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A Tribune Special Where are leaders who sway people? A temporary drought, says Amulya Ganguli THE standard Marxist belief is that individuals are less important in determining the course of history than social and economic forces.
Death penalty: Law should move with march of time |
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Price of negligence
On Record
Profile
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A Tribune Special Where are leaders who sway people? A temporary drought, says Amulya Ganguli
This phenomenon is true of both communist and non-communist outfits. In the case of the first, there is little doubt that the rise of the Left movement was associated with several stalwarts, whose presence gave the doctrine an aura of respectability which impressed even the non-believers. It goes without saying that but for leaders like S.A. Dange, E.M.S. Namboodiripad, Jyoti Basu, Bhupesh Gupta, A.K.Gopalan and others, communism would not have been able to find its feet in an era when its opponents included towering figures like Jawaharlal Nehru. The fact that Kerala saw the first communist government in a democratic country in 1957 was a testimony to the popular expectations from leaders like Namboodiripad rather than any fascination for the dogma. Similarly, West Bengal would not have voted out the Congress in 1967 if someone as respected as Jyoti Basu was not the political star of the United Front. The appeal of Namboodiripad and Basu was not so much because of their avowed communism as the belief that they represented a cleaner brand of politics than what was being offered by their adversaries. It was this common perception which was responsible for the Congress’ decline. In addition, the deaths over the years of its widely respected leaders, who were known for their role as freedom fighters, made the Congress lose its high status in national life. This initial decline was followed by the continuing fall in the calibre of its leaders, which made the party lose further ground. Even today, the party is nowhere near where it was in its heyday immediately after Independence although its position is gradually improving. The point to note about these ups and downs is their link to the quality of leadership rather than to the social and economic situations. To return to the communists, it can be stated with some degree of certainty that the present downturn in their fortunes is the outcome of poor leadership, which, in turn, is related to the fall in the mettle of those at the top. It is evident that the slippages have nothing to do with a sudden eruption of doubts about the dogma, but are apparently due to an unimaginative application of its tenets. Arguably, therefore, the communists might have fared better under a more competent leadership, which did not place excessive emphasis on ideology as a guide to political action. As the communists tend to swing between dogma and tactics, in the Congress, the question of individuals being more important than impersonal socio-economic factors is clinched in favour of the former by the unique role which one family — the Nehru-Gandhis — plays in the party. There is little doubt that it began its ascent only when Sonia Gandhi was back at the helm after an interregnum when Narasimha Rao ruled the roost. Throughout the period when the NDA was in power, she always came second to Atal Behari Vajpayee in popularity ratings to suggest that the voters regarded her as the real leader. Apart from her, Vajpayee also demonstrated how crucial an individual was to a party. As long as Vajpayee was the numero uno in the BJP, the party could forge ahead. Even when the socio-religious sentiments were propelling the BJP forward during the Ram Janmabhoomi movement, the moderate Vajpayee was indispensable for ensuring that the party entered the corridors of power. If there was anyone else at the top, it would have been impossible for the BJP to cobble together an alliance. Now, because of the gaping hole in the BJP as a result of Vajpayee’s absence, the party cannot but fall behind the Congress. What such instances show is that it is the appearance of an individual with wide popular appeal which rules a party’s fate. Sometimes, of course, such a person can be the cause of both success and failure. Indira Gandhi, for instance, led the Congress to the pinnacle of glory in 1971-72 with her electoral victory and the liberation of Bangladesh. Five years later, she tasted bitter defeat. It was the same with her son. Rajiv’s popularity gave the Congress a two-thirds majority in Parliament with 415 seats in 1984 only for the party to plummet to 197 seats five years later when he became embroiled in the Bofors scandal. The link between an individual and the socio-economic-political scene assumes importance only when he reflects and articulates the mood of the times. Otherwise, no matter how turbulent the socio-economic-political forces may be, they will either peter out or pave the way for anarchic conditions. Hence, the supposedly fateful connection between the hour and the man. But for Lenin and Trotsky in 1917, the Russian revolution would not have succeeded. But for Churchill, Britain would not have had the spine to stand up to Nazi Germany. But for Gandhi and Nehru, the road to Indian independence would have been far more rocky. As these examples show, there are periods when larger-than-life figures dominate the scene. By the same token, there are also times when lesser people are present. India can be said to be passing through the second phase at present. As has been noted before, the BJP has not been able to find anyone who can step into Vajpayee’s oversized shoes. Neither L.K.Advani nor Nitin Gadkari fits the bill. While the former’s hardline image continues to pursue him, even the RSS is said to be unhappy about the performance as party president of the man from Maharashtra, who answers to the description of a “provincial”, which was used by Jaswant Singh