relationship improves. There is consistent relationship between the shareholder and the management. Revenue to the government increases and tax effect is positive. Good corporate governance also leads to better managerial remuneration and increasing earning per share. Maximising shareholder’s wealth is the cornerstone of corporate governance. If the returns received are higher than the required minimum, the company is creating shareholder value. The key to good corporate governance lies in minimising costs and other expenses. It is suggested that all the companies, whether public or private, should put up on their websites their memoranda of association which contains six clauses. One of the six clauses is the objects clause which indicates as to where the investors’ money is to be put. All the activities of the company which go beyond the objects clause are ultra virus of the company. This would bring about greater
transparency. The writer is Lecturer in Commerce, Guru Gobind Singh College, Sector 26, Chandigarh
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Falling standards of research Universities are the inimitable refractors and fountainhead of knowledge and new information that drive and propel societies and civilisations towards higher accomplishments. It is due to the proliferation of knowledge in the universities through profound thinking, research, investigation and exploration of the unknown phenomena by the scholars and intellectuals engaged therein that the modern civilisation has attained the pinnacle of glory and even boasts of vanquishing the forces of nature. However, if the new knowledge is spurious, contaminated and distorted, it can cause incalculable harm to posterity. While the universities are known as the grooming grounds for quality human capital for a society, defective training and knowledge once imparted may foster untold frustration and disillusionment among the youth. This may prove to be the root cause of disequilibrium and instability in societies, manifesting in social tensions and strife. The most pertinent way through which the universities generate new information and knowledge is through doctoral research. Indian universities and research institutes together produce about 13,000 Ph.Ds every year. But only a few of these make a genuinely significant contribution to the growth of knowledge. It is almost ubiquitously known, how in many cases topics for Ph.D are casually framed and nonchalantly sifted through Research Degree bodies; and how friendly examiners finally approve such themes for the grant of Ph.D degrees with gay abandon. Many trite propositions are speedily researched which ultimately gather dust on the shelves of university libraries, resulting in a flagrant wastage of time, money, energy and a distorted knowledge accumulation. Many of these are made the basis for further research, and thus a vicious circle of defective knowledge generation and transmission sets in. It simply looks incredulous, how a university professor who has been entirely engaged in non-teaching administrative assignments since the very beginning of his career, could successfully supervise about 24 doctoral theses! The quality of such hurriedly and furtively accomplished doctoral research would remain hopelessly suspect. That is why, to nip the malpractices in the Ph.D programme in the universities, the Maharashtra Government in its recent guidelines on the eligibility criteria for Ph.D registration and the process of submission of doctoral theses in the state’s universities, has invoked sweeping changes to enhance the standards of Ph.D. These guidelines manifest a bold confession of the malaise in research in universities, and need to be emulated in other universities too. Almost identical is the case of the publicly funded research projects in the universities. Every year a large number of research projects are awarded and funded in the universities by public and private organisations. For instance, during 2000, universities, colleges and deemed universities together were granted over 1,300 projects involving a cost of about Rs 130 crore, out of which the UGC alone sanctioned 413 projects involving a funding of Rs 5 crore. But hardly any of the research results of these projects could be patented and subsequently commercialised. Some of these which could be commercialised were either economically too unviable, or ended up with defective products resulting in a colossal wastage of public money. Likewise, thousands of books are published every year in India. Many unscrupulous and avaricious publishers have mushroomed over the years, who only have an eye on pecuniary gains, and would not mind publishing any manuscript without proper screening, scrutiny and peer review of its quality and possible impact. The information and analysis contained therein may or may not be authentic and veritable. The books thus published permeate the markets and find way into the libraries of schools, colleges, universities and research establishments, and become a part of the contemporary stock of knowledge. Now if this knowledge were ingenuine and perverse, it would be read and imbibed by the future anchors of society, and it may not be hard to visualise the colossal damage that such books may perpetrate on us. The same is the case with research journals. In 2000 alone, Indian universities and research institutes together published about 2055 professional and academic journals. But only a miniscule minority of these are truly refereed ones to ensure the veracity and authenticity of the published research papers. Many of those, which are proclaimed to be refereed, have only favoured and friendly referees on their panel. Articles after articles by scholars are manipulated to be squeezed into such refereed journals without genuinely authentic certification of their quality and originality; and thus pseudo