O P I N I O N S

Perspective

A Tribune Special
War on narcotic drugs
Police shouldn’t cross the legal barrier, says Virendra Kumar
In Punjab, it was reported that “A slow-to-react police will focus on drugs, modernisation” (The Tribune, December 25, 2009). With some innovative action plan, the war against drugs has been accorded a top priority for the police force.

Case for a new generation of patriots
by Robin Gupta
During the winter session of the Punjab Legislative Assembly, some Opposition members advanced towards the Chief Minister and over a point of law, came to blows. In the 14th Lok Sabha, BJP members displayed wads of currency claiming this as an instalment for winning over their party’s support. The campaign for the 15th Lok Sabha elections witnessed hurling of shoes and footwear at top leaders.

OPED

Juvenile justice
Need to make the system child-friendly
by Upneet Lalli
It is not just offenders, but victims and the community at large that needs to have faith in the criminal justice system. Good governance is not just a matter of adult debates, but is also felt by the children. A failure in this regard is a challenge that has to be met at many levels.

Profile
Soren at the helm, courtesy BJP
by Harihar Swarup
Shibu Soren has never been able to remain in office for long – whether at the Centre or in the state. His first two terms as the Chief Minister of   Jharkhand were short. In 2005, he remained in office barely for a week. He failed to obtain the confidence vote of the Assembly and had to quit. In 2008, his tenure as Chief Minister lasted a few months; he had to quit following his defeat in a by-election.

On Record
Monitoring of welfare schemes a must: Paban Kumar
by Bijay Sankar Bora
Manipuri filmmaker, Haobam Paban Kumar stands out in the culturally rich but troubled state of Manipur because of his unusual themes. Despite the troubled situation in Manipur, the 35-year-old filmmaker made a short film on the controversial Armed Forces (Special Powers) Act to highlight its impact on Manipur society.

Perspective

A Tribune Special
War on narcotic drugs
Police shouldn’t cross the legal barrier, says Virendra Kumar

In Punjab, it was reported that 
“A slow-to-react police will focus on drugs, modernisation” (The Tribune, December 25, 2009). With some innovative action plan, the war against drugs has been accorded a top priority for the police force.

The anti-narcotics cell has been given a free hand leading to a record seizure of 163 kg of heroine till October this year. Following this resolve, the Punjab Director-General of Police “exhorted the policemen to gird up their loins to rein in the culprits involved in drug trafficking”, and also sought the cooperation of society by saying that the public must partner with the police if the nefarious designs of peddlers had to be defeated (The Tribune, December 27, 2009).

The objective of ridding society of the engulfing menace of drug abuse is indeed commendable. However, giving a free hand to the police to achieve this objective does not auger well. It is full of dangers. It may instantly imperil human rights in the guise of meeting the menace, and, thereby, making the remedy worse than the disease itself.

This, in fact, was the polite admonition judicially tendered by the Constitution Bench of the Supreme Court to the Investigating Agency of the state in the case of State of Punjab v. Baldev Singh (1999):

“In every case the end result is important, but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.”

In a free democratic society, the right to justice through fair trial is perhaps the most critical component of human rights jurisprudence. A conviction resulting from an unfair trial is, therefore, contrary to the very concept of justice. This is what is envisaged by Parliament in the Narcotic Drugs and Psychotropic Substances Act of 1985.

Acutely aware of the damage caused to the social order by illicit traffic of narcotics and psychotropic substances, the legislature makes under this Act stringent provisions for their strict control and regulation. The violation of these provisions and the rules made there under entails differential punishment.

The punishment includes, for instance, rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to Rs 10,000 or both in case a person is found to possess, say, a small quantity of charas or ganja; rigorous imprisonment for a term which may extend to 10 years and fine extending to Rs 1 lakh in case the quantity of the said substance is more than a small quantity, but less than commercial quantity; and if a person is caught possessing the same substance of commercial quantity, then imposition of punishment shall be of rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and shall also be liable to a fine which shall not be less than Rs 1 lakh but which may extend to Rs 2 lakh.

