The Tribune, Chandigarh, India

Justice in Mumbai
The terrorists deserve death

IN a country where judicial delays are so common it does not come as a surprise that it has taken six years even for a special court set up under the Prevention of Terrorism Act (POTA) to bring to justice three persons found guilty of as heinous a crime as planting bombs that claimed 52 lives in Mumbai in 2003. Finding the case in the “rarest of rare” category, the POTA court has rightly given the death sentence, which should send a strong message to terrorists. However, procedural or motivated delays defeat the very purpose of the death sentence. The way the trial of Ajmal Kasab, the 26/11 Mumbai attack accused, is proceeding with the media reporting his every tantrum does not inspire hope for early punishment matching the severity of his crime.

Usually women criminals are spared the death penalty. But in this case the woman involved, Fehmida, has been shown no leniency. Her daughter, however, was let off for being a minor at the time of the crime. Fehmida is the second woman to get the death sentence for an act of terrorism in India. Nalini Murugan, a co-conspirator in the assassination of Rajiv Gandhi, was the first woman to be given the death penalty. Her sentence was later commuted to life.

Opinion may be divided on the efficacy of the death sentence in acting as a deterrent to terrorists or suicide-bombers who are often ideologically or emotionally motivated to even sacrifice their lives for their cause. But if the death sentence has to be awarded, its effect should not be diluted by unnecessary delays. Mohammed Afzal Guru, involved in the attack on Parliament, is still in the death row. There is no alternative to swift, efficient police action and a foolproof prosecution case resulting in early conviction.

Murder of love
No honour in these killings

Young lovers wanting to decide for themselves whom to marry have no luck in India, it seems. They can either fall foul of caste panchayats, which can dictate terms to them about whom to exclude, even if the law of the land has no objection. Or they can be bumped off by their family members for bringing “dishonour” to the family. That is the fate that awaited a youth and a teenaged girl of Rohtak district on Wednesday. They were beaten up and strangled to death, allegedly by the girl’s family members. At least this incident came to light. Many others take place in Punjab and Haryana where relatives and even neighbours do all they can to ensure that the police does not get a scent of such murders. The notion of honour is so strong that any trace of independence shown by a man or woman, even if they are of legally permissible age, is considered a sin.

Murder is of course the extreme form. Many other lesser atrocities are also committed on those daring to go against the wishes of their parents. All this continues because some people refuse to acknowledge that there is no honour involved in these criminal acts. By enforcing their writ on their relations, they are perpetrating a criminal act and must pay for it.

What is particularly disgusting is the enforcement of an archaic value system under which a love affair between a boy and girl belonging to the same village itself is considered a sin. It is compounded if they also happen to belong to the same gotra. Trying to socially boycott such couples or trying to get their water supply cut comprise patently illegal activities. Reasonable sections of society must ponder over the menace. The State can only provide police protection. But it is for social organisations to bring about reforms so that customs which are a throwback to a bygone era do not continue to plague 21st century India.

Thought for the Day

You can make more friends in two months by becoming interested in other people than you can in two years by trying to get other people interested in you.
— Dale Carnegie

ARTICLE

The right to be born
State must take care of its citizens
by Harpreet Giani

Adolf Hitler was the first and foremost believer in the racial supremacy of the German people and was obsessed with the idea of a pure race, physically and mentally perfect. In “Mein Kampf”, he bemoaned the loss of what he called Germanic ethos and rededicated himself to the goal of a Germany in which there would only be pure-blooded individuals, conforming to his vision of a mentally and physically perfect race.

Disconcerting echoes of this ideal of physical and mental superiority were heard in Courtroom No 11 in the Punjab and Haryana High Court recently.

The court was hearing the arguments concerning the fate of an unborn child, conceived in the womb of a person who was possibly of unsound mind, and who, it was said, could not discharge the onus that society places on a mother.

The child was not the result of a union of love or even of consensual lust — the child was the result of one or more heinous rapes perpetrated on the unwitting woman. The child was the result of the failure of the Union Territory of Chandigarh to protect a person it had labelled mentally retarded and whose safety and welfare was its primary duty.

But what was in issue in Courtroom No 11 was not the question of whether the woman had been raped or not; nor even the question of what punishment should society mete out to those guilty of violating a defenseless woman. The question that had been brought before the court by the guardian and representative of the people was whether or not to pass the death sentence on the unborn child of the destitute woman.

The law recognises several situations where an abortion is legal and acceptable. The acceptable reasons for an abortion include the decision of the woman herself (in case she was raped or if the contraceptive she used failed — causing her grave mental anguish) and also cases where the continuation of the pregnancy poses an imminent and real danger to the life of the mother.

