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Culpability of business
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Doctors under censure Need to curb unethical medical practices THE Medical Council of India (MCI) has done well to serve show-cause notices to 61 executive committee members of the Indian Medical Association. The action comes on the heels of the recommendation of the MCI to strike off the names of the president and secretary-general of the IMA from the medical register for six months for professional misconduct.
‘Great game’ in Indian Ocean
Life has come full circle for IMA
Death or life Term
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Culpability of business
IN all the outrage over the 2G spectrum allocation scam, while the spotlight is on the role of politicians and bureaucrats, the companies that were the biggest beneficiaries in the purported loot of the public exchequer are tending to get away lightly. It is they who fuelled the subversion of the system and it would be but fair that they be unmasked and punished as much as their comrade-in-arms, the politicians and the bureaucrats. The bribe-giver and bribe-taker are equally culpable. Significantly, out of the 122 new licences that were given out for the use of 2G spectrum, 85 were won by companies that did not meet the eligibility criteria. Some companies which did not have any telecom infrastructure, network, subscribers, knowledge or proven track record in the telecom business also got 2G licences. The likes of Swan and Unitech that got licences to operate in many circles sold their stake to foreign companies in a short time at astronomical profits. The report of the Comptroller and Auditor-General of India clearly says that many of the companies were privy to insider information and were given undue favours to win the licences. According to the CAG, 12 companies lied about their paid-up capital. Bidders must have a minimum of Rs 3-10 crore as paid up equity capital but most of the companies which won the licences did not meet the mark. As per the laws, a company cannot have stakes in more than one licensee company for the same area. This rule was ignored for Swan Telecom, where Reliance held over 10 per cent equity stake at the time of the licence application. If there is a serious effort to make amends for the gross transgressions as there should be, the first step should be to cancel the licences of all those companies that acquired it by illegal means. Besides, as the Telecom Regulatory Authority of India has pointed out, the licences of those companies who did not fulfil the rollout obligations should also be annulled. Fresh auction should be held to raise the revenue to recoup the losses. The TRAI has recommended cancellation of 20 licences of Loop Telecom, 15 of Etisalat DB, 11 of Sistema, 10 licences of Videocon, eight of Uninor, and five licences of Aircel. This recommendation must be dealt with on priority and examined with the thoroughness that it deserves. Wherever legitimate and possible, the money must be restored to the public exchequer.
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It’s ‘scientific journalism’
THE arrest of WikiLeaks’ Editor-in-Chief Julian Assange in London on charges of “rape, sexual molestation and unlawful coercion” has come at a time when he has shaken the secret world of US diplomacy by its very foundations. It is quite understandable that pressure from the super power has led to the launching of the legal proceedings against him by the authorities in Sweden, where he is alleged to have committed the social crime. This vindictive action against the brave 39-year-old Australian cannot reduce the importance of what he has done. He has given a new direction to journalism. There is need for a debate to accept or reject his style of bringing information to the public. The US, which rarely misses an opportunity to lecture the world on freedom of speech and expression, should accept the new reality instead of trying to silence the whistleblower website’s founder. In Assange’s own words, this is “scientific journalism”. The aim is not only to inform people about the happenings around the world, but also to prove that the news they are getting is true. “Scientific journalism”, as he explained in an article in The Australian before his arrest, “allows you to read a news story, then to click online to see the original document it is based on. That way you can judge for yourself: Is the story true?” That is why the US cannot deny what the media has reported on the basis of the WikiLeaks expose on the wars in Afghanistan and Iraq, besides other things. The Australian genius has no dearth of supporters despite the world’s most powerful nation virtually declaring him another Osama bin Laden. The drive against the website has led to a “data war” with a large number of WikiLeaks admirers attacking the companies which have sided with the US to punish Assange financially and otherwise. The US and its camp followers need to realise that if those who dare to tell the truth about closed-door happenings in China and other such countries can be conferred a Nobel Prize, Assange, too, deserves to be treated in the same manner. No one today can hide the truth on any pretext, not even the mighty US. |
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Doctors under censure
THE Medical Council of India (MCI) has done well to serve show-cause notices to 61 executive committee members of the Indian Medical Association. The action comes on the heels of the recommendation of the MCI to strike off the names of the president and secretary-general of the IMA from the medical register for six months for professional misconduct. In 2008, the IMA had agreed to endorse products for commercial consideration, something that the MCI rightly found in direct violation of the Indian Medical Council (Professional Misconduct, Etiquettes and Ethics) Regulations. Indeed, action against the doctors who violate medical ethics is not only warranted but also the need of the hour. For quite some time now, medical ethics in India has been found wanting in many instances. More and more doctors are ignoring the medical ethics code which professes that the prime objective of the medical profession is to render service to humanity. Compared to the medical expose that has rocked the country in recent years and brought bad name to the medical fraternity, the misdemeanour of IMA doctors endorsing products looks relatively minor. However, as the MCI has pertinently pointed out, “Why should they not be censured for unethical behaviour?” Anything that besmirches the reputation of the medical fraternity cannot be ignored, and defaulters have to be taken to task. Doctors endorsing products is not the same thing as cricketers and film stars doing so. For doctors have high credibility and their endorsement of particular products, especially food products, is likely to send a wrong message to the gullible masses. It is to be hoped that the MCI’s tough stance against erring doctors will not only encourage ethical medical practices in the country but also impel the medical community to do some introspection. Doctors must realise that medical profession is not like any other profession, and profit motive cannot be its guiding principle. |
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Reading maketh a full man; conference a ready man; and writing an exact man.
