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Acquitting a criminal Tatas in world league |
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Beware of “miracle” cures
A Tribune debate
Icon forever
Mistakes being repeated in Afghanistan Israeli wall trapping Palestinians Legal notes
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Acquitting a criminal THE Supreme Court has held that appellate courts should not interfere with the orders of acquittal given by the trial courts unless there are “compelling and substantial reasons”. A Bench consisting of Justice Arijit Pasayat and Justice S.H. Kapadia ruled that the appellate courts should follow this cardinal principle to prevent miscarriage of justice. Significantly, it did not impose any embargo on the appellate court reviewing the evidence upon which an accused has been acquitted. However, it ruled that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to his innocence, the view favourable to the accused should be adopted. Every effort should be made to ensure that the guilty are not acquitted and the innocent not punished. This would prevent miscarriage of justice, it observed. Clearly, the ruling puts tremendous responsibility on the trial court and the prosecution for doing their job competently and impartially. Otherwise, the accused will get away with the crime and make a mockery of justice. This has happened in the Jessica Lall and Priyadarshini Matoo murder cases. The police and the prosecution botched up the investigations and trial, leading to the acquittal of Manu Sharma and Santosh Kumar Singh respectively in the two cases. This stirred the nation’s conscience and a relentless campaign by the media led to the reversal of their thoughtless acquittal that could not be justified in any way. The Delhi High Court has now convicted Manu Sharma to life imprisonment and awarded death sentence to Santosh Kumar Singh after retrials. The Best Bakery case in which the Ahmedabad sessions court acquitted all the 21 accused for “lack of evidence” was another big blow to the criminal justice system. Just as in the Jessica Lall case, almost all witnesses in this case turned hostile for reasons known to them. The Supreme Court intervened, shifted the case from Gujarat to Maharashtra for a fair trial and all the accused are now behind bars. Justice has finally prevailed in the three cases. But the judiciary will need to ponder over the consequences of a shoddy and sloppy trial. To prevent miscarriage of justice and enforce the rule of law, the prosecution and the trial courts must be told to do their job honestly.
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Tatas in world league IT is a moment of honour and pride for India as one of its top business houses has acquired global status and strengthened the image of India as a growing economic power. Though it is not the first time Tatas have taken over a foreign company, the scale is unprecedented and it places Tata Steel in the global league. It will become the fifth largest steel producer in the world. When India started opening up in the early 1990s, India Inc was afraid of competition and unsure of its own strengths. Many business houses even lobbied for protection and a rollback of the process of liberalisation. Today the situation has changed dramatically with Indian companies displaying admirable confidence and taking full advantage of globalisation. At the surface, it may appear Tatas have paid a heavy price for buying the Anglo-Dutch steel company, Corus, but it fits well with their global plans. Tata Steel has grabbed a company three times its size and the two will benefit from distributional, production and R&D synergies. Steel is in great demand thanks to the booming infrastructure and housing sectors in most fast-growing economies, particularly China and India, and fetches good returns. The cash flow will be enough to take care of Tata Steel’s debt. Brazilian firm CSN, the rival bidder for Corus, gave up the battle despite aggressive attempts in the beginning. Unlike the Mittals, whose Arcelor takeover battle had become controversial and even led to a diplomatic row, Tatas are not known as hostile predators. They do it in the gentlemanly way without raising eyebrows. It also reflects their professionalism and honest work culture. Over the years they have picked up Daewoo of South Korea, Tetley of Britain and NatSteel of Singapore without raising howls of protest anywhere. The shareholders respect their integrity and business ethics. Imagine where they would have been had they not been bound by government controls, bureaucratic red tape and political corruption.