In this particular case, however, the pregnant woman was said to be mentally unsound — her mental condition was described to the court to be that of a six-or-seven-year-old child. It was, therefore, argued most ably and most unfortunately by the high representative of society at large that her inability to appreciate the joys of motherhood, or her inability to look after the child would impose an undue burden on society and the baby must, therefore, be killed before it had drawn a single breath.

The counsel for the Union Territory of Chandigarh was at his eloquent best when he argued in favour of abortion. The underlying subtext was there for all to see — the woman is retarded and herself a destitute burden on society — the child is likely to be retarded and an even greater burden on society — no one would be benefited by letting the child live. So kill it.

What was unsaid or perhaps not appreciated in the court over the several days that the doyens of the legal profession argued, even as the miracle of nature was taking shape in that woman’s womb, was that the only and the sole reason for the existence of the state is to protect its citizens and to provide them with all that they need to live with dignity and in peace. It remained unstated in the court that while executing the social contract, we — the people — did not sign over the right to be killed, terrorised or needlessly incarcerated on the whims of the Leviathan.

Having failed in its primary duty to protect the weak and the infirm, how could the Union Territory of Chandigarh possibly hide behind callous statements in the doctors’ reports that “She did not volunteer for sex and did not like the sexual act” in order to avoid its further duty to the woman and her unborn child?

What was probably not urged before the Judges and what the judgement does not, therefore, say is that every child who is conceived has the right to attain an identity distinct of its mother — the right of being born. The exceptions that we as a people have carved out are only three-fold. Either the mother must not be desirous of giving birth; or the pregnancy threatens her very life. The last exception being, that there is credible medical evidence that the child is going to be born with congenital defects so grave that it would be cruel to bring him or her into this world.

The second and third exceptions were clearly ruled out by the doctors’ reports. Shorn of the unnecessary and obfuscatory text, the doctors clearly said that there was no reason to believe that the child was likely to be handicapped or retarded; and that there was no reason to believe that the woman’s life was endangered.

The only limb of the exceptions left was the issue of the desire of the mother. In this case, it was deemed that the alleged mental retardation of the woman precluded her from giving her consent to the continuation of the pregnancy and her statement that she wanted the baby was, therefore, discounted as irresponsible.

Without going into the complex issues of morality and legality incidental to such a stand, it was lost sight of in the court that the culmination of a pregnancy in a birth is the rule and an abortion merely an exception, invoked in limited cases — and only where there is a conscious desire arising from mental or physical trauma or necessity to invoke it. No consent — maternal or medical — is required to proceed with a pregnancy. But a conscious decision to terminate it is the essential requirement for an abortion.

In the case at hand, standing in as the parent of the unfortunate violated woman, the state urged the court to order termination. The reasons for such a prayer are most unfortunate and most unconscionable.

The first reason was that she was a destitute woman, incapable of looking after herself and, therefore, incapable of looking after the child. The second was that the child was the consequence of a rape. The third was that the child would be a perpetual burden on society. Another reason invoked was of her being unable to financially provide for herself or her child.

None of these reasons can stand in the way of the child being born. It is the sole function and raison d’être of the state to provide for and to raise and nurture such people. The state which cannot look after its unfortunate is a state which has lost its conscience and a state which has lost its moral right to be called a state.

The unfortunate judgement sums up thus, “We also cannot overlook the fact that if allowed to be born, the child’s own life, grooming and future prospects may itself be highly disappointing.” These words “allowed to be born” are chilling and speak volumes about the assistance which was rendered to the court. No child is required to petition a court for the right or permission to be born. No court — legal, ecclesiastical, social or otherwise — can arrogate to itself the right to allow or disallow children from being born.

The conclusion, “For the reasons stated above and in continuity of our previous order dated 9th June, 2009, we direct the petitioner — Administration to act promptly and forthwith medically terminate the pregnancy of the victim in terms of Para 38 of our previous order dated 9th June, 2009.” is an indictment and a death sentence pronounced on a child who has yet to be born. It flies in the face of each and every theory of human rights and in the face of humanity itself.

Judgements, it is said, are a reflection not of the judges’ intellect or capacities. Judgements are a reflection of the assistance received by a judge in the court. Bad cases and bad submissions make for bad judgements and horrendous precedents. By all standards of legal morality, this judgement was an abomination.

MIDDLE

Au revoir, My Lord
by J.L. Gupta

Small in size. Soft in speech. Unassuming in disposition. But at his place of work, the Supreme Court of India, this small little man – Mr Justice Satya Brata Sinha, stood like a tower. Every cell in his body emitted the energy of an atom. Application and industry were his instruments. Hard work, a habit. A good memory, an unfailing asset. Today, on his 66th birthday when he bids bye to the Court, a word in praise is his legitimate due. In fact, it is the debt that we owe to his virtues.

