The Tribune, Chandigarh, India

	Booking tainted babus Consensus on their inclusion in Lokpal Bill welcome THE joint drafting committee on the Lokpal Bill has rightly evolved a consensus on bringing the IAS, IPS and other civil services officers within the ambit of the Lokpal Bill. This is a refreshing development because corrupt bureaucrats have been getting away all along by twisting laws and subverting the system. It is noteworthy that the committee has decided to review the laws that have drawn flak for shielding corrupt bureaucrats. As a first step, once the Lokpal Bill is duly enacted by Parliament, the Lokpal may not need the Centre’s prior permission for prosecution of a bureaucrat of and above the rank of a Joint Secretary to the government. Significantly, the drafting committee has decided to examine in this context amendments to Section 19 of the Prevention of Corruption Act, Section 197 of the Code of Criminal Procedure and Section 6A of the Delhi Special Police Establishment Act (DSPEA). Under the DSPEA, the CBI cannot prosecute an official in a corruption case without the Centre’s sanction. Corruption in administration has increased so much that it must be tackled on a war footing. If the latest proposal is pursued to its logical conclusion, as many as 300 corrupt bureaucrats could face speedy prosecution. And this will, certainly, make a lot of difference to the quality of administration and governance. However, the powers that be should tread with caution and utmost circumspection so that the roles, powers and functions of existing institutions like the Central Vigilance Commissioner and the CBI do not clash and/or overlap with those of the Lokpal. The higher judiciary’s role in the new Lokpal regime should also be properly defined. While the Centre is yet to take a stand on this issue, the civil society activists have reportedly extended an “olive branch” to the government by maintaining that all judicial-related matters will be referred to a seven-member Lokpal Bench first. Another issue of consideration is the repeal of Article 311 of the Constitution which has protected the corrupt and non-performing civil servants from punishment. Because of the safeguards in this Article, most cases go in favour of the delinquent civil servants. True, it was amended in 1976, permitting a penalty to be imposed on the basis of evidence. However, even in the amended form, the safeguards tend to protract the proceedings indefinitely. If a Committee of Secretaries will have to inquire into the charges of corruption against a Secretary first before his prosecution, it must be given a timeframe to complete the inquiry so as to facilitate expeditious prosecution.
	Celebrating Tagore His genius will not be lost in translation Rabindranath Tagore (1861-1941) was a true renaissance man — multifaceted; dreamer, thinker, and a doer. No other person could bring such recognition to Indian culture in its entirety, as he did. He was at home in the world, without losing his unique Indianness. After 150 years of his birth, if his poetic renderings are used by young men to woo their lasses, by grieving souls to get over loss of life, and by politicians in campaign speeches, his thoughts on education, nationalism and women’s emancipation turn out to be prescient. Even while the world around him was engaged in fierce battles of national freedom, he understood the folly of extreme nationalism. To him cultures changed along the flow of river, they need not be restricted within the boundaries of barbed wires. As democracies mature and humanity evolves, a realisation dawns that his verses express a universal aspiration, which is not only utopian. The world is gradually inching towards a reality,“ Where the mind is without fear and the head is held high; Where knowledge is free; Where the world has not been broken up into fragments by narrow domestic walls; Where words come out from the depth of truth; Where tireless striving stretches its arms towards perfection…” Tagore was a visionary who could foresee the relevance of translations in a world where ideas need to flow freely. By translating Geetanjali into English, he gave the world the benefit of reading a mystic’s perspective on life which reflects beauty, love and compassion. He was the first one to introduce the saint poet Kabeer to the English speaking world by translating his poetry. On his 150th birth anniversary, the government would pay a befitting tribute to this poet laureate by promoting this much neglected aspect of our cultural ecology. The exhaustive body of his works need to be understood with the help of quality translations. Because those who do not understand Bengali and are deprived of a song like jodi tor dak sune keo na ase… fail to know what it feels to be led through the journey of life by such power of words that can take away weariness. And make one smile through all the seasons of life.
	Thought for the Day Instruction ends in the school-room, but education ends only with life. — Frederick W. Robertson
	Corrections and clarifications A 'z' has crept in at the end of the first para of the edit "No winners in pilots' strike" (Page 8, May 9) and also in the middle of the word "uncomfortable" (it has appeared as 'uncomforztable') in para two of the same edit. In the report "Combine harvesters from Punjab much in demand in Jammu" (Page 6, May 7) in second para instead of 'threshing' of wheat crop the word used is 'thrashing'. In the middle "If Osama was hold up here" (Page 8, May 6) the third para from the bottom has in italics "Obamaji aap sangharsh karo…." It should have been 'Osamaji' instead. The same day in the third letter "Osama" has been mistakenly mentioned as "Obama". Despite our earnest endeavour to keep The Tribune error-free, some errors do creep in at times. We are always eager to correct them. This column appears twice a week — every Tuesday and Friday. We request our readers to write or e-mail to us whenever they find any error. Readers in such cases can write to Mr Kamlendra Kanwar, Senior Associate Editor, The Tribune, Chandigarh, with the word “Corrections” on the envelope. His e-mail ID is kanwar@tribunemail.com. Raj Chengappa Editor-in-Chief

ARTICLE

Death of Osama bin Laden
The lessons to learn for India
by T.V. Rajeswar

Osama bin Laden’s end at the hands of the Special Forces of the United States in his hideout near Abbottabad in Pakistan has several lessons to learn for India.

