|
|
Indian exceptionalism amid ordered chaos
Voting rights for NRIs: An optical illusion
|
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Making judges accountable
Profile
On Record
|
Indian exceptionalism amid ordered chaos
Modern thermodynamics tells us that there are three basic kinds of systems —isolated, closed and open. India too is simultaneously isolated, closed and open. It is thanks to Indian exceptionalism that the Indian model is hard to replicate. It would seem only India can replicate itself. Since India is like the “perfect circle”, whose performance and comportments are often non-linear, any prognostication about India is a hazardous exercise. India is marching ahead despite the political class not covering itself in glory. Dismal the political scenario in India has been for a long time; in 2010 it bordered on the despairing, some would say. Perhaps such pessimism is uncalled for. The year gone by was hardly the “spring of hope”. But it wasn’t the “winter of despair” either. The country reached many new milestones but not before missing some deadlines. Should that surprise anyone? Prime Minister Manmohan Singh, whose government is facing a barrage of criticism over scores of scams, would have perhaps told himself at the dawn of 2010, “Things can’t go on like this” and they didn’t; they got worse. The Opposition has its own feet of clay. Our political class has long forgotten Churchill’s advice who said, “Politics is the ability to foretell what is going to happen tomorrow, next week, next month and next year. And to have the ability afterwards to explain why it did not happen.” But as Hegel’s dictum tells us, we learn from history only that people learn nothing from history. The idea of perfect democracy seems absurd. Democracies exist in a constant state of tension and incompleteness. But the paralysis of the entire winter session of Parliament marked a new low. We seem to have reduced democracy to a never-ending belittling scrap to the detriment of governments and governance. Parliament is a forum for debate and discussion, not for shying away from it. What the country is witnessing today is a war of attrition. True, the 2G Spectrum allocation scam is the largest political corruption case in modern Indian history. And those responsible for bringing this shame to the country and loss to the exchequer must be brought to book. Unfortunately, the demand for a Joint Parliamentary Committee probe has become political only to pin down the UPA government, especially the Prime Minister. Members of big and small parties have their fingers dipped in the corruption mud. “Your corruption is bad and mine is good” is downright chicanery and hypocrisy. On the charges against Karnataka Chief Minister B.S. Yeddyurappa of corruption in land allotment to his sons and relatives, BJP president Nitin Gadkari has come out with a gem, “it is immoral but not illegal”. Gadkari apparently believes two wrongs do make a right! The UPA faced choppy weather on most fronts. The resignation of A. Raja as Union Telecom Minister came too late in the day. The Adarsh scam case was different. Here the Congress did the damage control in time by sacking Ashok Chavan, something the BJP failed to do in case of Yeddyurappa. The action against Suresh Kalmadi also left much to be desired. Politically too, 2010 was a bad year for the Congress, not just in terms of electoral setback in Bihar but a serious challenge in its stronghold, Andhra Pradesh. The party is facing a formidable challenge over Telangana. The rebellion by Jagan Mohan Reddy, coupled with the Telangana imbroglio could undermine the UPA’s prospects in future. Rahul Gandhi’s Ekla Chalo plank received a grievous blow from the Bihar setback. The new year will bring new challenge as state elections in Tamil Nadu, West Bengal, Assam and Kerala will have a bearing on the UPA’s continuance in power. While indecisiveness, wrong priorities and complacency have played their part in bringing the UPA to such a pass, much of the problems have to do with the compulsions of coalition politics. In a coalition government, small parties can exercise a disproportionately great — and often decisive — influence on the government. It leads to decay of responsibility. The NDA may be ecstatic about UPA’s unease and the mess that it finds itself in, but it too can be in a similar soup if voted to lead a coalition government in future. Let us not forget how the Vajpayee government was kept on tenterhooks by the two dozen alliance partners in 1998. The 2G Spectrum allocation scam may have revived hopes of NDA resurgence among BJP leaders. That perhaps explains the party’s refusal to give up its insistence on the JPC. But with its own house on fire in Karnataka and the internal squabble among senior party leaders, it may turn out to be an act of premature triumphalism. What is worrisome is that the continuing stand-off over the JPC could spill over to the Budget Session of Parliament. That would be sad. What an irony that in a year when our MPs got themselves the bonanza with manifold increase in salaries and allowances, it also saw unprecedented washout of an entire session! Who would care