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Beware of “miracle” cures IF one is to go by the advertisements that adorn various newspapers, magazines, leaflets and billboards, cures have been already found for diseases like cancer, heart ailments and even AIDS. Not only that, this miracle is supposedly performed not only by semi-literate charlatans who attach numerous fake degrees with their names and even call themselves “doctors”, but also some medical professionals out to promote themselves and their services. Genuine doctors bristle at these fly-by-night operators; thousands of gullible patients waste their hard-earned money and false hopes. There are tall claims about almost every disease on earth. Some such clinics have been closed down but the misleading advertisements of a similar nature continue to appear in bulk even today in most of the country. Union Health Minister Ramadoss, a qualified doctor himself, has admitted that the Medical Council of India’s code of ethics is not being enforced at all by the states. He has now promised to come down heavily on the fraudulent practice. But the state medical councils can step in only if anyone disgruntled with any medical practitioner for advertising or rendering serviced lodges a formal complaint. It will be better if the Supreme Court guidelines in the matter are suitably amended and the state medical councils empowered to take action against the culprits on their own. Another problem is that the MCI Act covers only allopathic medical practitioners registered with it. There should be a stringent mechanism for ayurvedic and Unani medicines also. It is not only spurious medical practitioners who take the public for a ride. There are others who make tall claims about curing everything by practising yoga or pranayama or whatever. Qualified doctors insist that while lifestyle changes may help in better recovery, they cannot substitute proper medical treatment. There is a need for a close watch on such propaganda as well. Then there are numerous advertisements about miracle cures through wearing a particular stone or “rudraksha”. Strangely, mail-order companies advertise these on TV channels on a regular basis without any sort of accountability. Lure of money, not the concern of the public, guides the nefarious pursuit of the quacks. The people need to simply shun them.
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A throw of the dice will never eliminate chance. — Stephane Mallarme
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A Tribune debate
THE recent judgment of the Supreme Court by a nine-Judge Bench in I.R. Coelho v. the State of Tamil Nadu has evoked a lot of comment, mostly appreciating the view taken by the court as to the scope of judicial review of the laws inserted in the Ninth Schedule on or after April 24, 1973. The court has laid down a two-fold test: (a) Whether such a law is violative of any of the Fundamental Rights in Part III? (b) If so, whether the violation found is destructive of the basic structure of the Constitution? The second test is not easy to answer. If the court finds that the impugned enactment damages the basic structure of the Constitution, it shall be declared void, notwithstanding the fictional immunity purportedly given to it by Article 31B. It means even now the immunity granted by Article 31B to Article included in the Ninth Schedule from challenge on the ground of abridgement of a fundamental right is available in respect of laws which, though violative of a fundamental right, do not destroy or damage the basic structure of the Constitution. There are about 139 Acts inserted in the Ninth Schedule on or after the judgment in Kesavananda Bharti’s case which are under a cloud. A large volume of litigation is unavoidable. Articles 31A, 31B and the Ninth Schedule were necessitated because of the judiciary’s interpretation of the right to property (Article 31) disregarding the Directive Principles of State Policy which mandate the State to bring about a social order in which justice — social, economic and political — shall inform all the institutions of the national life, wherein the ownership and control of the material resources of the community are so distributed as best to subserve the common good. The Constitution declares that the Directive Principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws, although they shall not be enforceable by any court. The judiciary initially failed to appreciate the dynamic character of the Directive Principles and the need to facilitate their speedy implementation on its part through appropriate interpretation of the Constitution. In the State of Madras v. Champakam Dorairajan, the court declared that the directive principles were subservient to the Fundamental Rights which are enforceable in a court of law. It was a monumental error of interpretation of the Constitution which took over two decades to realise and correct. The second serious error of interpretation took place when the judiciary was called upon to interpret Articles 14, 19 and 31 while judging the validity of the laws abolishing the zamindari system. The courts adopted a narrow, literary