about Rajnath Singh after his expulsion from the party. The BJP, and particularly the RSS, may have convinced themselves that the Hindu agenda made up of the temple, uniform civil code, Article 370, ban on cow slaughter et al can still boost their political fortune. But the absence of an inspirational leader is a disadvantage apart, of course, from the fact that there are differences in the saffron camp about the continuing viability of its ideas at a time when the hedonistic mall-and-multiplex culture is a feature of the urban areas. Similarly, the Left may be sure that anti-imperialism and diatribes against the “neo-liberal” economic line are bound to attract wide support because of their ideological validity. But, even if this point is conceded, there is still the absence of charismatic leaders whose arguments will convince the masses. Jyoti Basu was the last of the stalwarts, but even he was a fading giant. After him, neither Prakash Karat at the centre, nor Buddhadev Bhattacharjee in West Bengal, is recognised as someone who can galvanise the ordinary people. The Congress is slightly better placed because of the continuing magic of the dynasty. As reporters touring Uttar Pradesh before last year’s parliamentary elections discovered, the average person still hankered for the Congress of Mahatma Gandhi and Jawaharlal Nehru. The reason evidently was that, in their mind, the old Congress stood for the kind of syncretism which has been the country’s defining characteristic throughout history. The present-day Congress may not always reflect this concept of social harmony, as its occasional dalliance with the Shiv Sena and the MNS in Maharashtra and a more permanent arrangement with the DMK in Tamil Nadu, show. But, by and large, it is more accommodative of diversity than is either the BJP, with its pro-Hindu, and the Left, with its proletarian, biases. Clearly, charisma cannot be ordered. It is an accident of history. No one can predict where and when it will manifest itself. However, since India has had more than its fair share of such personalities, the present dearth may be a temporary
affair.
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Death penalty: Law should move with march of time
Of these, the first is the essential and all important one, the others merely accessory, punishment is before all other things deterrent and the chief end of law of crimes is to make the evil doer an example and a warning to all like-minded persons. Salmond goes on to say, punishment is in the second place being to deter by fear wherever possible and expedient to prevent a repetition of wrong doing by the disablement of the offender. The most effective mode of disablement of the offender is the death penalty, he opines. The perfect system of criminal justice is based on neither the reformative nor the deterrent principles exclusively but is the result of a compromise between them. In his treatise on the Common Law, Justice Oliver Wendell Holmes Jr., the late Justice of the US Supreme Court, says, “criminal law has the double object of satisfying the private party for his loss, and the king for the breach of his peace”. But in almost all the modern criminal law systems, the latter is predominant over the former. Interpreting the law on the point, the Supreme Court has held in Shiv Kumar’s case thus: “It is not merely an overall supervision which the public prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is perhaps comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the public prosecutor albeit of the fact he is engaged in the case by a private party. If the role of the public prosecutor is allowed to shrink to a mere supervisory role, the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code of Criminal Procedure a dead letter”. Imagine the juxtaposition in a case where Mr Ram Jethmalani is representing the aggrieved person and a freshly recruited assistant public prosecutor is conducting the case on behalf of the state. If we follow the law as it holds good today, an advocate of Mr Jethamalani’s eminence has to act as a junior to the newly recruited assistant public prosecutor. An amendment in the Code of Criminal Procedure has been made, where, inter-alia, the object to be achieved is stated to be thus. The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influential, rich and powerful. At present, the victims are the worst sufferers in a crime and they don’t have much role in the court proceedings. They need to be given certain rights and compensation so that there is no distortion of the criminal justice system”. However, in the amended provision, only half-hearted right has been conceded to the victim party by inserting a proviso in Section 24 of the Code of Criminal Procedure which says, “provided that the court may permit the victim to engage an advocate of his choice to coordinate with the prosecution in consultation with the Central Government or the State Government”. And yet, the only right conceded to aggrieved party is to engage a counsel, who will merely co-ordinate with the prosecution and that also, if the court permits and it has as well to happen so subject to consultation with the Centre or the state government. In effect and substance, this can hardly be termed a right being given to the aggrieved party to conduct the case in the manner he likes. If a right is to be bestowed on the aggrieved party, essentially there should be no riders on the right like permission of the court or subject to consultation with the government. The aggrieved party should be able to engage a counsel of its choice and free will, who would lead the prosecution witnesses, have a full say in the choice of these witnesses, examine them in the court, cross-examine the defence witnesses, argue the case for the prosecution and do all such acts as for concomitant to a fair trial of the case. The matter can be looked at from another angle. If the trial of a case is not conducted with the full participation of the aggrieved party and it does not end