O P I N I O N S

Perspective

A Tribune Special
Why the wheels of justice grind slowly
There is need for appropriate course correction if the law should again become the saviour of the masses, says Justice Mahesh Grover
The fading away of the First War of Independence into an inglorious chapter of a failure resulted in the process of colonisation of our country beginning with the Act of 1858, followed by Acts of 1905, 1919 and finally the Act of 1935 which laid the foundation for our Constitution.

Durable democratic order a far cry in Myanmar
by Sonu Trivedi
The people’s unprecedented support to Nobel laureate Aung San Suu Kyi has given a fillip to the pro-democracy movement in Myanmar. At this stage, the leadership doesn’t anticipate any threat from the ‘Lady’ as the Burmese Nobel laureate is popularly called, since her political party has been officially disbanded and the new Constitution restricts her from contesting any future elections in Myanmar.

OPED

Phoney statistics & phonier indices
Growth an expansion of human capabilities and freedoms
by Ash Narain Roy
THE categorisation of "free", "partly free" and "not free" countries by Freedom House and the World Press Freedom Index recently released by Reporters Without Borders cannot but evoke amusement. Till recently, the Washington-based Freedom House considered India as only "partly free". Only in 2009, the map of press freedom 2009 painted India as "partly free" while Mongolia was "free". For reasons best known to it, the Freedom House has placed India in its 2010 report in the category of "free" countries.

On Record
Anti-Torture Bill historic, says Ashwani Kumar
by Aditi Tandon
Former Union Minister of State for Industries Ashwani Kumar, a three-time member of the Rajya Sabha from Punjab, is known for the goodwill he commands cutting across party lines. No one was, therefore, surprised when he was chosen to head the Select Committee of the Upper House on the controversial Prevention of Torture Bill, 2010, which hit a roadblock in the Rajya Sabha after the Lok Sabha passed it in May. Kumar faced the task of reconciling differences of opinion on this vital law necessary for India to ratify the UN Convention against Torture which it adopted 13 years ago.

Profile
Sengupta bags award for arsenic removal plant
by Harihar Swarup
A research project near Kolkata tackling the world’s worst case of ongoing mass poisoning and creating the first low-cost chemical-free arsenic removal plant has won a UK award. The man behind the project is Dr Bhaskar Sengupta, an academic ambassador and senior lecturer in environmental engineering at Queen’s University in Belfast.

Perspective

A Tribune Special
Why the wheels of justice grind slowly

There is need for appropriate course correction if the law should again become the saviour of the masses, says Justice Mahesh Grover

Illustration by SANDEEP JOSHI

The fading away of the First War of Independence into an inglorious chapter of a failure resulted in the process of colonisation of our country beginning with the Act of 1858, followed by Acts of 1905, 1919 and finally the Act of 1935 which laid the foundation for our Constitution. Ironically, India’s first brush of modernisation also came with colonisation. The Britishers, to suit their mode of governance, introduced and implemented laws and the systems which they were accustomed to – Judiciary with its Anglo-Saxon flavour of jurisprudence was one such mode.

A country teeming with millions of illiterate, uneducated people were subjected to laws and procedures which they did not understand. The professional class trained in legal studies was confined to a scattered few, who were also seeped in British traditions and were thus more British in habits and traits to even remotely identify with the needs of the poor, illiterate masses who knocked the doors of justice.

With the departure of the Britishers in 1947 and the introduction of a spanking new Constitution, with a complete identifiable role for the legislature, executive and judiciary, things became no different for the ignorant masses whose jousting with the laws in alien language and intricate court proceedings hostage to labyrinth of procedural laws, with the fundamental principle of jurisprudence, "Ignorance of law is no excuse to condone a lapse", stared at them in the face.

It was thus left to courts and judges to come to the rescue of these masses. The judges were conscious of the needs of the illiterate people and were also acutely aware of the fact that availability of legal assistance was also far and in between and often too expensive for litigants.