The illicit possession of narcotics is to be located only through the designated officer superior in rank, who is specially empowered to detain and search, and, if he thinks proper, to arrest any person whom he has reason to believe have committed an offence, with or without warrant, depending upon the situational context, by following the prescribed procedure as laid down in Chapter V of the Act of 1985.

The conditions under which search of suspected persons shall be conducted have been specifically provided in the provisions of Section 50 of the said Act. Any defiance of these conditions may result in the violation of human rights of the person intended to be searched, and, thereby sullying the entire system of administration of justice. The right to fair trial is, unarguably, the foundation of protection of all human rights.

Most recently, a two-judge bench of the Supreme Court in Sarju v. State of Uttar Pradesh (2009), while noticing the transgression of procedural conditions laid down in Section 50 of the said Act, has reiterated:

“An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial would render the trial unfair.”

In our view, it needs to be emphasised that the conditions laid down in Section 50 are not simply the matters of procedure for regulating the conduct of proceedings under the Act. Jurisprudentially, since those conditions have been incorporated into the very provisions of the Act itself, they enjoy the status of substantive law, yielding human rights.

The human rights envisaged by the procedural conditions in Section 50 of the Act, as expounded by the apex court, include: (a) a person before he is searched for the recovery of illicit narcotics by the duly authorised officer has the right to be informed by the latter that he may be searched only in the presence of the Gazetted Officer or Magistrate;

(b) if the person to be searched so requires after being duly informed, he has the right to be taken without unnecessary delay to the nearest Gazetted Officer of any of the identified departments or to the nearest Magistrate;

(c) he has the right to be discharged forthwith if the Gazetted Officer or the Magistrate before whom he is brought sees no reasonable ground for search;

(d) a female has the right to be searched only by a female; and

(e) the right of a person to be searched in the presence of a Gazetted Officer or a Magistrate can be passed over if the duly authorised officer has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of said person parting with possession of any narcotic drug or psychotropic substance, then he may proceed to search the person under the relevant provisions of the Code of Criminal Procedure.

However, even in this emergent situation, the person so searched is not without protection against the whims of the authorised person: after the search is conducted the officer is required to record the reasons for such belief which necessitated such search, and within 72 hours send a copy thereof to his immediate official superior.

Any failure to inform the person to be searched of his right as emanating from the provisions of Section 50 of the Act may render the recovery of the contraband suspect and the conviction and sentence to the accused bad and unsustainable in law.

This is what the apex court has reminded the state recently in the Sarju case. Lest the war against the abuse of narcotics prove futile, the state would do well to bear in mind the singular directive of the Supreme Court: ”the investigating agency must follow the procedure scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that laxity on the part of the investigating agency is curbed.”

The procedural safeguards, inhering human rights, are indeed the integral part of the core objective to be achieved through the enactment of the Narcotic Drugs and Psychotropic Substances Act.

The writer is Director (Academics), Chandigarh Judicial Academy, Chandigarh

Case for a new generation of patriots
by Robin Gupta

During the winter session of the Punjab Legislative Assembly, some Opposition members advanced towards the Chief Minister and over a point of law, came to blows. In the 14th Lok Sabha, BJP members displayed wads of currency claiming this as an instalment for winning over their party’s support. The campaign for the 15th Lok Sabha elections witnessed hurling of shoes and footwear at top leaders.

After 61 years, the Indian state reveals a society precariously balanced on a precipice in sharp contrast to its splendid and ancient civilisation. The vistas of hope promised and the commitments made by the Constitution notwithstanding, good governance has eluded the Indian people in every sphere of life.

Strangely, neither during the electioneering nor in the laudable slogans is there a specific mention of immediate fundamental concerns such as food, housing, drinking water, health care, primary education, employment, rural electrification, increase in agricultural production, area-specific industrialisation and saving the environment from degradation.

Poverty in India is widespread with the nation home to a third of the world’s poor. According to the World Bank survey of 2005, 42 per cent of India falls below the international poverty line in 2004-05.