After a successful career at the Bar, he was elevated to the Bench of the Patna High Court in March, 1987. In May, 1994, he was transferred to Calcutta. He was appointed as Acting Chief Justice in 1999. Then he took over the reins of the Andhra Pradesh High Court as the Chief Justice in December, 2000. He was transferred to the Delhi High Court on November 26, 2001. He was then elevated to the Supreme Court on October 3, 2002. Today, he has completed more than 22 years as a Judge. Truly, a long tenure. Qualitatively, a very fruitful one.

The contemporaries look at the man. Posterity judges him by his work. To those like me, who have only seen him at work, he was erudite but not arrogant. A hard task master. But not harsh. Industrious but not intolerant. Knowledgeable. Yet, not presumptuous. Totally committed. Decent and dignified. Good and gracious. Patient and persevering. In his court, what mattered was the case. Not the face. He saw the cause. Not the counsel.

Posterity shall see his work. They will have a lot to applaud. Each volume of the Law Reports containing the judgements of the Court shall bear testimony to the hard work that this frail little man put in. Each of his opinions is invariably a review of all the past precedents on the point in issue. And he did this day after day. Week after week. Month by month. During all the years that he adorned the Bench at the Supreme Court. To him duty was like debt. He discharged it without delay or demur.

Today, we lament the backbreaking delays of law. In certain cases, there is delay even in the delivery of decisions. But never when Justice Sinha had heard the case. He has been prolific and prompt. His example is ‘graven on the rock.’ It is worthy of emulation.

And despite the heavy load of work, he never missed an opportunity to attend conferences, seminars or symposiums and share his knowledge. He was often seen at different high courts, judicial academies, law schools and universities. He worked like a horse and lived like a hermit. He carried a clear conscience to bed every night. Today, he can look back with satisfaction.

Au revoir, My Lord! A very happy birthday! May your clan multiply!

OPED

Secret deal to keep Karzai in power
by Jerome Starkey

With less than two weeks to go until national elections, the Afghan President, Hamid Karzai, is trying to cut a secret deal with one of his rivals to knock out his leading contender and ensure a decisive victory to avoid the chaos that a tight result might unleash.

Afghanistan’s second democratic polls threaten to split the country along sectarian lines. That would risk undermining US and British-led peace efforts which are already under pressure from a resurgent Taliban.

Mr Karzai and his main challenger, Abdullah Abdullah, hail from different ethnic groups and different regions. If neither wins outright in round one on 20 August, officials fear Afghanistan could be engulfed by violence reminiscent of the civil war of the 1990s.

“The whole country is armed. Everybody has weapons. You have to keep everyone happy,” an Afghan analyst said. Mr Abdullah’s campaign staff have threatened to hold demonstrations should Mr Karzai win, insisting that he could only do so fraudulently.

Mr Abdullah’s supporters, who are largely Tajik, have warned of Iranian-style protests, but “with Kalashnikovs”, should the President win a second term. Although Mr Karzai, a Pashtun, is still the favourite, his supporters fear that a third candidate, Ashraf Ghani, could split the Pashtun vote, depriving the President of the 51 per cent share he needs to win, and opening the door to Mr Abdullah.

On Thursday, details emerged of how the President was trying to join forces with Mr Ghani to unite the Pashtun vote and knock Mr Abdullah out of the race. Officials said the President had offered Mr Ghani a job as chief executive – a new post described as similar to prime minister.

“If Ghani agrees to the terms, Karzai will dump his team and move forward, with Karzai as President and Ghani as chief executive,” a campaign official told The Independent last night.

Richard Holbrooke, the US special envoy to Afghanistan and Pakistan, and Karl Eikenberry, the US ambassador, are understood to have discussed the proposal with Mr Ghani late last month. “It makes sense,” a policy analyst with close links to the US administration said. “Holbrooke likes Ghani, and he has come round to the fact that Karzai will probably win.”

The idea of a chief executive was hatched in Washington as a way of handing the responsibility of running the government to a skilled technocrat. Mr Ghani has an impressive pedigree as a former university professor and finance minister. Two years ago, he was a contender to head the World Bank. What he lacks – and what might make the deal attractive to him – is the grassroots support that Mr Karzai and Mr Abdullah enjoy.

Sources close to the President’s inner circle confirmed that they had made an offer to Mr Ghani two weeks ago and the President’s brother, Qayum Karzai, had made the first approach. His argument was that Mr Ghani couldn’t win “and even if he did, he couldn’t hold on to power”.