interpretation instead of a purposive interpretation having regard to the constitutional objectives, the promises made to the people during the freedom struggle and the urgent need to bring about socio-economic transformation through land reforms, like the zamindari abolition, ceiling on land holdings, etc. The intention of the framers of the Constitution as to the limited scope of the right to property was evident from the speech of Prime Minister Jawaharlal Nehru in the Constituent Assembly on September 10, 1949, while moving the amended Article 24 of the draft Constitution which was renumbered as Article 31. After the commencement of the Constitution, the laws enacted by the state legislatures abolishing the zamindari system were challenged in different High Courts on the ground that the provisions made therein violated the Fundamental Rights guaranteed under Articles 14, 19 and 31. The Patna High Court held that the Bihar Land Reforms Act, 1951, violated Article 14 inasmuch as it accorded different treatment to land owners in the matter of compensation. The Constituent Assembly, which was functioning as interim Parliament, did not accept this interpretation and proceeded to amend the Constitution. Article 31 had to be amended from time to time in order to get over the interpretation given by the Supreme Court, particularly on the question of compensation. As the Supreme Court persisted in securing compensation at market value to the land-holder whose land had been acquired by the State, Parliament took recourse to the Ninth Schedule adding more laws to it. The Constitution (17th Amendment) Act, 1964, which added 44 Acts. was challenged in Sajjan Singh v. the State of Rajasthan. A Constitution Bench upheld the Amendment. However, two Judges doubted the correctness of the reasoning in Shankari Prasad’s case. Parliament on its part took undue advantage of these decisions and went on including more laws in the Ninth Schedule even though some of them were unconnected with any agrarian reform. This was taken serious note of by the Supreme Court. In Kesavananda Bharti’s case, the Supreme Court, for the first time, propounded the theory of basic structure of the Constitution which cannot be damaged or destroyed by an amendment made by Parliament under Articles 368. In that very decision, the right to property was declared to be not a basic feature of the Constitution. It was with regard to the content of this right to property that the legislature on the one side and the judiciary on the other differed in their perceptions. Finally, Articles 31 was repealed by the Constitution (44th Amendment) Act, 1978, and the right to property, which was the bone of contention between the two powerful organs of the State, has ceased to be a fundamental right. Parliament had the last say. The concept of basic structure is not free from difficulty. The judiciary has not identified the basic structure fully as yet. In Kesavananda Bharati’s case, some judges only illustrated certain basic features. In subsequent decisions, some more features have been identified as constituting a part of the basic structure. The picture is not complete. After the emergence of this novel theory, amendments to the Constitution became vulnerable to challenge in a court of law. In P. Samba Murthy v. the State of A.P., a Constitution Bench declared Clause (5) of Articles 371-D inserted by the Thirty-Second Amendment Articles unconstitutional. The clause conferred power on the state government to modify or annul any order of the administrative tribunal before it became effective. The court held: “It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of the law. Now if the exercise of the power of judicial review can be set at naught by the state government by overriding the decision given against it, it would sound the death-knell of the rule of law. The rule of law would cease to have any meaning, because then it would be open to the state government to defy the law and yet to get away with it. The proviso to Clause (5) of Article 371-D is, therefore, clearly violative of the basic structure doctrine.” In view of this binding decision, it is quite likely that the laws added to the Ninth Schedule after April 24, 1973, after they had been declared violative of any of the fundamental rights may be found to be unconstitutional when tested in the light of the recent pronouncement in Coelho’s case. The first amendment to the Constitution was a constitutional necessity caused by its erroneous interpretation Articles 31A, 31B and the Ninth Schedule have come to stay, having been upheld by the Supreme Court. Only the amendments made to the Ninth Schedule after the judgment in Kesavananda Bharti’s case are open to judicial review because of the doctrine of basic structure. The net result is that Parliament is no longer free to add laws to the Ninth Schedule indiscriminately by invoking its power of amendment in Article 368. The position has become
uncertain. The writer is a senior advocate of the Supreme Court. The earlier articles on the subject appeared in The Tribune on January 15 (by H.K. Dua), January 20 (by F.S. Nariman) and January 29 (by S.C. Kashyap).