As one enters New Delhi’s Central Secretariat through Gate No 4, one often misses the British Raj maxim incised in golden letters: ‘Liberty will not descend upon a people; a people must raise themselves up to liberty…’ These were ominous words and it is time to diagnose the cancerous malaise that will not allow India to progress before comprehensive effective and timely reconstruction is embarked upon.

The vast Indian population have been likened to a directionless herd, innocent about their rights or duties under the law and therefore, frequently we are privy to respectable citizens; teachers, doctors, professors, media men, lawyers and law officers being subjected to the supercilious markedly cruel behaviour of an indisciplined, politicised and disorderly police force somewhat akin to the levies of the Ottoman Empire.

In Punjab and Haryana, at least six Directors-General of Police have served jail terms or have been arrested for corruption and moral turpitude while most recently a police officer was held for murder. It is generally believed that India is governed by a corrupt and largely insensitive civilian administration. The civil servants have fallen victim to the post-independent political dispensation where they are no longer masters since their power and postings are determined by their pliability and loyalty. Merit or expertise very rarely has anything to do with the civil servant’s career graph.

Criminal charges are pending against 153 and 93 MPs respectively of the 15th and 14th Lok Sabha. We must look at the electoral process with care. Of the important pillars of democracy, an independent judiciary, a free press and free and fair elections are of cardinal importance. We need to amend the Representation of the People Act, 1951 to prevent candidates with a criminal record from contesting elections.

It is also imperative to root out money power which can destroy democracy. Large contributions from corporate sectors tend to corrupt political life. Companies in the private sector are permitted to donate up to 5 per cent of their average profit for the previous three years. In fact, it is ‘notes for votes’ that is the mother of all corruption. The voter is ignorant that for every Rs 10 given to him by a candidate for votes, he ends up paying five to ten times more as bribe to avail himself of basic services due to him from the government. Such donations need to be totally banned and it must be ensured that no link is possible between the donor and a political party.

Union Home Minister P. Chidambaram said recently that India needs a new government of patriots. Where have they all gone? — Netaji Subhash Chandra Bose, C.R. Das, Rabindranath Tagore, Gopal Krishna Gokhale, Bhagat Singh, Mahatma Gandhi, Jawaharlal Nehru, Maulana Abul Kalam Azad, Khan Abdul Ghaffar Khan, Sardar Vallabhbhai Patel, Lala Lajpat Rai, Udham Singh and the endless galaxy of men and women who laid down their lives to secure India’s freedom. In fact, the period between 1885 and 1947 has been termed by some historians as the age of idealistic innocence.

The 1984 anti-Sikh riots, the demolition of the Babri Masjid in 1992, the Godhra riots in 2002, the dark years of militancy in Punjab, the Naxalite movement, the terrorists attack on India’s Parliament, the reprehensible attack on Christian churches, missionaries and nuns, and the Mumbai terrorist attack on November 26, 2008 indicate a threatening state of lawlessness in the country.

In this ancient land renowned for its saints and Bhakti singers, one is particularly pained by the power of hate which has so openly surfaced and become the emerging principle of our times. Recently an upcoming leader expressed a view to get the members of a minority community forcibly sterilised. This is a resonating echo of Will Crooks hatred for “human vermin” or Hitler’s avowed belief in eugenics to physically weed out an inferior race.

Had this leader made a speech based on love and stated “embrace them in your arms” he would have been left unnoticed. Likewise, echoes of ferocious slogans by a rising sun in Punjab claim that the rival political party would be decimated and pulverised. It could be said that these are ferocious mongoloid war cries tangential to democracy.

Therefore, this writer recalls with a heavy heart the words of India’s great philosopher Swami Vivekananda: “Civilisations have arisen in other arts of the world…Wonderful ideas have been carried forward from one race to another…But mark you; it has been always with the deluge of blood. This, many nations have taught but India, for thousands of years peacefully existed when even Greece did not exist…Even earlier, then history has no record…ideas after ideas have marched out from her, but every word has been spoken with a blessing behind it and peace before it. We, all nations…have ever been a conquering race, and that blessing is on our head, and therefore we live…!”