for ‘no work, no pay’ now? No less worrisome is the growing political expediency in governmental business. While the Rajya Sabha passed the historic Women’s Reservation Bill, political expediency ensured that it never came up for discussion in the Lok Sabha. So much for the lip service to women’s empowerment! The government that talks so much of inclusive growth, did so little for aam aadmi who suffered on account of the soaring price rise. By the year-end, the food inflation soared to 14.44 per cent. But it was the economy that brought cheers. Things were somewhat better on terrorism front. Thanks to better intelligence, greater vigilance and vastly improved counter-terrorism capabilities, there were fewer incidents of terrorist depredations. But any lowering of guard will undo the good work. The Kashmir interlocutors have managed to take the steam off the volatile situation but the government would require sustained dialogue with all stakeholders including the Hurriyat to maintain a semblance of peace. India’s biggest challenge comes from the left-wing extremism. Prime Minister Manmohan Singh has said it often that the Naxalites pose “the single biggest internal security challenge ever faced by our country”. Union Home Minister P. Chidambaram has openly admitted that the leftist guerrillas have “the capability to strike at will, giving them an upper hand over security forces.” Chhattisgarh accounted for a major part of casualties on the part of security forces, but the problem hardly got better in Orissa or Jharkhand. However, the voters in Bihar and Jharkhand gave rebuff to Maoists when they turned out to vote in large numbers in the Naxalite-infested regions. With India’s footprints on the global stage rising, 2010 was a year of high-power diplomacy. Over 25 heads of state and government visited India. Prime Minister Manmohan Singh himself visited 11 countries. Three of the P-5 heads of state and government came to India in December alone, preceded by the visits of President Obama and Prime Minister Cameron. Was this flurry of visits reflective of India’s robust foreign policy or it was simply a case of India working overtime to get to the high table? India has definitely become a ‘swing state’, a power that can influence peace and security. India’s desire to join the high table may have been ridiculed by Hillary Clinton as a “self-appointed frontrunner” but President Obama’s support for India’s ambitions can be seen as grudging recognition of new global reality. India’s global profile has grown in line with its robust economic performance and its ability to manage its multi-faceted diversities. But there are challenges from China, Pakistan and challenges from within. India will be called upon to play a larger global role in line with the evolving global security structure. That will bring India in conflict with China. India’s new profile will also require shedding some of its conventional positions. India will be required to invent and re-invent itself. Over the past few years, India has focused primarily on Europe and North America and East and Southeast Asia. Now the time has come to cultivate Africa and Latin America. Thanks to the good work of the Ministry of External Affairs and some of our missions, Latin America now blips on our radar. The government has now indicated that it will engage Africa meaningfully. Well, the 50-odd continent counts in the UN. India’s pragmatism on Burma is understandable but pro-democracy leader Aung San Suu Kyi’s brave fight for democracy need not be ignored. On balance, India will surge ahead. Even if our democracy does not deserve three cheers, it does merit two cheers. It continues to be a shining example of how a developing country with many contradictions can keep the flame of democracy alight. But the threats to democracy remain strong which the sedition charges against Arundhati Roy and the life term meted out to Binayak Sen clearly demonstrated. Blatant disregard of civil liberties and violation of human rights continue. The hungry and the abysmally poor Indians, especially in the tribal belt, suffer the most as their basic human right to life remains under threat. After all, democracy is judged, says Amartya Sen, “not just by the institutions that formally exist but by the extent to which different voices from diverse sections of the people can actually be heard.” All said, the best thing about the future is that it comes only one day at a time and that sometimes the most telling event is the one that did not happen.n The writer is Associate Director, Institute of Social Sciences, New Delhi
|
|
Voting rights for NRIs: An optical illusion
On the eve of the Pravasi Bhartiya Divas (PBD) 2011, announcements have been made in Parliament with much fanfare by the Centre that a “Gazette Notification has been issued giving voting rights to Non-Resident Indians.” In the debate on the Representation of People (Amendment) Bill, 2010, to allow NRIs to exercise their franchise in Indian elections, the government stated that comprehensive electoral reforms are on the cards as the Union Cabinet has cleared amendments to the Bill. The Rajya Sabha has now passed the Bill.