Law necessarily is not what exists on the statute book. It exists in the realm of ambiguity and its growth essentially is more conspicuous in this area wherein the court’s contribution is paramount. A court judgement on facts in a given case if analysed in the context of another set of facts may seem conjectural, but may yet be applied, and in this situation, whether the result will be correct or not is anybody’s guess. But past decision of a court is a recognised concept of an evolving law and thus law can also be summed up as "specific past" or future judicial decisions.

The law evolved with the help of growing court decisions and from this maze emerged the concept of "substantial justice" where strict laws amenable to reason alone were interpreted and applied liberally to bend such reason in favour of the litigants, who due to their ignorance and the unprofessionalism of the lawyers, often failed to comply with procedural laws and failed to avail themselves of their remedy in time.

The Code of Civil Procedure, the law of limitation was made flexible, like the delicate bamboo shoot, to provide succour to the litigant to prevent failure of justice. A typical civil litigation would churn slowly with innumerable applications filed at various stages and the courts confronted with an obligation to decide all of them had to unwittingly put the main dispute on the backburner. The procedural exploits of the litigants aided by manipulative legal technique worked to the advantage of the litigant interested in delay while the courts, even though conscious of all this, liberally condoned lapses by wisely applying the concept that "panacea for all the ills was costs".

Compensatory costs as a measure of "equitable justice" became an appendage of "substantial justice" though it would be a moot question whether a party offered a bounty of a few hundred rupees was willing to barter a substantial right in favour of the other. Even the state which could not plead ignorance, illiteracy, pleaded red tape in claiming for itself the equitable right and the courts bestowed upon it similar legitimacy as they did to an ordinary litigant.

In Collector, Land Acquisition, Anantnag and another versus Mst. Katiji and others (AIR 1987 SC 1353), the Supreme Court of India acknowledged that the procedure taken by the government departments often resulted in delays and chose to condone inordinate delays in filing appeals etc. in favour of state also. Some observations made in that decision are extracted below:

"The doctrine of equality before law demands that all litigants including the state as litigant are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the state is the applicant praying for condonation of delay`85The approach of the courts must be to do even-handed justice on merits in preference to the approach which scuttles a decision on merits." A similar view was expressed by the Supreme Court in State of Haryana versus Chandra Mani and others (AIR 1996 SC 1623) and many subsequent judgements.

This raises the question: "whether the above adopted course by the courts has proved counterproductive and has acknowledged, approved and perpetuated inefficiency? And whether such a course has also contributed to the clogging of courts, caused delay in disposal of cases and aided unscrupulous and manipulative litigants or not?"

To understand, we may begin by reverting to from where we started. After Independence, as our tryst with destiny began, availability of education facilities increased. More people became aware of laws, the professional class of lawyers increased manifold even though quantity was not necessarily matched with quality. Nevertheless they understood law and provided service to the litigating class.

In this scenario, though it was desirable to tone down the liberal condonation of lapses, which the statute prohibited but courts permitted, that was not done. As a result, the litigants and the lawyers sensed in this approach an opportunity to thwart the course of justice upon which the other party had embarked. Gradually, the pendency increased and became an albatross around the neck of the system. The unwanted child was thrust into the lap of the judiciary alone and gleefully accusing fingers were pointed to it.

As the outcry increased, there was a desperate groping for the solution and measures such as increase in the strength of judges, adequate infrastructure etc. became a favourite debating exercise. Finally, welcome changes were incorporated in the Civil Procedure Code (CPC) even though given the gravity of the situation, the changes seemed only half-hearted.

Changes in the CPC are noteworthy:

• Order 8 Rule I: Written statement by the defendant within 30 days after service of summons upon him or her.
• Order 6 Rule 17: No amendment after commencement of trial.
• Order 18 Rule 4: Recording of examination-in-chief of a witness on affidavits.
• Section 89: Alternative disputes redressal mechanisms.
• Deletion of Order 18 Rule 17A: No additional evidence.

Consequently, it has become counter-productive and the situation is akin to a patient who treated with antibiotics over a period of time becomes resistant to its action. It is time for appropriate course correction, at least a gentle maneuvering, to remove the tilt and make the scales even. Otherwise, the changes made by the legislature, even though half-measures, would lose their significance and the adage "Well begun is half done" may prove to be wrong.