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‘Great game’ in Indian Ocean
Indian
External Affairs Minister S M Krishna was in Colombo recently on a four-day official visit to boost bilateral relations even as the Chinese footprint in Sri Lanka continues to grow by the day. The highest-ranking Indian leader to tour the country after the war with the Liberation Tigers of Tamil Eelam (LTTE) ended almost 18 months ago, Mr. Krishna continued with New Delhi’s policy of pressing for greater devolution on the island where thousands of Tamils are still struggling to be repatriated to their homes. Along with his Sri Lankan counterpart, Mr Krishna also be presided over the joint commission in Colombo to review the progress over the last five years since its last meeting in 2005. The commission reviews the bilateral commitments made by the two states and there was much that needed to be reviewed and altered. Apart from bilateral talks with the Sri Lankan President Mr Mahinda Rajapaksa, and other members of his government, Mr Krishna declared open two Indian consulates in the island’s north and south. It is most certainly high time that New Delhi took Colombo seriously and Mr Krishna’s visit should have happened much sooner. The Sri Lankan President is at the height of his power after having defeated the LTTE and winning an overwhelming mandate for himself and his party. Yet his government’s human rights record is under critical scrutiny in the West, and clearly a visit to India would have helped him in underlining New Delhi’s backing for his government to the world. But beyond that symbolic value, Sri Lanka is rapidly slipping out of India’s orbit. India failed to exert its leverage over the humanitarian troubles that the Tamils trapped in the fighting were facing. New Delhi’s attempts to end the war and avert humanitarian tragedy in North-East Sri Lanka proved utterly futile. Colombo’s centrality between Aden and Singapore makes it extremely significant strategically for Indian power projection possibilities. After initially following India’s lead in international affairs, even demanding that the British leave from their naval base at Trincomalee air base and that at Katunayake in 1957, Colombo gradually gravitated towards a more independent foreign policy posture. And it was India’s enthusiasm for China that made Sri Lanka take China seriously but after the Chinese victory in its 1962 war with India, Colombo started courting Beijing much more seriously. And today China has displaced Japan as Sri Lanka’s major donor with an annual aid package of $1 billion. Bilateral trade between China and Sri Lanka has doubled over the last five years with China emerging as the largest trading partner of the island nation. China is now supplying more than half of all the construction and development loans Sri Lanka is receiving. Chinese investment in the development of infrastructure and oil exploration projects in Sri Lanka has also gathered momentum. China is providing interest-free loans and preferential loans at subsidised rates to Sri Lanka for the development of infrastructure. It is the first foreign country to have an exclusive economic zone in Sri Lanka. China is involved in a range of infrastructure development projects in Sri Lanka - constructing power plants, modernising Sri Lankan railways, providing financial and technical assistance in the launching of communication satellites. China is financing more than 85 per cent of the Hambantota Development Zone to be completed over the next decade. This will include an international container port, a bunkering system, an oil refinery and an international airport and other facilities. The port in Hambantota, deeper than the one at Colombo, is to be used as a refuelling and docking station for its navy. Though the two sides claim that this is merely a commercial venture, its future utility as a strategic asset by China remains a real possibility to India’s consternation. For China, Hambantota will not only be an important transit for general cargo and oil but a presence in Hambantota also enhances China’s monitoring and intelligence gathering capabilities vis-à-vis India. India has expressed its displeasure about growing Chinese involvement in Sri Lanka on a number of occasions. In 2007, India’s then National Security Adviser openly criticised Sri Lanka for attempting to purchase Chinese-built radar system on the grounds that it would “overreach” into the Indian air space. Yet Sri Lanka has emerged stronger and more stable after the military success in the Eelam war and the two elections at the national level. To counter Chinese influence, India has been forced to step up its diplomatic offensive and offer Colombo reconstruction aid. With the LTTE now out of the picture, the Indian government is hoping that it will have greater strategic space to manage bilateral ties. However, where New Delhi will have to continue to balance its domestic sensitivities and strategic interests, Beijing faces no such constraint in developing even stronger ties with Colombo. As a consequence, India is struggling to make itself more relevant to Sri Lanka than China. Colombo matters because the Indian Ocean matters. The “great game” of this century will be played on the waters of the Indian Ocean. Though India’s location gives it great operational advantages in the Indian Ocean, it is by no means certain that New Delhi is in a position to hold on to its geographic advantages. China is rapidly catching up and its ties with Sri Lanka are aimed at expanding its profile in this crucial part of the world. Indian policy makers need to shape up soon or else they are in danger of losing this “game”.