and phony knowledge keeps on percolating to every nook and corner of the academic realm. The university researchers and scholars have an immense responsibility towards society and posterity by making honest and just contribution to the growth of knowledge through their spontaneous research. Their objective should be to add quality to the existing knowledge rather than recklessly inflating the heaps of shoddy research publications to be conspicuously recognised. This can be realised more by the scholars’ own personal commitment and self-resolution, than through extraneous pressure of rules and guidelines. Prime Minister Manmohan Singh recently proposed to constitute a Knowledge Commission to stimulate the proliferation and consolidation of advanced research and knowledge in the country to make our knowledge base consistent with the world standards. Such a Commission should also be entrusted with the responsibility of overseeing and monitoring the quality and veracity of the current research in the universities. Stringent guidelines should be laid down for the publication of research results in research journals published by universities and institutes, involving public money. The ministries and departments concerned should concertedly rein in unscrupulous and unethical publishing houses by making it mandatory on them to get each manuscript peer reviewed before publishing and circulating it in the market and libraries. The universities must closely watch the publications of the mushrooming academic and technical institutes and should enforce strict norms of quality education and research therein. Finally, a system of rewards and punishment should be institutionalised so as to reward a premium and a meritorious research and writing, while deterring punishments should be slapped on plagiarised and fake writing as in the Western countries. Only that would discourage and deter many people from plagiarising others’ work and generate fake knowledge, solely with the objective of usurping somebody else’s claim on recognition and fame, through wicked
ways. The writer is Professor of Economics, Guru Nanak Dev University, Amritsar
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Profile Besides being a physicist, ecologist, activist and author of a number of books, Dr Shiva is a tireless defender of the environment. Her book Water Wars: Privatisation, pollution and profit has been acclaimed the world over. She writes: “While draught and destruction are intensifying around the world, corporations are aggressively converting free-flowing water into bottled profits. The water wars of the 21st century may match — or even surpass — the oil wars of the 20th century”. The first movement that taught her about the importance of water was the “Chipko” movement in the early Seventies. Women came out in the Himalayan villages hugging trees and saying, “We won’t let them be logged. You’ll have to kill us before you kill our trees”. They were scoffed at by the government — “logging is a big revenue in these regions”. Women remained firm and replied equally forcefully: “The real yield is water, soil conservation and fresh air and not timber”. By early Eighties, the forest policy changed to ensure that catchment forest’s first function was water conservation and not revenue through cutting trees and denuding forests. The ban on logging in the high Himalayas was the result of the “Chipko” movement. Dr Shiva says ordinary village women with no formal education taught the world one of the biggest water lessons. To her too, it was her big “water lesson”; cutting the forests means drying of streams and spate of floods and drought. Subsequently, she was commissioned by the Union Ministry of Environment to look at the impact of mining in the Doon Valley. As the years rolled by, Dr Shiva’s campaign against biotechnology and genetic engineering made her internationally known. She has helped movements in Africa, Asia, Latin America, Ireland, Switzerland and Austria against genetic engineering. Her contributions to gender issues are recognised nationally and internationally. As a young girl gazing at the natural wonder of her homeland, the verdant valley of Dehra Dun and splendid Himalayas, Vandana was inspired not so much to preserve nature as to figure out how it works. Her ambition was neither to follow the footsteps of her father, a conservator of forests, nor emulate her mother, a farmer with a profound love for nature. Vandana wanted to follow her hero, Albert Einstein. Nuclear Physics was her chosen specialisation until she realised that science had a fliside too. She changed course to become a theoretical physicist and subsequently an environmentalist. Dr Shiva has her critics also. They accused her of seeking to block humanitarian food donations to desperate people and attempting to block the access of India monsoon flood victims to critical US food donations based on false allegations that such food pose health threats. She defended the “indefensible” decision of the Zambian government to lock away US grain in government warehouses, they say. This type of grain was declared completely safe by US regulators years ago and Americans have been eating it for over half a decade. Shiva also opposed what critics describe as “wonderful new golden rice” under development. It could save millions in developing countries from death and blindness due to Vitamin A deficiency, it is argued. “Ultimately, Shiva is no friend to sustainability, either. The very crops she was desperately fighting against have been engineered to require less application of pesticides, tremendously reducing the use of chemicals. “The developing world’s growing population cannot sustain “heroes” such as these”, said three men working with Hudson Institute in a letter to the Time’s Editor, soon after the magazine conferred the “Environmental Hero Award” on Dr
Shiva.