The writer is Judge, Punjab and Haryana High Court, Chandigarh

Durable democratic order a far cry in Myanmar
by Sonu Trivedi

The people’s unprecedented support to Nobel laureate Aung San Suu Kyi has given a fillip to the pro-democracy movement in Myanmar. At this stage, the leadership doesn’t anticipate any threat from the ‘Lady’ as the Burmese Nobel laureate is popularly called, since her political party has been officially disbanded and the new Constitution restricts her from contesting any future elections in Myanmar.

The manner in which the election was conducted and the way the voices for democracy crippled shows yet another case of hypocrisy to the world by Myanmar. This raises serious doubts over the junta’s plea of moving ahead for a democratic transition in Myanmar. It also leads to substantial concern about the ‘strings’ attached with the release of Suu Kyi and the rest of the political prisoners in Myanmar and neighbouring countries. The regime is all set to establish a facade of institutional democracy and cosmetic change in Myanmar.

Though, the election held on November 7 after a gap of 20 years, has paved the way for a transition from military rule to a supposedly civilian administration and democratic opening in Myanmar, the fact that these were swept by the pro-junta political party — Union Solidarity and Development Party (USDP) and its allies — exposes the myth of democratisation in Myanmar.

In the absence of any clear opposition with the National League of Democracy being disbanded, the elections were widely seen as an attempt to legitimise military rule behind a mask of civilian government. The international reaction is also split between its neighbours and supporters in the region and the critics in the Western world.

Civilian dictatorship sought to be established in the post-election Myanmar would characterise an illusion of multi-party democracy at the local and national level while effectively stripping the legality and efficacy of the elections. It has dashed all hopes for democratic change in Myanmar. The election though was just a sham to adopt the new Constitution as drafted by the National Convention. The regime alleges that it is preparing for a transition period from military rule to a supposedly civilian administration popularly conceived by the leadership as “disciplined democracy”.

The Political Parties Registration Law, enacted by the military junta in March 2010 ahead of general elections, was aimed at keeping the popular leaders including Aung San Suu Kyi out of the electoral process. The junta has barred anyone convicted of a crime from being a member of a political party. Further, parties that want to register under the new law must expel members who are “not in conformity with the qualification to be members of a party.” This meant that Suu Kyi was to be expelled before her party could contest election.

This posed a dilemma before the NLD whether to participate by expelling her or to completely boycott the elections. The party was, however, disbanded for failing to register under the new election law.

Furthermore, the President should be an indigenous Burmese. The Constitution lays down that the President shall be a person who has stayed in the state continuously for a minimum of 20 years at the time of the election of the state President. Further, either of his parents, spouse, any legitimate child shall not be a loyal subject to any foreign government or a person under the influence of a foreign government or citizen of an alien country. This has disempowered Suu Kyi from contesting the presidential election as her husband was a British national.

Under the Charter, a quarter of seats in both houses of new Parliament are guaranteed for the military — at the national, regional and state assemblies i.e. in the new 440-member House of Representatives, there would be 330 elected civilians and 110 military representatives.

The draft Constitution makes it virtually impossible to amend the clauses because more than three quarters of the members of both Houses of Parliament need to approve any amendment. Given that the military holds at least one quarter of the seats, their representation will be significantly higher and hold an effective veto. The President, the future head of the state, will also have to be a member of the military. In addition, the Army retains the key ministries, including Defence, Economy and Border Affairs.

The Electoral Law of 2010 was in itself discriminatory and further perpetuates authoritarianism. It provided that parties must declare that they will “safeguard the Constitution”. As a serious human rights violation, the Constitution lays down that the President is above the law; it further provides for impunity for past crimes by government officials; and a total suspension of “fundamental rights” during indefinite and undefined states of emergency. The elections were also not held in border areas which were deemed to be “insecure”. This has dashed the hopes of ethnic-based parties to win in border regions.