The writer teaches at King’s College, London.
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Life has come full circle for IMA
Dehra Dun’s famed Indian Military Academy will now depute its instructors to train gentlemen cadets at the Royal Indian Military Academy at Sandhurst (Surrey) in England. This new development comes both as a surprise and irony inasmuch as our erstwhile British rulers had always considered their Sandhurst Academy as the best in the world, and did everything in their power to discourage introduction or setting up of a training academy for Indian officers. The 1857 uprising by “native” sepoys against the despotic bosses of the East India Company compelled the British government to take over the direct administration of the territories then under the Company. It thoroughly restructured the British army in India following the recommendations of the Peel Commission. Thus, the crème de la crème of the British army officers were deputed to India to command British Indian Army that mostly comprised the natives; Indian officers were simply “No No”. This pattern continued for a long time and the army of Indian soldiers and commanded by British officers admirably served the purpose and won many a battle against local Rajas and Nawabs. This British Indian Army also performed heroically in World War I. However, in the beginning of the 20th century, a strident demand started emerging about the induction of Indian officers in the British Indian Army. This demand further grew, and then the Indian nationalist leaders increasingly realized the utmost necessity of handing over the command of the British Indian Army to Indian officers. The Indian Military Academy, which was initially nicknamed “Indian Sandhurst”, was set up on October 1, 1932. The first commandant was Brig. LP Collins. Forty gentlemen cadets, called the “Pioneers” joined the first course. Some prominent names among them were SHFJ (Sam) Manekshaw (India), Smith Dun (Burma) and Mohd Musa (Pakistan); all of them later became the army chiefs in their respective countries. However, the formal inauguration of the academy took place a little later on December 10, 1932, and Field Marshal Sir Philip Chetwode, Baronet, the then Commander-in-Chief in India, performed this historic and auspicious ceremony. The first five commandants of the IMA were the British and so were most of the officer-instructors. It was only in November 1947 that Maj-Gen. Mahadeo Singh was appointed as the first Indian commandant. A road near Ballupur has been named after General Mahadeo Singh. Reverting to the latest decision about exchanging Indian and British instructors should be considered a feather in the cap of the Indian Military Academy, and a testimony to its excellent training standards and traditions. This bilateral arrangement should bring about a degree of bonhomie between the two academies. It will obviously be for the first time that the Royal Military Academy at Sandhurst will have Indian instructors in the rank of captain. Thus, life has come full circle for IMA. It will also be a new experience for the Indian Military Academy which will now have British instructors for the first time since
Independence.