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Icon forever MY house in Ahmedabad is 2 km from Sabarmati Ashram. Just half a km away is the old circuit house where Mahatma Gandhi was tried on the charge of sedition in 1922. Yet, Gandhi was never a serious contender to become my teenage daughter Kadambari’s idol. I couldn’t blame her. People of her generation are at a certain disadvantage as far as choosing an icon is concerned. They can spare no time from burdensome studies to understand the personalities and their ideals in any depth. They are victims of the deep-impacting but transient audio-visual images of TV and Bollywood movies. As one image replaces the other on the screen, they too get converted from being the follower of one great personality to that of the other. Kadambari has had people ranging from Mother Theresa to Sonia Gandhi as her icons. The most enduring until now has been Indira Gandhi — for a good two months when the family was reading her biography by Catherene Frank by turns. Then, when Condoleeza Rice visited India her photos got pasted everywhere in my daughter’s room. We were happy that at last she had someone with an impressive academic record as her idol. Alas, it lasted but a few days, for then she saw the movie “Rang De Basanti”. Ergo exit Rice and enter Bhagat Singh and his associates. She acquired a revolutionary fervor of which the first target was her mother and I, as if we were the Britishers who had hanged her icons. Worse, it coincided with the preparation for her annual exams. Instead of devoting herself to the studies, all day she played the song, “I am a rebel...na koi padhne wala, na koi seekhne wala.” My wife and I got worried but we did not know what to do. As a godsend came Sonia Gandhi’s resignation on the office of profit issue. Kadambari found a new icon and was able to focus on her studies again. After that, we never bothered to check who was her reigning idol. Then, we saw the movie “Lage Raho Munnabhai”. Kadambari’s reaction was predictable. Returning home, the first thing she did was to remove the Mahatma’s photo from the study and gave it a pride of place in her room. He, I knew, would remain her icon forever because like him she also wants to become a lawyer. Moreover, who can replace
Bapu?
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Mistakes being repeated in Afghanistan THE British Raj learned the hard way a century ago that the Pashtuns, Afghanistan’s largest and historically dominant ethnic group, will unite to fight a foreign occupation force simply because it is foreign. Applying this lesson to the Afghan crisis today, British generals have been attempting in vain to change a high-profile US-NATO military strategy that is helping the Taliban consolidate Pashtun support in southern Afghanistan. Bombing and strafing attacks on suspected Taliban hideouts killed at least 4,643 Afghan civilian noncombatants from October 2001 to Oct. 1, 2006, according to an exhaustive study by University of New Hampshire economist Marc W. Herold. The result has been the steady growth of anti-American sentiment focused on the US-backed regime of President Hamid Karzai. “The cruelty is too much,” Karzai declared last month. In tears, Karzai said that the coalition forces are “killing our children. We can’t prevent the terrorists from coming from Pakistan, we can’t stop the coalition from bombing the terrorists, and our children are dying because of this.” The British model for a new approach to defusing the Taliban insurgency has unfolded recently in the Musa Qala district of Helmand province. Following bitter clashes last summer between British and Taliban forces, the Musa Qala tribal council, acting with British approval and backed by Helmand’s governor, Mohammed Daud, negotiated a cease-fire in early September that led to a 15-point peace agreement. The accord provided for an end to the Taliban offensive, the withdrawal of British forces and the creation of a local militia that would replace the ineffectual central government police and army units in the district. After peace prevailed for 35 days, the British pulled out on Oct. 17. Peace still prevails. Nevertheless, Karzai, under intense US pressure, fired Daud and appointed a new governor who disowned the accord as a sellout to the Taliban. The British commander of NATO forces in Afghanistan stands by the agreement, but US spokesmen say that his American successor will order British forces to resume fighting in Musa Qala when he takes over shortly. Attacking the peace deal, US Ambassador Ronald Neumann declared that “if you have an area that is under the Afghan government flag but is not under the actual authority of the Afghan government, then you are losing in a very big way.” Other critics emphasize that Taliban fighters were not disarmed under the agreement. But the accord has given tribal elders the whip hand over the Taliban in the area and is so popular that many neighboring districts want to emulate it. Why criticise the agreement before the elders’ ability to contain Taliban influence could be tested? Is it really “losing in a very big way” if Pashtun leaders make local peace deals that work? Only if “victory” is defined in terms of an unrealistic goal of rapid