“For Karzai it’s logical,” said a businessman with friends in the President’s team. “He doesn’t want to divide the Pashtun vote, and if it goes to a second round he’s going to lose.”

US embassy officials have denied any involvement in back-room deals. Foreign diplomats are desperate to avoid being seen to be influencing the election but the international community is equally keen to avoid bloodshed when the results are announced.

On Thursday night, Mr Ghani’s staff said he was campaigning as usual and had no plans to pull out of the race. They said the Mr Karzai’s offer was proof of their own candidate’s strength.

The President, who has been in power since US-led troops overthrew the Taliban regime in 2001, has been criticised for his lack of control outside of the capital, the slow pace of development and endemic government corruption, but many people admire him for weaving friends and enemies together. “He has always played a game with the Northern Alliance, the Hazaras and the warlords,” said the Afghan analyst. “Giving people positions and promises, he was very clever keeping everyone together.”

During this election campaign, Mr Karzai has made deals with tribal leaders and local strongmen, promising them positions and patronage in exchange for the votes they control. International officials believe as many as 20 cabinet positions have already been pledged. It is unclear what would happen to these deals if Mr Ghani came on board. However, some observers believe the deal could signal the emergence of a unity government. “Everyone realises that winner takes all won’t work,” said one.

Violence, already at its worst since the Taliban were ousted after the September 11 attacks, has increased in the run-up to the poll. Yesterday brought news of a bomb attack on a family heading to a wedding in Garmsir, in Helmand province. Five people were reported killed. In a separate attack, in Naad Ali, five policemen died when a bomb exploded near their vehicle.

In western Afghanistan, a roadside bomb killed four US Marines, bringing the death toll of Western troops for the first week of August to at least 15.n

— By arrangement with The Independent

Punjab in financial mess
by Bikram Singh Virk

THE 2009-10 budget of the Punjab government has tried to present a rosy picture of the state finances, but all is not well and the state is heading towards a financial crunch due to the burgeoning committed expenditure, indiscriminate subsidies and a marginal increase in revenue receipts.

The revenue and fiscal deficit of the state is on the rise and was budgeted at Rs.4,234 crore and Rs.7,660 crore for the current fiscal year, compared to the last fiscal’s Rs 1,000 crore and Rs 4,365 crore.

The revised estimates of both escalated to Rs.3,812 crore and Rs. 6,856 crore with the former increasing 3.8 folds and the latter by 57 per cent due to a decline in the projected revenue receipts, which fell from Rs 24,261crore to Rs. 22,919 crore.

The current year deficit will be mainly due to an upward revision of the pay scales, for which Rs. 3,000 crore has been earmarked, and an increase in interest payments on the mounting debt of the state.

The committed expenditure of the government comprising salaries, pensions and interest payments has increased substantially to Rs. 18,242 crore translating into 81 per cent of the total revenue receipts, whereas last year it was slated to be 69 per cent, but was later on revised upwards to 77 per cent of the receipts on account of a shortfall of revenue receipts.

The falling revenue and increasing expenses coupled with massive subsidies has led to a massive increase in the debt burden of the state. The total outstanding debt, which was Rs. 48,344 crore in 2006-07, will mount to Rs 63,217 crore by the end of the current fiscal, showing an increase of Rs 14,873 crore in just three years at the rate of Rs 4,933 crore a year.

The mounting debt is leading to a higher outgo on account of interest payments, which will be massive Rs 5,349 crore for the current year, being 20 per cent of the revenue receipts and 29 per cent of the committed non-plan expenditure.

If the amount of debt repayment of Rs 6363 crore is also added, the total outgo for debt servicing goes alarmingly to Rs 11,712 crore, being 45 per cent of the total revenue receipts, against the benchmark of 22 per cent, putting the state into a virtual debt trap.

A loan of Rs 11,021 crore will be raised by the state during the year which reveals that the government is borrowing to repay loan and interest on the same. The outstanding debt of Haryana is much lower at Rs. 39,654 crore for the fiscal 2009-10, a little more than half of Punjab’s.

In the wake of the increased expenditure, the performance of the state on the revenue front is also dismal as against the total revenue expenditure of Rs.30,306 crore, its revenue receipts remain at Rs.26,072 crore, falling short by Rs 4,234 crore or 14 per cent of the total revenue expenditure.

The tax and non-tax revenues comprises Rs.14,062 crore and Rs.5,433 crore whereas Rs 4,577 will be by way of the share from central taxes and grants and another Rs 2,000 crore will be arranged from other sources not mentioned in the budget.