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Diversities
— Delhi Letter ARE we going backwards? No, not just by way of bleak power and water output, but seeing the Jinnah mania that’s gripped us. Maybe, the Partition chaos had been simmering in our psyche for too long and just about needed the go ahead by that one utterance. For so weak we have been rendered, in the actual sense of the term that till a so-called leader gives the go ahead we dare not open our mouths and minds. Last fortnight whilst I was at the Constitution Club to attend a meet on Justice V.M. Tarkunde, the adjoining hall was more than packed. Then, there had been focus on M.A. Jinnah on two occasions, about a book release and a film on him. In the evening, the documentary, Chris Mitchell’s Mr Jinnah: The Making of Pakistan was screened at the IIC Auditorium. It was raining heavily. Yet the auditorium was packed. Even as the people in the audience came out, there was much discussion on the Pre-Partition Lahore and several were overheard recounting those nostalgic tales. Interestingly, an ageing Punjabi lady who had spent her formative years in pre-Partition Lahore insisted on stressing that the film laid too much emphasis on “Muslims playing a significant role during the Partition, whereas its we Hindus who were politically active that time. Why did they lay so much emphasis on Muslims?” Today’s generation could be in a dilemma on the whole issue of Partition. I think it’s important to quote Asian Age Editor M.J. Akbar. For just about 10 days back during the course of a public talk, he said that it’s time we held an in-depth discussion on Partition and those responsible for it. “For, for the last 55 years the Indian Muslim has had to pay the price for it”. And now comes in the news that there is coming up an international seminar on Partition. Titled ‘The Partition of India revisited: Thinking through and beyond violence, trauma and memory’, it will be held in New Delhi on August 24-26. Organised by the Centre of Refugee Studies, Jadavpur University (Kolkata), in collaboration with International Centre for Peace Studies, Foundation for Universal Responsibility, International Institute for Mediation and Historic Conciliation and WISCOMP, the two-day long discussion will be spread out in three different venues — Ashoka Hotel, India Habitat Centre and India International Centre. Karan Singh’s
book in Urdu Dr Karan Singh’s autobiography has been translated into Urdu. It is all set to be released here on Aug 1 at the Centre for Jawaharlal Nehru Studies (Jamia Millia Islamia). JMI Vice-Chancellor Mushirul Hasan will preside over the function. Titled Safar-i-Zindagi, published by Gulshan Books of Srinagar, it would be released by former Prime Minister Inder Kumar Gujral. I am yet to read it. So can’t comment, but Dr Karan Singh does speak with much wit and humour. Hopefully there will be traces or abundance of both, together with adequate baring of facts and happenings from his life. Muriel
Wasi’s contribution Another book on another personality could bring forth much. Titled The Narrow Corridor: Moments In A Woman’s Life, by Muriel Wasi, it is published by Bibliophile South Asia and would be released here on July 27. Though Muriel Wasi passed away in 1995, she was one of those who’d be there through her writings and the work she had done in the field of education. Educated at the University of Madras and at the Oxford University, it is during the World War II that she served in the Directorates of Military Public Relations and Public Liaison in South India, Assam, Delhi, editing three war journals. In 1952, she joined the Union Ministry of Education, edited The Education Quarterly for several years. She also worked as a consultant in Area Studies to the US Office of Education. After her retirement from GOI, she taught at some of the leading colleges in the Capital. There’s a detailed mention of her and her life in R.V. Smith’s recently released book on Delhi and its people. Muriel had married a Muslim zamindar who was academically inclined. She was so enchanted by the Mughals that she named her only daughter Jehanara, after the famous Mughal Princess. Not just blessed with those traditional great features, she is one of the best editors in the city and at any given time can be seen busy
editing.
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In the battle for existence, talent is the punch, and tact is the clever footwork. —Book of quotations on Success A man who meditates on him, worships him, experiences the ultimate bliss. —Guru Nanak Intelligence is the bridle and conscience the chariot driver. —The Upanishads Make us happy and you make us good. —Book of quotations on Happiness The senses are to the body as horses to a chariot. —The Upanishads Be satisfied with success in even the smallest matter, and think that even such a result is no trifle. —Book of quotations on Success
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