centralisation in a still-feudal society that has never been centralised. For three centuries the Afghan state has been just barely a state, and ethnic and tribal communities paid obeisance to Kabul only if it accorded them autonomy. The communist regime installed by Moscow in 1978 aroused bitter opposition by attempting to centralise overnight. Now the US-backed Karzai government is making a similar mistake by rushing to create a centralized regime instead of keying the process to the gradual development of a national economic infrastructure. The central government has a critical role to play in combating the Taliban, but primarily through more effective economic assistance, with less accompanying corruption, not through military intervention that bypasses the tribal structure. The fledgling national police and army have a role in areas where tribal leaders want their help. But they are tainted in the eyes of many Pashtuns by their identification with a Kabul regime dominated by non-Pashtun ethnic rivals. In 2001 the United States lined up with the Tajik ethnic minority, whose small military force, the Northern Alliance, helped dislodge the Pashtun-based Taliban and has subsequently dominated the Karzai government. Tajik generals and their proxies still control the army as well as key secret police and intelligence agencies hated by the Pashtuns. Karzai, a Pashtun, has attempted to soften Tajik domination with Pashtun appointments to top security jobs, but the real power remains in the hands of a US-backed Tajik clique. The Taliban is effectively exploiting Pashtun dissatisfaction with Kabul, recruiting many of its fighters from disaffected tribes in the Ghilzai branch of the Pashtuns, who resent the favoritism Karzai has shown to higher-status tribes such as his own Durranis. Mullah Omar, the key Taliban leader, is a Ghilzai. But there are two other important reasons for the Taliban’s growing strength: the support it is getting from Pakistan and Pashtun anger over the civilian casualties resulting from the indiscriminate use of US air power. To prevent a continued Taliban upsurge, the United States should condition future economic and military aid to Islamabad on meaningful measures to shut down Taliban camps and staging areas on the Pakistani side of the border. At the same time, the Pentagon should shift to a low-profile military strategy in which air attacks are the rare exception and peace initiatives like those of the Musa Qala elders are welcomed. The writer covered Afghanistan as South Asia bureau chief of The Washington Post and is the author of “Out of Afghanistan: The Inside Story of the Soviet Withdrawal.” By arrangement with
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Israeli wall trapping Palestinians
A British government-funded report says the route of Israel’s separation barrier is trapping 250,000 Palestinians in enclaves designed to protect Jewish settlers in the occupied territory. It says that the creation of the enclaves cutting Palestinian communities off from the rest of the West Bank “almost totally ignores the daily needs of the Palestinian population” and is “focused almost exclusively on the desire to maintain the fabric of life of Israeli settlers”. The highly critical report – which says that the existence of some Palestinian communities is threatened by the barrier – was produced by the Israeli planning and human rights organisation Bimkom. The research was jointly funded by the New Israel Fund and the British Embassy in Tel Aviv. It says that the barrier is cutting employment for Palestinians and isolating farmers from their markets, causing “particularly serious damage” to residents’ health care needs and undermining social and family life. The report focuses on two categories of cut-off communities in the West Bank. The first are “seam enclaves” between the barrier broadly to the east and the 1967 green line to the west and comprising around 8,000 residents whose movements into the rest of the West Bank, where 2.5 million Palestinians live, are now heavily restricted by checkpoints. Pointing out that residents in such enclaves now require a military permit, the report says that “Palestinians whose families have lived there for centuries must now acquire permits, without which their mere presence in their homes and villages constitutes an offence.” The second – and larger – category are “internal enclaves” which are bound in, sometimes virtually encircled, by the barrier and roads forbidden to Palestinians to protect “fingers” of occupied territory inhabited by Jewish settlers and to ensure the settlers’ access to Israel proper. The report cites the example of the Bir Nabala enclave in which residents of five villages traditionally linked to Jerusalem as a social, religious, and economic centre will now have only two ways out, through tunnels, to Ramallah or the area of the West Bank village of Biddu. The report also says that despite a series of Supreme Court decisions in favour of rerouting the barrier in some areas to ease the plight of Palestinians, “there has been no meaningful change in the system of considerations guiding the planners”. Mark Regev, the Israeli Foreign ministry spokesman said that the barrier had had a major effect in reducing suicide bombings and added: “For Palestinians there is an issue of quality of life; but for Israelis it is one of life or death.” Israel’s defence minister Amir Peretz has spelled out a three-stage Middle East peace initiative tied to a timetable. By arrangement with