The Representation of People Act, 1951, is awaiting some changes. As of now, NRIs are barred under Section 19 of the Act from voting if they remained outside India for six months for whatever reasons. The government has proposed inserting sub-section 1AA under Section 20 of the Act to do away with this disability to give voting rights to
NRIs. The definition of NRI is elusive in the Citizenship laws. However, Section 2 of the Foreign Exchange Management Act, 1999
(FEMA) defines a person resident in India and a person resident outside India but does not define the term
NRI. However, a notification defines NRI to mean a person “resident” outside India who is either a citizen of India or a person of Indian origin. Under
FEMA, a person “resident” in India is one who resides in India for more than 182 days in the preceding financial year and who comes to stay in India for any purpose. A “Non-Resident” is merely defined as a person who is not a resident of India. Therefore, an NRI can be summed up as an Indian citizen who is ordinarily residing outside India and holds an Indian passport. This is easier said than done. For whom are these voting rights meant? It is stated that they are meant for three categories of 11 million NRIs who are not residents in India. First, they are Indian citizens who stay abroad for employment or business or vocation or any other purpose indicating an indefinite period of stay abroad. Secondly, they are Indian citizens working abroad on assignments with foreign government agencies. And thirdly, they are Indian officials of Central or state governments deputed abroad on temporary assignments or posted in Indian missions abroad. The voting rights for NRIs are otherwise an optical illusion. This is because the government notification excludes Indian citizens who have become foreign nationals. And secondly, eligible voters can exercise their franchise only if they are present in the constituency on the polling day. There is no provision for postal ballots or provision for casting votes at Indian Embassies and Consulates abroad. Electronic voting is yet a far cry. Clearly, the announcement is illusory. The announcement is, therefore, a
pre-PBD public relations exercise. Even NRIs gain little. The principal issue remains. Both the Constitution of India and the Indian Citizenship Act, 1955, categorically prohibit dual citizenship and debar holding of two nationalities simultaneously of two different countries. To strike a compromise, the government amended the Citizenship Act, in 2005 to create a class of Overseas Citizens of India
(OCI). This was primarily only the grant of a multiple-entry lifelong visa for Indians-turned foreigners who could visit India anytime without a normal visa for any purpose whenever they like. However, the amended Section 7 B of the Citizenship Act specifically prohibits political, voting and other rights for
OCIs. Thus, the bar of dual citizenship will never give way to any voting rights to Indians who are foreigners under the label of
OCIs. Consequently, only the 11 million NRIs with Indian passports qualify for voting rights if they are physically in India on the polling day. The remaining 19 million foreign national NRIs do not even qualify to vote. The 11 million Indian NRIs have to ensure their physical presence on the day of the polling to vote. Patriotism to vote is not so strong that the NRI will travel to India only for purposes of exercising his/her franchise. Clearly, the purpose of voting proves futile. In the World Bank’s just released Migration and Remittances Fact Book 2011, it is stated that India continued to be the largest recipient of remittances in 2010 with figures stated to be rising from $49.6 billion in 2009 to $55 billion in 2010. India is also stated to be the country with the second largest number of emigrants after Mexico. Our 30 million NRIs live in 130 countries abroad but we only want their euros, dollars and pounds. If we wish to have the best of both worlds, the serious option is not voting rights but dual nationality. The homing pigeons must be allowed the flight home with landing rights. The time has now come for Indians to be recognised as citizens of India irrespective of their current nationality and place of residence abroad. Partial compromises will not do. The package and deal should be wholesome. Indians abroad should be given Indian Citizenship irrespective of parallel identities of foreign citizenship. Dual nationality should be a reality and not a dream. Our Indian brethren are not step-children. There is need for a relook at the issue which may warrant a constitutional amendment. This exercise must start in the new year. It may take a while but it would be
worthwhile.n The writer, Advocate, Supreme Court and Punjab and Haryana High Court, is the author of “India, NRIs and the Law” (Universal Publishing Law Co., New Delhi, 2009)
|
Making judges accountable
Does the Judicial Standards and Accountability Bill, 2010, impinge upon judicial independence because it seeks to make the Supreme Court and high court judges accountable? Our response is clearly negative. It seeks to relate people’s perception about the judges and their conduct in administering justice. This is done for ensuring greater transparency in the functioning of judiciary. It provides a statutory mechanism to address people’s complaints. Such a measure is missing in the Judges (Inquiry) Act, 1968, which is sought to be repealed and replaced by the Bill.