According to Myanmar experts, these processes are deeply flawed and seem to be aimed at consolidating military rule behind the facade of a parliamentary government. As Burmese way to socialism under Ne Win was a complete failure, the same is expected from the Military way to democracy.

At this stage, there is an imperative need for inclusive growth and debate, discourse and democracy in the development process in Myanmar. The government must create conditions that give all stakeholders the opportunity to participate freely in establishing a durable democratic order in the country.

The writer is Asst Professor, Dept. of Political Science, Zakir Husain College, University of Delhi

OPED

Phoney statistics & phonier indices
Growth an expansion of human capabilities and freedoms
by Ash Narain Roy

THE categorisation of "free", "partly free" and "not free" countries by Freedom House and the World Press Freedom Index recently released by Reporters Without Borders cannot but evoke amusement. Till recently, the Washington-based Freedom House considered India as only "partly free".

Only in 2009, the map of press freedom 2009 painted India as "partly free" while Mongolia was "free". For reasons best known to it, the Freedom House has placed India in its 2010 report in the category of "free" countries.

Whether the small mercy has been shown to India because of America’s growing strategic ties, or should one say, strategic need in view of Chinese threat, one can only conjecture. One is, of course, not surprised by the way the West has, in recent years, begun to treat India on a higher pedestal. India has suddenly become international flavour.

India does not seem to have changed much. It was a democracy in the 1950s and 1960s, during "the most dangerous decades", to borrow a phrase from Selig S. Harrison, it remains a democracy now. Only the Western analysts have changed the way they looked at India. Those who dismissed the country as a land of "million mutinies" are, today, never tired of eulogising India’s success story to be replicated by the world.

For long India was defined by the Taj Mahal and the Kamasutra. In later years, the "strange and exotic land" was known only for Gandhi and poverty. In the years preceding the economic reform, India was not seen at all. It dropped out of the Western consciousness. What an irony that a democratic India was off the West’s radar while communist China was an ally! Today, the West has made India the poster boy of liberalism.

The Reporters Without Borders shows no such mercy. The Press Freedom Index 2010 has placed India on 122^nd position, only one above Zimbabwe. Haiti, Bhutan, Comoros, Liberia are placed much above India. Perhaps the only consolation that India can take is from the fact that Afghanistan and Pakistan have been placed below it.

The Reporters Without Borders makes the right noise about the most repressive countries like Burma, North Korea, Turkmenistan and some others. It has warned against some European Union members running the risk of losing their position as world leader in respect of human rights. It has also taken France and Italy to task which witnessed violation of the protection of journalists’ sources, concentration of media ownership, displays and contempt on the part of government officials towards journalists and judicial summons.

Does one take these certifications seriously? One can only laugh at any index that brackets India with Zimbabwe. Statistics are often crude. The UNDP recently came out with a report that said a higher percentage of women in Pakistan are treated with respect (81 per cent) than in India (79 per cent).

Pakistan has the notorious hudud law. According to this law, if any woman is sexually abused, she is required to bring four eye witnesses. Otherwise, she will be charged for adultery. A woman is only half the witness. Asma Jahagir said recently while delivering Justice Sunanda Bhandare Memorial Lecture in Delhi, that "divorce is the cheapest thing in Pakistan. A man has to just spend Rs 10 to send a letter of talaq to the Union Council and sleep over it. And then he automatically gets a divorce. In 82 per cent of such cases, women have got only Rs 32 as meher. One fails to understand how the UNDP thinks Pakistan treats its women with respect.

One needs to judge India, or for that matter any other country, not by crude statistics but by the success of its transformative politics. Amartya Sen, Joseph Stiglitz and the Organisation of Economic Cooperation and Development (OECD) have recommended using happiness, quality of life and distribution of income to assess economic growth. These indices, rather than narrowly focused GDP, Sen believes, could improve policy-makers responses to problems in the economy.

Amartya Sen is of the view that countries should take into account less elementary indicators than the HDI which would provide a better understanding of social issues. Sen cites the American example where the GDP has stopped falling but as long as unemployment continues to rise, the lives of many Americans would remain very precarious.