in the desired result, the retributive instinct of the bereaved party may impel it to take law into its own hands to avenge the crime and satiate its afflicted feelings. Some time back, a granthi returned to India from the UK after several years to settle scores with the killer of his kin. Within Jalandhar’s District Courts, in another case, an aggrieved party, heavily armed with lethal weapons attacked a group of undertrials who were being taken to the court room because they apprehended that even if the accused are convicted, they may not get capital punishment. Besides, a cardinal consideration in enacting laws and amending them from time to time is to ensure that they fall in the line with the changing social scenario. In other words, laws has to move with the march of time. Though the United States had abolished the death penalty earlier, after the rising graph of fatal crime, it was restored in 1978. “Prospects of a guilty verdict in the trial of the only surviving hostage taker in the 2004. Beslan School siege turned the debate in Russia’s ten-year-old moratorium on the death penalty. A Judge in Southern Russia has been asked by the prosecutors and relatives of victims to ignore the policy and impose death sentence in the attack, the worst case of terrorism in the nation’s history”, read a newspaper report in May 2009.
The writer, a former Advocate-General of Punjab, is currently President, Senior Advocates’ Association, Punjab and Haryana High Court, Chandigarh |
Price of negligence
Earlier, the courts refused to entertain petitions against the negligent doctors under the Consumer Protection Act on the very plea that a contract between a practitioner and patient was that of personal services and thus it did not bring the medical services within the sting and scope of Section 2 (1) (o) of the Consumer Protection Act. Nor had the lawmakers inserted a specific provision in the Act bringing medical services within its scope. The aggrieved patients are within their right to approach the Indian Medical Association and State Medical Associations to proceed against medical practitioners prima facie guilty of misconduct. The remedy of filing a suit for damages in a civil court is also available to them. Nonetheless, the arrangement suffers from two flaws. First, no monetary relief could be made available to a person who has undergone trauma on account of the doctors’ negligent act. And secondly, members of the Indian Medical Association and State Medical Associations usually have a soft corner for doctors. Also the aggrieved parties are reluctant to move the court as they have to pay the court fee. But the remedy under the consumer law is cheaper, faster and simpler. With increasing judicial activism, professions like engineers, architects, lawyers, etc, have virtually come under the law of torts. The basic principle underlying the brainwave is that professionals should be made to display a minimum degree of reasonable care, competence and diligence while performing their professional jobs. There are apprehensions that doctors are restrained from putting in their best. And that doctors working in highly risky fields like neuro surgery, heart surgery or trauma surgery are feeling insecure. Also the members of District Forums/ State Commissions/ National Commission are likely to deliver erroneous judgments as they lack medical knowledge. But the boot is on the other leg. It is not that the Supreme Court has put the medicos on a hot seat and demanded hyper levels of output from them. Though efficiency and precision are the hallmark of every profession, the Supreme Court has laid down a test of optimum level of ‘reasonable care and diligence’ to be necessarily followed by the medical practitioners in discharge of their professional duties. Also the consumer courts are well within their powers to seek expert opinion from celebrated medical practitioners while adjudicating cases concerning medical negligence. The Supreme Court has traversed and travelled across all that clearing the decks for suing negligent and wayward doctors under the tort of negligence. The nursing homes and private hospitals fleecing the poor people are also now under the scanner. It has ruled that the contract between a practitioner and a patient is a ‘contract for services’ and medical practitioners rendering services to the patients by way of consultation, diagnosis and treatment, both medicinal and surgical, fall within the scope of term ‘services’ as stipulated by Section 2 (1) (o) of the Consumer Protection Act. After public interest litigation (PIL), the inclusion of medical services within the scope of the consumer law is another path-breaking initiative of the Supreme Court. However, the Supreme Court has not touched government hospitals and nursing homes imparting free services — a narrow and partisan construction of law in an era where we proudly talk of accountability, transparency, work culture, e-governance and the right to information (RTI). The court has ruled that since patients are not paying any ‘consideration’ in state-run hospitals and dispensaries, the medicos offering services therein could not be sued for negligence. How could it be assumed that services rendered in the state-run hospitals are being rendered free of charge when salaries of government doctors are drawn from the taxpayers’ money? Isn’t it that a sweeping majority of ‘India Real’ going to state-run hospitals, PHCs and dispensaries has been placed on a lower pedestal as compared to affluent ones going to private hospitals and nursing homes? Does not the ruling run counter to our egalitarian and socialistic ethos? One can only hope that with the winds of change blowing steadfastly in the legal field, the hiccups would gradually go. While essential services like electricity and water supply, public distribution system and national security need to be brought within the scope of the term ‘services’, citizens must be empowered with the right to sue ‘deficient’ or ‘negligent’ public
servants.