The major chunk of tax revenue is contributed by VAT, which accounts for 60 per cent of the total revenue receipts, and the balance 40 per cent by state excise, stamp duty, tax on vehicles and electricity duty.

The state has only five heads for tax revenue, which are too few and it has to rely only on the traditional tax sources. To bridge the widening gap between revenue receipts and expenditure, it needs to widen its tax net and explore new sources of tax.

The poor financials for the last many years have cast a shadow on the growth numbers of the state, with the growth rate remaining low at 5.13 per cent during the 10th Plan as compared to the national average of 7.8 per cent and has been projected at 5.9 per cent for the 11th Plan, whereas the country will grow at 9 per cent.

The state plan is also suffering due to a resource crunch and has been hiked by only 16.4 per cent to Rs 8,625 crore compared to the previous fiscal. A major portion of the plan funds is spent on non-plan items. For example, Rs 2,597 crore or 30 per cent of the total plan size, will be spent on giving subsidy to the PSEB for free power to the farm sector or purchase of power from the market instead of capacity addition or improving the supply network.

If the things are not set in order at the earliest, the state may find it difficult to meet its salary and pension liabilities in the near future. It is time the state government moves to explore new sources of revenue and shun the indiscriminate subsidies to save itself from a financial catastrophe and a debt trap.

Inside Pakistan
by Syed Nooruzzaman
Will Musharraf be tried for treason?

The Pakistan Supreme Court judgement declaring the November 2007 emergency unconstitutional has led to a feeling in almost every section of society that the days of military dictators are gone. The verdict has emboldened the democratic forces. There is new enthusiasm among political parties, particularly the rank and file of the PML(N).

Political commentators have been of the view that if Gen Pervez Musharraf, who imposed the emergency to perpetuate his arbitrary rule, is tried for the offence (high treason) he committed he cannot escape death punishment. But will he really be tried?

Going by what the newspapers say, it is difficult to believe that the Pakistan National Assembly (parliament), where the General’s trial should take place in accordance with the apex court verdict, will be able to punish him for trampling the 1973 constitution.

Prime Minister Yousuf Raza Gilani wants a “unanimous” resolution to be adopted by parliament to launch the trial which does not seem to be possible under the circumstances. It will be, therefore, interesting to watch the debate that will follow after the PML (N) of Mr Nawaz Sharif comes out with its promised resolution for nailing General Musharraf.

The Daily Times says, “The November 2007 emergency order of General Musharraf names some people as ‘consultees’, and among them are also the officers in the military high command, including the current Army Chief. The rumour is that the Army has communicated its view about any trial of General Musharraf to the Supreme Court through a leader of the lawyers’ movement.”

The News expressed the view that the trial must happen “to set a precedent for the future. But priority must also be to move on, and see what we (Pakistan) can do now to recover from the many ills that held us back in the past.”

Pro-woman measure

In a country where women find it difficult to live a life of dignity, the enactment of a law to curb domestic violence has been long overdue. Thus, the Domestic Violence Act, passed by the Pakistan National Assembly, is bound to provide great relief to women. It is to be adopted by the Senate, but that cannot be a problem.

According to The Nation, “One form (of violence against the fair sex), for instance, is that of stove-burning, a crime that involves killing a woman by burning her up and later attributing the death to the stove explosion as if it was some accident. Likewise, women are regularly harassed in cases where division of property is concerned. The conditions in the rural areas owing to lack of education are simply worst….”

However, law alone is not enough. There is need to change the very mindset of society, which is traditionally biased against women. There is a question mark over the implementation of the law. As The News says, “A key factor will be the question of how the law will be implemented. The police will inevitably play an important role. The task of investigating crime and following up complaints is essentially one that falls on them. This, too, is the area where problems have arisen in the past. Women bringing charges of violence against husbands or other family members have often failed to secure cooperation.”

Troubled minorities

Pakistan, which has been experiencing social tensions for a long time, cannot afford to add to its worries on this front. Hence the move to review the blasphemy law after the killing of seven Christians on Saturday at Gojra in Punjab. This law has been coming in the way of punishing anyone resorting to violence against minorities.

According to The Daily Times, Prime Minister Yousuf Raza Gilani on Thursday visited Gojra and declared that “A committee ... will discuss the laws detrimental to religious harmony to sort out how they could be improved.” The federal government has announced Rs 100 million as aid for the victims. The same amount of aid will be given by the Punjab government too.

Punjab Governor Salman Taseer sees in the killing of the Christians a design to destabilise the PPP government in Islamabad. Efforts are on to identify the culprits so that they can be brought to book.