In the Bill, the measure of judges’ accountability is not new. The singular measure of judges’ accountability is the judicial standards adopted by the Full Court of the Supreme Court of India on May 7, 1997. The formal adoption of these standards was in the form of the Restatement of Values of Judicial Life. These standards intrinsically reflect and reproduce the universally accepted values of judicial life. Failure to observe them constitutes ‘misbehaviour,’ implying the conduct which brings dishonour or disrepute to the judiciary; or willful or persistent failure to perform the duties of a Judge; willful abuse of judicial office; or corruption or lack of integrity which includes delivering judgements for collateral or extraneous reasons; making demands for consideration in cash or kind for giving judgments or any other action on the part of the Judge which has the effect of subverting the administration of justice. Non-declaration of assets and liabilities in accordance with the prescribed provisions or willfully giving false information in the declaration of assets and liabilities, or willful suppression of any material fact, whether such fact relates to a period before assumption of office, which would have bearing on his integrity, etc. will also fall within the ambit of misbehaviour. However, till date, the judicial standards reflecting these values have remained dormant in the domain of discretion or one’s own volition of the judge. As such, being unenforceable, these standards do not carry any legal authority. This lacuna lessens the legitimacy of those value standards and makes their functional value somewhat suspect in the eyes of the people. To give the requisite legal sanction, the Bill attempts to make these standard values as part of the statute. “This measure,” it is sanguinely stated in the Statement of Objects and Reasons, “is also likely to increase public confidence in the judiciary considerably as the judges would be required to follow the prescribed judicial standards.” The Bill seeks to strengthen the institution of judiciary by making it more accountable in a formal manner by an Act of Parliament, and thereby increasing the faith and confidence of the Indian public in the administration of justice. However, the singular feature of this exercise is that judicial standards have been made enforceable but without in anyway undermining the independence of judiciary. This is to be accomplished through the so-called in-house mechanism or institutional arrangement with adequate safeguards. Any aggrieved person who alleges misconduct in respect of a judge may file a complaint in this regard to the National Judicial Oversight Committee which will consist of a retired Chief Justice of India appointed by the President after ascertaining the views of the Chief Justice of India as the Chairperson, a Supreme Court Judge, a High Court Chief Justice, both nominated by the Chief Justice of India, the Attorney-General of India, and an eminent person to be nominated by the President. In its wisdom, this committee shall refer the complaint to the appropriate Scrutiny Panel, depending upon whether the judge referred to in the complaint is of the Supreme Court or the High Court. Three-member Scrutiny Panels are to be constituted solely by either the Chief Justice of India or the Chief Justice of the High Court, and, that too, of the retired Chief Justices and the sitting judges themselves. If the Scrutiny Panel in its report recommended inquiry for alleged misbehaviour by a Judge, the Oversight Committee shall refer the matter for a critical probe to the Investigation Committee constituted by it for the purpose. The merit of the Bill lies in the fact that now a citizen has the forum to ventilate his legitimate grievance against a judge without fear. Since the proceedings are to be conducted in camera and with absolute confidentiality, these provide a valuable safeguard to both the complainant and the complained person. If the allegations are found to be frivolous or vexatious, or made with the intent to scandalise or intimidate the judge, he should be ready to face the criminal consequences punishable with rigorous imprisonment for a term which may extend to five years and also a fine which may extend to Rs 5 lakh. The Bill’s redeeming feature is that the judges’ accountability is measured by their own peers without any intervention either by the executive or the legislature. True, in the extreme case of removal of a judge, eventually we are required to undergo the complex of parliamentary processes and procedures as envisaged under the Constitution. But this should not mar the merit of the Bill. In the normal course of life, the domain with which we, the people of India, are largely and invariably concerned, is it not the enough dissuading sanction that the conduct of a person