Jawaharlal Nehru wrote about himself in an anonymous article with respect to his 17 years as Prime Minister: “He must be checked. We want no Ceasers”. Thus, during his tenure, democratic values became so entrenched that when Indira Gandhi imposed Emergency for 21 months during 1975-77, she felt compelled to hold elections and to return freedom to the Indian people.

This writer has attempted a cursory survey of the tragedy of India today as he understands it. For he fears that democracy in India needs no external foe. If it withers away, this will be because of the sustained apathy and unmindful insensitivity to its essential prerequisites.

The writer is a former IAS officer of Punjab cadre

OPED

Juvenile justice
Need to make the system child-friendly
by Upneet Lalli

It is not just offenders, but victims and the community at large that needs to have faith in the criminal justice system. Good governance is not just a matter of adult debates, but is also felt by the children. A failure in this regard is a challenge that has to be met at many levels.

To make sense out of events which even adults find hard to fathom and explain requires special assistance for the children. It is indeed most unfortunate that it takes a horrendous incident highlighted by the media to shock organisations, and system into action. How many more child victims we need for the system to respond to their needs?

Where is the protection for the little girls who are abducted, molested, raped or murdered just feet from their home? With over one-third of its population below 18 years, at approximately 440 million, not only does India have the world’s largest number of children but also the most vulnerable child population. Society today is demanding that crimes against children need exemplary punishment, but it’s not just the severity but certainty that is crucial.

While crimes against children are rising every year, in 2007 there were 20410 such cases as against 18967 in 2006.and 5045 cases were of child rape. There is no special classification of crimes against children. So murder, kidnapping, molestation of children are viewed through the same lens as crimes against adults. The age of the victim is sometimes forgotten to benefit the offender. Today it is Ruchika, and before that Nithari killing, children have indeed not been given a fair deal by the justice system. The laws are neither child centered, nor child friendly, nor do they always resonate with the UN Convention on Rights of Child which India ratified in 1992.

The issue of child rights in India is still caught between legal and policy commitments to children and ground realities. Ruchika’s case challenges the complacency that ails the justice system. The people who are instrumentalities of the law lack the very understanding of the nature of child abuse, and its impact on the child victims.

Who can deny the fact that children are more vulnerable than ever before? It is recognised that silence breeds abuse and exploitation of children. However, when you see the perpetrators of harm getting away, it reinforces a view that it may be better to keep quiet. ”Who can fight the system?” Thus the social costs of failure of our legal system is not only in terms of the well being of abused and neglected children, but the long-term effects of such failure on the community. Surely, we do not want vigilante justice in our country!

Originally traumatised by the perpetrator the child is again victimised by the legal system supposedly designed to protect them. The perpetrators can easily intimidate children, especially if they are in positions of authority. The Child Protection Units set up by the police departments have still a long way to go in terms of providing full protection and counseling services. Indeed, this writer remembers one such unit in Mohali being set up with support of British Council, and inaugurated with much fanfare, and then the unit almost becoming non-functional after some time, because of apathy, insensitivity, and lack of trained persons.

The objective of such a unit was that instead of any child going to police station to report any incidence of abuse, the child would be sent to the centre, and his/her statement would be video recorded, by experts specially trained to communicate with children, and offered a multi-agency assistance. The child has a right to protection and also medical aid, counseling help, legal aid as also any other assistance required for full development.

We need to have a whole legal system that specialises in children and the law, with sensitive persons in the judiciary, in the police force and those manning children’s services, i.e. juvenile homes, children’s homes. The legal structure of the courts should not intimidate children. While the Juvenile Justice Act provides for separate system for those in conflict with law and mentions about children in need of care and protection, it does not clearly lay down protocols or procedures for dealing with children who are victims of criminal acts such as rape, abduction, molestation, violence or trafficking.

For example, while in the case of children who are in need of care and protection under the Act, the Child Welfare Committee can decide a place of safety, aid in prosecution and further the cause of rehabilitation of such children, such procedures are not as clearly stated for child victims of crime. The child victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, for the harm they have suffered. Time-bound trials are essential in all cases where they are victimised. Simplification of procedures to lodge complaints, e.g. on police website or though telephone should be made available for all citizens.