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Legal notes AN interesting case pertaining to the withholding, by the centre, of compensation received from Japan for the kin of victims massacred by its forces in the Andamans during World War II, has been filed in the Supreme Court. This was done by an organisation formed by the affected families. The court took cognizance of the matter and issued notices to the Union Government, the Lt. Governor of the Andaman and Nicobar Islands and the Chief Secretary of the union territory, and sought their replies to the petition by the Hamfrygunj Martyr’s Memorial Committee. It came to know of the Japanese government paying Rs 15.30 lakh as settlement amount to the war victims’ families and Rs 20.70 lakh as compensation, way back in 1963, after an agreement reached between the two countries. But nothing was paid all these years, and matters came to light only during the NDA regime, when that government was almost on its way out. The committee approached the Apex Court after the Calcutta High Court declined to intervene in the matter. The petition gives vivid details about the butchering of 915 innocent civilians by the Japanese forces between March 1942 and August 1944, in different incidents, when the Andamans was in their occupation. The committee said that the amount of Rs 36 lakh paid by Japan in 1963 was of a substantial value at that time and the victims’ families should now be compensated adequately for the apathy of the government. The petitioners described it as a true example of red tape-ism and government’s ‘insensitivity’ to the people living in far-flung areas.
Misuse of judiciary for settling scores The uneasy relations between coalition partners JD(S) and BJP in Karnataka came to the fore in a case pertaining to illegal mining taken up by the Supreme Court, in which it had initially issued a notice of contempt against saffron party leader Janardhan Reddy. But the order was recalled after it was found that his name was wrongly inserted in the list of respondents though he was not a party to the mining case either before the High Court or the Apex Court. Chief Justice of India K G Balakrishnan, heading a three-judge bench, termed it a very serious issue of ‘misleading’ the court and using the forum of judiciary for settling political scores. The contempt petition was moved by advocate H Siddanna, a JD(S) activist and allegedly a close confidant of Chief Minister H D Kumaraswamy. Reddy had recently launched a campaign against Kumaraswamy accusing him of indulging in corruption in leasing out mines. A visibly perturbed CJI said the lawyers in the highest court of the country were not expected to hide facts and mislead the court. The Supreme Court cannot be expected to function like this and anyone who ‘misleads’ it was not entitled to any relief, the CJI said. He pointed out that the Court could even withdraw the order ‘suo motu’ without waiting for any application from the other side.
Bank pension only if opted for The pension scheme introduced by the public sector banks with the approval of the Reserve Bank of India would only be available to those employees who had opted for retirement under it, but not for those who chose to seek the superannuation benefits under some other scheme. This was ruled by the Supreme Court in a recent judgement, making it clear that even compassionate grounds could not be made out for granting the pension to an employee. The pension scheme introduced in 1970 in public sector banks provided for employees to make a clear choice, as to whether they would like to retire under it or an earlier scheme when pension was not applicable. But the Bombay High Court had granted pension to an employee of the Union Bank of India, who had not opted for it, but filed an application later as a second thought requesting the management to include his name in the
pension scheme. But his application was rejected on the grounds that he had lost the opportunity as he had already been covered under the earlier retirement scheme. The Apex Court found fault with the High Court order and set it aside, holding that such an interpretation of a statutory provision could not be sustained.
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A man who fights on certain conditions should not be selected to lead the army. Who can predict the conditions of battle? If the situation changes and he refuses to fight, the army is left headless. —The Mahabharata Your names are countless, O Lord! I do not know their end (But of one thing I am sure that) there is not another like you. —Guru Nanak Know the Self as lord of the chariot, the body as the chariot itself, the discriminating intellect as charioteer, and the mine as reins. —The Katha Upanishads If God helps you, then no one can overcome you; and if God forsakes you, who could help you then? So let believers put their trust in God. —The Koran
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