The writer is Advocate, Jammu and Kashmir High Court, Jammu
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On Record An accomplished Urdu poet and former IAS officer, Anis Ansari was till recently the second most powerful bureaucrat in Uttar Pradesh. He shares his vision for the university with The Tribune. Excerpts: Q: What is the relevance of your new university today? A: We have set upon ourselves the task of making our classical and modern Indian languages relevant so that they attract students who can be gainfully employed. Q: How do you propose to do this? A: We have no intention to replicate what is happening in the department of languages in the universities in the state or elsewhere, barring a few exceptions. We do want to promote the learning of Urdu, Arabic and Persian but not limit the students’ chances of finding suitable job openings. That is why, the focus would be on the applied side of languages so that students can find openings as translators and interpreters. A state of the art Language Laboratory would train students on the correct pronunciation and diction. Dovetailing the courses with computer literacy can open a world of opportunities. Q: What is your ambitious project? A: To increase the spread of these languages and make them a mandatory subject for students who join the variety of professional courses that we propose to start at the university. To make the university more useful we propose to start courses in Law, Management, Journalism and Mass Communication, B.Ed, Bio-technology, Bio-informatics and Nano technology. However, to find a seat in these courses the student should have either studied one of these subjects till school leaving level or would have to opt for one of them as a compulsory subject. Over a period of time we would be able to able to make a difference. Q: How would your university be able to set standards for minority institutions across the state? A: The university would grant affiliation and assistance to minority institutions offering similar courses across the state. They would have to follow the standards prescribed for such institutions. But in certain cases we would have to make exceptions. For instance, there are norms set for the size of campus and classrooms etc. Many such institutions providing quality education operate out of small buildings as they are usually located in the congested areas of Muslim pockets. We would have to give such institutions a leeway. Q: In a place like Lucknow that was once considered a seat of Urdu language, no leading school offers it as an optional language. Are you planning to address this gap? A: At this stage we do not plan to open schools though some universities like Aligarh Muslim University and Jamia Millia Islamia, do have their own schools. But what we do have a plan for is to start online and correspondence courses for those who are willing to learn Urdu. Q: Any other plans? A: The university would have a centre for comparative modern Indian languages and literature which would cover besides Hindi and Urdu other modern Indian languages like Tamil, Malayalam, Marathi, Bangla, Punjabi, Kashmiri and Sindhi. This would give the university a pan-India perspective. Another major task is to digitise all Indian Islamic manuscripts presently scattered across various libraries and archives. We have rare manuscripts in the libraries of AMU, Reza library (Rampur), Khuda Baksh Khan Oriental Library in Patna and even in some private collections. This would prove to be a boon to
researchers.