Child victims should have access to assistance that meets their needs such as advocacy, protection, economic assistance, counseling, health and social services, social reintegration and physical and psychological recovery services.

Special assistance should be given to those children who are disabled or ill. Children’s voices need to be heard in courts. Oral and written victim impact statements should be considered before sentencing. To ensure less trauma, children should be produced either through CCTVs or video-recording of their evidence done by child advocacy experts.

There is a need to establish and strengthen judicial and administrative mechanisms to help child victims obtain redress through formal or informal procedures that are prompt, fair and accessible. However, laws alone are not enough. Everything has to move at a pace together. Otherwise if you improve one arm that does not solve the problem and even as much is and has been said, it needs to be repeated. It’s time rhetoric was replaced by real action.

The writer is Deputy Director, Institute of Correctional Administration, Ministry of Home Affairs, Chandigarh

Profile
Soren at the helm, courtesy BJP
by Harihar Swarup

Shibu Soren has never been able to remain in office for long – whether at the Centre or in the state. His first two terms as the Chief Minister of   Jharkhand were short. In 2005, he remained in office barely for a week. He failed to obtain the confidence vote of the Assembly and had to quit. In 2008, his tenure as Chief Minister lasted a few months; he had to quit following his defeat in a by-election.

How long will he last as he begins his third term with the BJP’s support? The Supreme Court is slated to hear in March 2010 a petition relating to his involvement in his personal secretary’s murder case. An adverse verdict may again cut short his third tenure in the chief ministerial office.

Soren could not last long as Union Minister because of his shady deals and dubious past. He had to quit as Union Coal Minister in the Manmohan Singh government in 2004 following an arrest warrant against him in the 30-year-old Chirudih case. He got bail after a month in the judicial custody. He was re-inducted in the Cabinet, apparently, as part of a deal for the Congress-JMM alliance before the Jharkhand Assembly elections in February-March 2005.

In 1993, along with his five party colleagues, Soren got embroiled in the infamous “JMM bribery scandal”. He was given Rs 30 lakh to ensure that the Narasimha Rao Government survived the confidence vote. How did Soren and his colleagues were caught? Simple tribals, as they were, Soren and his company thought their money would be safe if they deposited it with a nationalised bank. Soren deposited the money in the Punjab National Bank. He also invested in real estate and tactlessly brought the property in his own name.

Soren began his career by campaigning against moneylenders. He was venerated by the Santhal Pargana tribals. His initial days were spent in jungles, fighting the cause of poor people. With the passage of time, he became a politician and took over charge of the JMM from Nirmal Mahto, the party's founder. By early nineties, he carved out a strong base among tribal and backward people, particularly the Mahto community.

The rebellion in him was ignited when at the instigation of a money lender, his father, Shobaran Soren, was murdered. A young tribal lad then, Soren could not bear the loss. He vowed to get his region freed of the “tyrants”. Initially, his slogan was Jharkhand ko soshan se mukti doo (free Jharkhand from exploiters). Subsequently, the movement gave rise to a political party – Jharkhand Mukti Morcha (JMM) – and Soren became the torchbearer of the struggle.

The JMM supremo was the fulcrum of the movement for the separate tribal homeland for years. The demand for the separate statehood was raised by an Oxford educated Munda (a tribal) as far back as 1939 and since then it has fired the imagination of the people of the Jharkhand region. A political party named after the region – Jharkhand Party – was formed in 1950 with the objective of attaining the homeland for Adivasis, won 21 seats in the 1952 Bihar Assembly elections, repeated its performance in 1957 but   withered away with its support base dwindling during the 1962 poll.

The sixties saw the exploitation of tribals touching a new high with moneylenders, landgrabbers, landlords, businessmen and forest mafia getting foothold in the coal and mica belts and bringing with them all the vices. They plundered the forests, seized the land of adivasis and desecrated the rivers. The tribal people called them contemptuously as “outsiders”.

Shibu Soren organised mining workers, Dalits, backward classes under one banner and posed a challenge to the mafia. He came to be known as the “jungle leader” and “tribal crusader”. With the murder of Soren's father, the struggle gathered further momentum. Since then, the son had only a one-point mission – to get a separate Jharkhand state. He finally succeeded.