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Death or life Term
l
Death penalty is irreversible. It can be — and has been — inflicted upon innocent people. But there is no convincing evidence that death penalty serves any penalogical purpose. l
Its deterrent effect remains unproven. l
Retribution in the sense of vengeance is outmoded as acceptable end of punishment. l
Imposition of death penalty nullifies the purpose of reformation and rehabilitation of the criminal, which is the primary purpose of punishment. l
Execution by whatever means is a cruel inhuman and degrading punishment. The Retentionists argue that a murderer who takes the life of another forfeits his right to his own life. They emphasise the deterrent and retributive aspect of death sentence by arguing that the civilised society must express its revulsion against heinous crimes like murder. True, there have been instances of those persons who, after conviction and execution of murder, were discovered to be innocent. But this, according to the Retentionists, is not a reason for abolition of death penalty but an argument for reform of judicial system and sentencing procedure. The deterrent value of death penalty has been judicially recognised in a number of cases. In Paras Ram (1973), where a superstitious father had sacrificed his four-year-old innocent son, the Supreme Court while upholding the death sentence inter alia observed that when the crime is of primitive horror and its manifestation is in the form of inhuman and criminal violence, deterrence through court sentence must perforce operate through culprit coming before the court. This view has been reiterated in a number of cases. The Law Commission of India, it its 35th Report, has vouched for the deterrent effect of capital punishment. However, whether or not death penalty acts as a deterrent may not be statistically proved either way because statistics as to how many potentially murderers were deterred from committing murder but for existence of capital punishment for murder are difficult, if not altogether impossible, to conclude. The Indian Penal Code (1860) prescribes death as an alternative punishment for the seven offences, murder (Section 302) being one of them. Section 302 says: “Whoever commits murder shall be punished with death or imprisonment for life and also be liable to fine.” The sentencing procedure is prescribed in Section 354 (3) of the Code of Criminal Procedure (1973) which reads “when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgement shall state the reason for the sentence awarded and in the case of sentence of death the special reasons for such sentence.” The constitutional validity of these two provisions of law was challenged before the Supreme Court in Bachan Singh (1980) to be tested on the anvil of Articles 14, 19 and 21 of the Constitution. Avoiding the expression of opinion as to which of two antithetical views held by the Abolitionists and Retentinists is correct, the Supreme Court repelled the challenge by inter alia observing: It is sufficient to say that the very fact that the persons of reason, learning and wisdom are rationally and deeply divided in their opinion on this issue is a ground among the others for rejecting the petitioner’s arguments that retention of death penalty in the impugned provisions is totally devoid of reason and purpose. A forceful plea was made before the Supreme Court for laying out standards or norms restricting the area of imposition of death penalty to a narrow category of murders. The plea was rejected by the court holding that first, there is little agreement among penologist and jurists on what information about the crime and criminal is relevant and what is not relevant for fixing the dose of punishment. Secondly, the criminal cases do not fall into the same behavioral pattern. Thirdly, standardisation of sentencing procedure which leaves little room for judicial discretion to take account of variation in culpability ceases to be judicial. And fourthly, standardisation of sentencing discretion is a policy matter which belongs to the sphere of legislation. The court ruled that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction of the court in accordance with the sentencing policy writ large in Section 354 (3). It cautioned that judges should never be blood thirsty — hanging of the murderer has never been too good for them. Significantly, in Bachan Singh (1980), though the court had avoided standardising any categories of murder in which the death sentence should be awarded, in Machhi Singh (1983), the court did formulate certain categories of murder in which the death sentence was to be awarded. The standardisation of the categories of murder in which death sentence must be awarded again came up for consideration in Swamy Shradananda (2008). The court noted with agony the deficiency of the criminal justice system and the lack of consistency in the sentencing process given by the Supreme Court. It noted that Bachan Singh laid down the principle of “rarest of rare cases”. Machhi Singh crystallised the principles into five definite categories of cases of murder and in doing so considerably enlarged the scope for death penalty. However, the court noted with dismay that the reality is that in later decisions neither the “rarest of the rare cases” principle nor Machhi Singh were followed universally or consistently. The lack of consistency in sentencing process has even been judicially noticed. In Aloke Nath Dutta (2006), Judge Sinha gives some very good instances from a number of Supreme Court decisions in which on similar facts the court took contrary views on giving death penalty to the convict. This leaves the common man confused and bewildered. But mathematical consistency in sentencing is not possible to achieve because no two murders are identical. Allowance has also to be made for the background, beliefs, social philosophy and value system of the presiding judge. Within these limitations, the Supreme Court has been able to achieve a reasonable degree of consistency. Mention may also be made of the hiatus between the public expectations and the court verdicts. To cite two recent examples, Jessica Lall, a bartender in New Delhi’s Tamarind hotel, was fired point blank and killed on her refusal to serve liquor to the accused. Even in a more gruesome incident, Priyadarshani Matoo, a young LL.B student was stalked by the accused for about two