There is need to go beyond human development index or the Press Freedom Index. Development should be seen as an expansion of human capabilities and freedoms. In measuring development, we need to factor in political freedoms, participation, empowerment and collective action. Many of the development paradigms that the West has set need to be seriously questioned.

A poor woman in India who can decide what to do with her life is better off than a richer woman of China or Saudi Arabia who is told by her father or husband what she can or cannot do. Amartya Sen has argued that a democratic society, where people are free to make choices, is better equipped to tackle poverty.

In some sense, growth can never be considered progress. As Rabindranath Tagore warned us three quarters of a century ago: "We have`85been dragged by the prosperous West behind its chariot, choked by the dust, deafened by the noise, humbled by our own helplessness and overwhelmed by the speed`85" Can this "chariot drive" be called progress?

The writer is Associate Director, Institute of Social Sciences, New Delhi

On Record
Anti-Torture Bill historic, says Ashwani Kumar
by Aditi Tandon

Former Union Minister of State for Industries Ashwani Kumar, a three-time member of the Rajya Sabha from Punjab, is known for the goodwill he commands cutting across party lines. No one was, therefore, surprised when he was chosen to head the Select Committee of the Upper House on the controversial Prevention of Torture Bill, 2010, which hit a roadblock in the Rajya Sabha after the Lok Sabha passed it in May. Kumar faced the task of reconciling differences of opinion on this vital law necessary for India to ratify the UN Convention against Torture which it adopted 13 years ago.

In nine sittings beginning September, the former AICC spokesperson and Additional Solicitor-General of India, who has been on the parliamentary panels on energy, finance, IT and external affairs, not just managed a fine draft legislation having perused 800 memoranda but also pulled off a feat – the report presented on December 6 had no dissent note from any of the 13 committee members. Kumar spoke to The Tribune about the report.

Excerpts:

Q: In the Prevention of Torture Bill, concerns remain on the retention of prior sanction to prosecute a public official. Are you satisfied with the reworked draft?

A: No process of law-making is perfect. Our committee has struck a balance to make the law purposive and effective. It was necessary to retain the provision of prior sanction to prosecute a public official as demands of governance required that honest officers were insulated from malicious complaints.

Q: The government might find hard to accept suggestions like the one on sanction being deemed to be given if not granted in three months ?

A: The government will recognise the validity of our suggestions. These have been made to enable India to ratify the UN Convention. The amended law is historic.

Q: Within the purview of the Bill, which was the most difficult part to reconcile?

A: There were discussions on whether to have a stand-alone law. Some favoured amendments to the IPC and Cr PC provisions against torture. But overwhelming support surfaced in favour of the former. We clarified that the Bill’s core objective was to help India ratify the Convention which could not be signed in the absence of a domestic law. The Government too had preferred a Central law pursuant to Article 253 of the Constitution to honour an international treaty.

This law, unlike the amended IPC, would apply to entire India. All states we engaged including Jammu and Kashmir supported a stand-alone law so did the jurists. Also the Central legislation makes new provisions like independent investigation, victim compensation and witness protection which are absent in the IPC. Most importantly, once the Rajya Sabha had, on a motion, referred the Bill to us, our jurisdiction and remit did not extend to questioning the form of the law.

Q: The earlier law contained a weak definition of torture limiting it to physical bodily harm. How did you expand the scope to include mental trauma and offences against women and children?

A: We borrowed from the Phillipines where the law against torture lists acts of torture in the draft itself. We included in the definition of torture an explanation of what constitutes torture. The explanation lists systemic beating, punching, kicking, and depriving someone of food, administering electric shocks or drugs to induce confession, rubbing chemicals in the mucous membranes, rape and threat of rape, mutilation, and acts of torture against children. We have also shifted to the accused the onus of proving he didn’t commit torture intentionally.

Q: What about the Opposition’s demand for a Joint Parliamentary Committee probe?