The mafia exploited the Adivasis’ weakness for liquor and their abject poverty. Soren organised with the help of tribal youth the Matka foro (break the earthen liquor jar) movement. The mafia did not take kindly to Soren’s rising clout and used all its muscle and money power to break the movement. They succeeded in splitting the JMM many times but Shibu kept the movement alive and his party revived after each split.

On Record
Monitoring of welfare schemes a must: Paban Kumar
by Bijay Sankar Bora

Paban Kumar

Manipuri filmmaker, Haobam Paban Kumar stands out in the culturally rich but troubled state of Manipur because of his unusual themes. Despite the troubled situation in Manipur, the 35-year-old filmmaker made a short film on the controversial Armed Forces (Special Powers) Act to highlight its impact on Manipur society.

The films earned him many national and international awards. A postgraduate in direction and script writing from Kolkata’s Satyajit Ray Film and Television Institute (SRFTI), Paban Kumar speaks to The Tribune in Imphal.

Excerpts:

Q: What has held you back in Manipur after passing out of the prestigious SRFTI?

A: The sense of belonging to my troubled but resourceful state and the urge to highlight its problems, the plight of people living in a prolonged conflict situation have kept me close to my people. The 77-minute long film ‘AFSPA 1858’ is an example of my work on the situation in Manipur before an outside audience. After the film was screened in the Mumbai International Film Festival (MIFF) 2006, many people congratulated me for letting them know about the harsh reality in Manipur.

I also try my best to focus on many positive aspects of Manipur. I have done a film on the historic Kangla Fort in Imphal for IGNOU’s Electronic Media Production Centre. The film was adjudged as the best educational programme under the 14th UGC education video competition.

Q: What are the ills confronting Manipur in particular and the North-East in general?

A: The huge communication gap between the people of the region and the rest of the country. The gap needs to be bridged fast. The situation in Manipur is very complicated. Unfortunately, it is the most confused state in many spheres with a generation that is not sure about itself.

While the communication gap must be narrowed down, we the people from the North-East need to be more assertive in demonstrating our skills, talents and resources before the world so that we are understood better.

Q: Can you think of any solution?

A: It would be difficult for me to pinpoint the solution. But I am sure, it is just a passing phase and better times are ahead. Life can’t go on like this. There is always light at the end of the tunnel. If no one does anything to bail out Manipur from the present trouble, the time itself will save it. Ours is a group of culturally rich people with a long history.

Q: Why are filmmakers not doing enough to focus on Manipur’s woes?

A: I find it strange but the entire North-East has failed in this respect. Apparently, most filmmakers are scared to touch these aspects out of fear of getting caught in the conflict between the state and the anti-state actors. Of course, there is need for proper training and awareness to deal with such sensitive issues in a film.

Significantly, digital film revolution has swept Manipur as in many other states. Unfortunately, while first generation filmmakers from states like Kerala and West Bengal are making best use of low-cost digital technology to make meaningful films that touch upon various aspects of life in a plural society, many new filmmakers in Manipur are apparently exploiting the technology to make commercial short films only. No doubt, commercial films are required as films are also a medium of entertainment. But we need to highlight core issues plaguing Manipur in films more often than not so that people from the rest of the country understand the state better and, in the process, help evolve solutions to the present fluid situation.

Q: Aren’t you too scared to deal with Manipur’s sensitive issues in your films?

A: Of course, I also feel apprehensive sometimes. I am also a human being and the prevailing situation does affect my life and works. While selecting a theme for a film, I get scared as I don’t know how the state and other elements would view and ract to it.

Q: Is the Government of India doing enough for the welfare and restoration of normalcy in Manipur?

A: The Centre’s developmental policies and programmes sound excellent in paper. States receive money for implementing them. But everything apparently goes wrong at the level of implementation, especially in Manipur. There should be strict monitoring of these programmes so that development funds benefit the people at the grassroots. If people are happy and can make a living, most problems will get resolved.