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Profile Look at his immediate predecessor, Navin Chawla. Most the time, he remained embroiled in one controversy after another. So much so that his CEC N. Gopalaswami on January 31, 2009 recommended to the President that Chawla be removed as Election Commissioner. Gopalaswami’s recommendation was dubbed “politically motivated” and rejected and Chawla became the Chief Election Commissioner on April 20, 2009. He successfully conducted the 2009 general elections. A man of impeachable integrity and an astrologer, Gopalaswami could never pull on with Chawla but had most cordial relations with Quraishi, his second Election Commissioner. On his part, Quraishi had harmonious relations with Gopalaswami as well as with Chawla. Gopalaswami’s predecessor, T.R. Krishsnamurthy was the first CEC who belonged to the Indian Revenue Service. An upright officer, J.M. Lyngdoh was appointed CEC in 2001. He was nationally and internationally lauded for holding free and fair elections in Jammu and Kashmir in 2002 but clashed with the BJP which dissolved the Gujarat Assembly after Godhra riots and called for election amidst sectarian carnage. Manohar Singh Gill kept a tough line of his predecessor T.N. Seshan. He was the only CEC who was elected to the Rajya Sabha after he completed his term in the Election Commission and became a Union Minister. On April 6, 2008, Gill was inducted as the Union Minister for Sport and Youth Affairs. After the Congress won the 2009 election, he was re-inducted, and given Cabinet rank . T.N. Seshan, who remained CEC from 1990 to 1996, thrived amidst controversies and made history by introducing innovative electoral reforms and making the Election Commission a powerful body. He may be rightfully termed as the most visible public figure who redefined the status and visibility of a CEC. His name became synonymous with transparency, efficiency and forward vision. Significantly, he came up with the vision of an election-card for every rightful voter in India. The present incumbent, Shahbuddin Yaqoob Quraishi, had diverse assignments before he landed in the Nirvachan Sadan in June 2006. From being Secretary to the Government of India, Sports and Youth Affairs, Director-General of Doordarshan, National Aids Control Bureau and Nehru Yuvak Kendra to being Principal Secretary to the then Haryana Chief Minister Om Prakash Chautala, he performed a variety of tasks. Quraishi sees no reason why electronic voting machines should be scrapped. He is, however, open to evolving additional checks to reduce chances of their misuse. He is satisfied with the effectiveness of the model code of conduct and would not like it to be codified. He is happy with electoral reforms carried out by the government. Among the list of Quraishi’s priorities is voters’ education with which he has been closely associated for the past two years. The health of the electoral roll shows the health of democracy, he says. He will also concentrate on expediting the work on photo identity cards. “There is no other service in the country that comes to voter’s doorsteps”, he says. He is determined to improve the voter turnout in urban areas. The new CEC is concerned about “paid news”, which is detrimental to democracy and appeals to media houses to desist from this practice. Expenditure by candidates during elections is another problem which he wants to solve. He is planning to constitute an expenditure monitoring division that will be manned by the Indian Revenue Service officers. Quraishi’s main challenge will be holding the Assembly elections in Bihar this year and in Tamil Nadu, West Bengal, Kerala, Puducherry and Assam next year. In Uttar Pradesh, Goa, Uttarakhand, Punjab and Manipur, Assembly elections are due in 2012 well before he demits
office.
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THE standard Marxist belief is that individuals are less important in determining the course of history than social and economic forces. Yet, if the Indian scene is considered, it will be obvious that it has always been charismatic personalities who have played a seminal role in the country’s political life. 
DEATH penalty is a must for those found guilty of the dastardly crime of murder. Noted jurist Salmond says that the ends of criminal justice are four in number. In respect of the purposes so served by it, punishment may be distinguished as deterrent, preventive, reformative and retributive. 
OF late, there is a clamour for keeping the medical services out of the purview of the Consumer Protection Act. The notion of suing negligent doctors has been conceptualised in India by the passing of a monumental ruling by the Supreme Court in the Indian Medical Association vs V.P. Shantha & Others case. 
ANIS Ansari is the founder Vice-Chancellor of a unique institution coming up in Lucknow. The Uttar Pradesh Urdu, Arabic-Persian University has been conceived with a distinctive vision to help nurture and provide relevance to classical and modern Indian languages in an increasingly globalised world. Spread over a 30-acre campus near IIM, Lucknow, even architecturally it attempts to blend the classical with the modern. Chief Minister Mayawati laid its foundation stone on her birthday on January 15 this year. 
IF one has to ask what has been most important achievement of the new Chief Election Commissioner, the obvious answer will be “maintaining a non-controversial profile”. Indeed, unlike many of his predecessors, he has remained above controversies.