holding the prestigious position of a judge is to be probed by his own peers amongst whom his whole gamut of life, including both social and professional, revolves? Moreover, a judge should necessarily be fair, reasonable and impartial in his decision making. For this, he is guaranteed constitutionally judicial independence. However, this independence is not the freedom for him to do whatever he likes. It is essentially the independence of judicial thought. It is this independence that emboldens him to be free from all sorts of extraneous considerations, influences or pressures, whether from within (from others in the judiciary) or without (from the executive). The measure of enforceable accountability articulated by the Bill is to strengthen, rather than weakening, judicial independence.n The writer is the Director (Academics), Chandigarh Judicial Academy
|
|
Profile
A social worker was busy finding donors for families who could not afford medical care. An entire makeshift and effective system, outside the hospital walls and beyond the medicines, had evolved to take care of the children. The oncologist, Siddhartha Mukherjee, who stood on the hospital steps, reportedly said: “I was so proud that I was almost in tears. It sounds over-emotional, but it wasn’t. Here were men and women from far-flung areas of North India, who had packed their bags and brought their children to Delhi for treatment. And, they had been received with open hearts, compassion and pragmatism.” The 40-year-old Dr Mukherjee, now a cancer specialist and assistant clinical professor at the Oncology Department at Columbia University, New York, brings a similar kind of compassion and pragmatism to his first book — The Emperor of All Maladies: A Biography of Cancer. The battle between medical treatment and cancer is told in detail but also with a gentle touch. He recreates both past discoveries and personal battles. Several generations ago people did not talk about cancer, yet today it’s an unfortunate reality that almost everyone knows someone with cancer. Researchers and medical professionals alike are often asked the same question by patients and their families: why is cancer so common today and when will there be a cure? The Emperor of All Maladies is an informative and ambitious attempt to answer these questions. Dr Mukherjee explains that cancer is not a new disease. It was first described by Egyptian and Greeks thousands of years ago. However, cancer had a low profile back then as other diseases such as the Black Plague held more fear for patients and the general populace around the world. At the turn of the century, new treatments were discovered and better sanitation and living conditions resulted in a dramatic decrease in deaths from the more infamous TB or influenza. This led to increased life expectancies. Dr Mukherjee’s history lesson points out that cancer can be caused by more than just aging. It can be caused by the so-called modern advances of the 20th century. More important, according to him, was increase in smoking after World War II which led to a significant increase in deaths due to lung cancer. It continues to be so till this day. Mukherhjee, who was a Rhodes Scholar, describes cancer patients of past and present to illustrate that cancer’s biography is the patients and families dealing with the disease. He describes cancer as “a living, changing and lethal disease that acts more a distorted version of our normal selves”. This makes cancer different from other diseases that occur when outside enemies like viruses or bacteria attack our bodies. Mukherjee describes how doctors combined chemicals creating early drug cocktails often bringing patients to the brink of death. However, in certain cases, there were lasting remissions and sometimes cures. There are cures for cancer but it can be so toxic or drastic that the cure is worse than the illness. It became evident that to defeat cancer, we needed to know our enemy. With some false starts, scientists found that cancer is caused by genes that are either turned on or off to increase cell growth. The Emperor of All Maladies has been rated among the 10 best books of 2010 by the New York Times. Published in November 2010, the book ranked third among five non-fiction books in the list that was released on December 12. Mukherjee grew up in Delhi graduating from St Columba’s School. His father was a manager for Mitsubishi and mother a school teacher. It was at Columbia that he acquired love of literature, especially Shakespeare, which explains why his answers are effortlessly fluent and well constructed. It could also have been the place which triggered his interest in cancer; his favourite teacher died of it. At 18, he left Delhi, initially to do an undergraduate degree at Stanford. He returned to do research at Harvard Medical School after
Oxford.