A: The Opposition’s obduracy in stalling debate is unfortunate, particularly when the Public Accounts Committee is seized of the matter. The government’s offer to invest the PAC with the expertise of investigating agencies or to have an SC-monitored CBI probe demonstrates its intent to unravel the truth.

Q: Why is the Centre reluctant to have a JPC probe?

A: The JPC demand is intended to serve the Opposition’s political objectives like summoning the Prime Minister. Conceding would amount to exhibiting lack of confidence in the existing parliamentary committees.

Profile
Sengupta bags award for arsenic removal plant
by Harihar Swarup

Dr Bhaskar Sengupta

A research project near Kolkata tackling the world’s worst case of ongoing mass poisoning and creating the first low-cost chemical-free arsenic removal plant has won a UK award. The man behind the project is Dr Bhaskar Sengupta, an academic ambassador and senior lecturer in environmental engineering at Queen’s University in Belfast.

Dr Sengupta and his colleagues in the School of Planning, Architecture and Civil Engineering received the outstanding engineering research team of the year title. They received the accolade at The Times Higher Education awards in London. Currently over 70 million people in Eastern India and Bangladesh experience involuntary arsenic exposure from consuming water and rice — the main staple food in the region. This includes farmers who have to use contaminated groundwater from minor irrigation schemes. It is estimated that for every sample of 100 people in the Bengal Delta, at least one person will be near death as a result of arsenic poisoning while five in 100 will be experiencing other symptoms.

The team established a trial plant to Kasimpore near Kolkata offering chemical-free groundwater treatment technology to rural communities for their drinking and farming needs. Six plants are now in operation in rural locations in West Bengal and are being used to supply water to the local population using subterranean arsenic removal technology, Early this year, Dr Sengupta received an excellence award from the Asian Water Industry and the St Andrews Prize for the Environment.

The World Health Organisation (WHO) has time and again stressed that “arsenic in drinking water is a major public health hazard and should be dealt with as an emergency”. What is worrying is that the arsenic, which is swept down from the Himalayas and used to be deposited in silt on riverbanks, started becoming soluble 30-40 years ago. Scientists say, this is because the introduction of modern methods of intensive farming using huge quantities of chemicals fertilisers upset the balance of nature.

To solve the problem, Dr Sengupta had to go back to basics and understand how the arsenic came to be in the water in the first place. Arsenic is present in the mineral matters deposited in the form of silt by major rivers in West Bengal and Bangladesh.

Arsenic is present in the mineral matters deposited in the form of silt by major rivers in West Bengal and Bangladesh. The arsenic-bearing minerals exist in the shallow aquifer zones (up to 200-ft soil depth) of the region.

While researching the history of groundwater extraction, Dr Sengupta zeroed on a technique that had been used in Germany for well over a century to take out unwanted manganese and iron also removes deadly arsenic. Sengupta flew to Stuttgart and at once realised that the precipitation process, which removes the iron, also precipitates the soluble arsenic. He did not have to invent something new.

To find out its effectiveness in the Delta region, a TIPOT (Technology for in-situ treatment of ground water for potable and irrigation purposes) project founded by the European Union was initiated in Kasmispore branch of Ramakrishna Vivekananda Mission, Barrackpore. After treating for a few months, the arsenic level came down substantially. Dr Sengupta was proven right.

The conventional technologies used in South Africa and elsewhere for arsenic removal are based on ‘pump and treat’ method involving either absorption or membrane processes. Such plants are expensive to run and have problems associated with waste disposal and maintenance. In contrast, Subterranean Arsenic Removal (SAR) or “In-situ treatment” plant neither uses any chemical, nor produces any waste. Its installation is similar to a tubewell — all parts are easily available and can be installed by village technicians.

Queen’s University, Belfast, is credited with setting up the world’s first low cost and chemical free water treatment plant in the arsenic belt of India. Six such plants are now in operation in rural locations in West Bengal, close to Bangladesh border, with World Bank assistance.

These plants are managed by the local water users’ association and are being used to supply water to the local population. Each plant can produce up to 6000 litres of safe drinking water to the local population.