years and ultimately was raped and murdered by him in cold blood. Naturally, these incidents jolted the conscience of civil society and incited public furore. The people demanded death for both the culprits who happened to be the spoiled brats intoxicated by the heady brew of power and pelf of their parents (to borrow from Priyadarshani Matoo, 2010). In the Jessica Lall case, the accused was acquitted by the trial court while the Delhi High Court reversed acquittal and convicted the accused for murder and sentenced him to life imprisonment, which was upheld by the Supreme Court. In the Matoo case, a somewhat similar result followed. The trial court acquitted the accused. This judgement was reversed by the Delhi High Court, which convicted him for murder and rape and sentenced him to death. On appeal, the Supreme Court, while maintaining conviction, commuted death sentence to life imprisonment. In the perception of civil society, these murders were very gruesome which tended to endanger the life and safety of law abiding citizens and so deserved death. These judgments, no doubt, disappointed the public expectations, but on the anvil of the rule of “rarest of rare cases” laid down in Bachan Singh and followed in almost all cases since then, the Supreme Court was justified in awarding life sentence as it did. Perhaps court perception sometimes does not match the expectations of civil society. A study of case law since Bachan Singh (1980) shows that the court is perceptibly veering away from capital punishment to life imprisonment. In this context, a new development may be noted. It was observed in Jagmohan Singh (1973) that life imprisonment in effect meant only 12 years in prison. However, in Swamy Shradhananda (2008), it was noted by the court by referring to a catena of cases starting from Gopal Vinayak Godse (1961) to C.A. Pious (2007) that the punishment for life imprisonment implies a sentence of imprisonment of the convict for the rest of his life. Following this line of authority, the Supreme Court in Swamy Shradananda case (2008) where the convict (a tantrik) had committed gruesome murder of his wife, taking into consideration some mitigating circumstances, commuted death sentence of the convict and substituted it with imprisonment for life and directed that he shall not be released from prison till the rest of his life. In the United States, this type of sentence is known as life imprisonment without parole (LWOP). Some penologists argue that LWOP is a far more severe punishment than death. Interestingly, 311 prisoners serving life sentence in Italy petitioned their government in 2007 for the right to be executed. They cited LWOP as a living death where they die a little every day. It is easy to condemn capital punishment as barbaric, but is spending the rest of one’s life in prison so much less cruel to the prisoner or is it merely a way of salving society’s conscience and removing the unpleasantness for the staff and officials? Thus, the debate between the Abolitionists and Retentionists the world over continues.
The writer, a former Additional and Sessions Judge, Punjab, is currently Member, Governing Council, Indian Law Institute,
New Delhi
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Expedite mercy petitions
l The Union Government's process of taking action on the petitions of those on death row for Presidential clemency has been very slow. The President's power of pardon under Article 72 of the Constitution is not individualistic but institutional. The President can take a decision on a mercy petition only on the advice of the Union Home Ministry on behalf of the Union Council of Ministers. l
A Supreme Court Bench consisting of Justice Harjit Singh Bedi and Justice J.M. Panchal has ruled that if the executive authorities, as a “rigorous self-imposed rule”, are not inclined to take action on a mercy petition within three months from the date of its submission to the President, the condemned convict would be free to apply for commutation of his death sentence to life imprisonment. Otherwise, it will be violative of his right to life and personal liberty guaranteed under Article 21 of the Constitution. l
In February 2010, there was some forward movement when Union Home Minister P. Chidambaram met President Pratibha Patil. It was decided that beginning with the oldest mercy petition, the Union Home Ministry would send a formal letter to Rashtrapati Bhavan asking for recall of the file. Once the mercy petition was re-examined in the Home Ministry, the case would be sent back to the Rashtrapati Bhavan either with a request for the death penalty to be commuted to life imprisonment or with a reiteration that the case was fit for death penalty. l
Though Home Ministry officials say that the file movement has commenced, it is very slow and needs a gentle push. Apparently, the President is not inclined to reject mercy petitions in a hurry notwithstanding the Union Home Ministry's pro-active role on the issue. l
The debate about the continuance of capital punishment continues. Research shows that the relationship between deterrence and severity of punishment is complicated. It is not obvious how deterrence relates to severity and certainty. l
Criminal policy must be evidence-led rather than based on intuition which is often found to be wrong. In the absence of any significant empirical attention to this question by Indian criminologists, one cannot assume that severity of punishment correlates to deterrence to an extent which justifies the restriction of the most fundamental human right through the imposition of death penalty.
Those who escaped gallows
l Jagtar Singh Hawara, assassin of former Punjab Chief Minister Beant Singh (Punjab and Haryana High Court, Oct 13, 2010). The court upheld the death penalty of Balwant Singh, another co-accused, who confessed his hand in the crime. l
Cab driver Shiv Kumar for rape and murder of BPO employee Pratibha Srikantamurthy (Bangalore Fast Track Court, Oct 8, 2010). l
Santosh Kumar Singh for rape and murder of Priyadarshini Mattoo in New Delhi (Supreme Court, Oct 6, 2010) l
Six convicts of the 2006 Dalit family murder case. They get life imprisonment for 25 years (Nagpur Bench of Bombay High Court, July 14, 2010). l
Contract killer Mani Gopal for murder of the witness, a eunuch, inside the Tis Hazari court premises in 2003 (Delhi High Court, Aug 31, 2009).
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