|
|
On Record
Before joining the caravan in Teheran, Pandey shared the rationale behind the initiative with The Tribune in Lucknow. Excerpts: Q: What is the idea behind the caravan? A: A young Gandhian activist from Mumbai, Feroze Mithiborwala, conceived of this caravan. With institutional support provided by New Trade Union Initiatives, he was able to give it a practical shape. A forum called Indian Lifeline to Gaza was created to organise this caravan and an Asian People’s Solidarity for Palestine was formed to bring together all organisations from countries of Asia like Japan, Malaysia, Indonesia, India, Iran, Pakistan, Afghanistan, Iraq, Bahrain, Azerbaijan, Tajikistan, Turkey, Syria, Jordan, Lebanon and Egypt which support the Palestinian cause. Q: Why did you think of such an initiative? A: The Palestinians’ struggle is the most difficult one. They are not only homeless in their own homes but are subjected to continuous humiliation. As the symbol of democracy it was felt that India, more than the US, where marginalised groups have found a political voice, should be the champion of all struggles for establishing democracy and human rights. Q: Who are the Indian members of the caravan? A: The Indian delegation mostly consists of activists of people’s movements and trade unions, journalists, students and representatives of minority communities. Q: Why did you plan to take the rather hazardous land route passing through so many nations? A: For strategic reasons. While we know of the many peace and human rights initiative in Europe and the US, we Indians have little information and even less networking with the many groups working for human rights and the Palestinian cause in these Asian countries. So the decision to travel by the land route was taken to reach out and develop bonds with many such organisations in these countries so that a popular movement in support to lift the Gaza blockade could be galvanised. Q: What kind of response did this initiative receive? A: The response received was overwhelming. Activists from India, Iran and Japan are part of the caravan from New Delhi and others are joining en-route. The embassies of Iran and Egypt, as a gesture of support, have decided to waive the fee of Rs 800 and Rs 3500, respectively, required for obtaining visas for about 45 Indian activists in this caravan. Q: What about the Indian government’s response? A: Congress leaders like Digvijay Singh and Mani Shankar Aiyar flagged off the India delegation from Rajghat on December 2, 2010. Present on that occasion were Planning Commission Member Syeda Hameed and National Advisory Council Member Harsh Mander. Q: What is the kind of problems that you are expecting to encounter en route? A: The caravan met its first obstacle at the very first border it had to cross. Pakistan denied them visas on December 1. But after the local press lashed out at it for having denied visas to an India peace delegation headed for Palestine, they gave visas to 34 members of the delegation after its flag off. On December 4th morning, the India government denied permission to this group to cross the Wagha border on foot. The caravan was held up for 24 hours. Pakistan was reluctant to permit the Indian group because the route to Iran passes through Balochistan where it claims that the movement for autonomy is being fuelled by India. So, the Indian contingent was left with no choice but to return from Pakistan and is to fly to Tehran along with the rest of the group that has been denied visa by Pakistan.
|
|
|
|
| HOME PAGE | |
Punjab | Haryana | Jammu & Kashmir |
Himachal Pradesh | Regional Briefs |
Nation | Opinions | | Business | Sports | World | Letters | Chandigarh | Ludhiana | Delhi | | Calendar | Weather | Archive | Subscribe | Suggestion | E-mail | |
Rising India’s recent journey often conforms to the computational “complexity theory” which is characterised by “a chaos of behaviours in which the components of the system never quite lock into place, yet never quite dissolve into turbulence either.” Chaos and order are considered polar opposites. But India has demonstrated that order and chaos are like two sides of the same coin. It is not for nothing that India has been described variously as “functioning anarchy”, “amiable chaos” and a land of “million mutinies”.
A few years ago, an oncologist stood outside the children’s cancer ward at New Delhi’s All India Institute of Medical Sciences. He watched them learn mathematics, Hindi and English in a tent set up by an NGO that provided support to children suffering from cancer and their families.
Magsaysay award winner Dr Sandeep Pandey is part of the Asia to Gaza caravan that is taking the land route passing through seven nations in South Asia, the Persian Gulf, West Asia and North Africa to express solidarity with the Palestinian cause. As part of the international effort to break the three-year-old blockade of Gaza by Israeli forces, the caravan reached Gaza on December 27 to coincide with the third anniversary of the beginning of the blockade.