Al-Qaida’s carefully planned operations leading to the attack on the World Trade Centre on September 11, 2001, resulting in the death of over 3000 persons, as also targeting of the Pentagon on the same day were the main events for which Osama’s terrorist outfit is remembered. The attack on the World Trade Centre was a shocking experience to the American people and the US establishment alike.

Since then the US had been working out ways and means of hunting down Osama. The Tora Bora mountain area between Afghanistan and Pakistan had been intensely bombed. There was no trace of Osama, and there were many theories of his escape to Afghanistan or beyond. In the nationwide broadcast of Obama on May 2, President Barack Obama told the Americans and others that soon after he assumed office he had directed intensification of the efforts to trace Osama and bring him to justice. CIA chief Leon Panetta intensified his efforts and eventually zeroed in on his whereabouts in the outskirts of Abbottabad , the garrison town of Pakistan, not far from Islamabad. The hideout of Osama was a specially constructed building with tall walls. It had no telephone or Internet connection.

Osama had a couple of couriers through whom he maintained links with the outside world. With the special forces stationed in Pakistan and the drones which operated from there, full coverage of the hideout of Osama was available. The strike was planned between the midnight and 3 a.m. on May 2, and two helicopters with special naval forces called Seals were dispatched and they completed the operations within 40 minutes. Osama himself was shot dead when he reportedly opened fire on the US forces.

As for the lessons to be learnt from the American operations leading to the death of Osama bin Laden, the most important one is to have a clear policy as to how to deal with the principal accused in the concerned case; how to deal with him or them.

But is India in a position to carry out an operation of this type? The answer is regrettably in the negative. India has been the victim of a series of attacks by terrorists and jihadi elements over the years. Among such incidents were the serial blasts carried out in Mumbai in 1993 by the henchmen of Dawood Ibrahim. These attacks were said to be in retaliation for the demolition of Babri Masjid in December 1992, and the entire operation in Mumbai was carried out under the direction of the ISI of Pakistan.

Dawood Ibrahim is known to be living in his own palatial quarters in Karachi, which is very much within the knowledge of Pakistan. He frequently visits Dubai and his name is also there on the list of international terrorists put out by the US. To the several demands over the years by India, Pakistan has blandly asserted that Dawood Ibrahim did not live in that country, and India had done nothing beyond making appeals. In a situation like this, what would be the reaction of a country like Israel if it were faced with a similar predicament? It would have sent out an expeditionary force by helicopter or any other means and nabbed or eliminated him.

The next case to be analysed was the attack on Parliament in 2001 by the Jaish-e-Mohammed, founded by Masood Azhar. In December 2001, the Parliament building was attacked resulting in the death of some security men. Among those who were arrested and prosecuted were Afzal Guru, whose death sentence was confirmed by the Supreme Court. His execution is pending since his mercy petition to the President of India remains undisposed of. Apart from this, the A.B. Vajpayee government massed troops in the Northern Command in a show of force to Pakistan. It gave the impression that a limited attack against Pakistan as a punitive measure was imminent. However, international pressure came forth, resulting in the return of the amassed troops to their normal locations. Masood Azhar remains active in Pakistan and there is nothing India can do about it.

The attack on Mumbai on Nov 26, 2008, by LeT terrorists was the most serious of them all. Nearly 300 people were killed in this carefully planned attack by the LeT jihadis under the overall direction of the ISI. The evidence provided by David Headley and Tahawwur Hussain Rana regarding the role of ISI in the attack on Mumbai has been recorded in a Chicago court in the US. Subsequently, the US included the ISI among the terrorist groups operating from Pakistan.

Ajmal Kasab, one of the Mumbai attackers captured alive, was sentenced to death by a Mumbai court after due trial. Several dossiers have been passed on to Pakistan on the case and full evidence had been provided regarding the role played by the ISI . US prosecutors had charged four Pakistanis, including Major Iqbal of the ISI, in connection with the Mumbai terrorist carnage. This list includes ISI commando Ilyas Kashmiri, a retired Pakistan military man, Abdur Rahman, Hashim Sayed and Tahawwur Hussain Rana.

LeT founder Hafiz Saeed remains active in Pakistan. At the last Kashmir Solidarity Day function, an annual feature in Pakistan, Hafiz Saeed spoke in favour of an all-out war against India over Kashmir. He said if even nuclear weapons should be used against India. Saeed has a big establishment at Muridke, on the outskirts of Lahore. In a situation like this, where Pakistan has taken no action against Saeed and other LeT activists who had played active role in the 26/11 attack on Mumbai, does India have any other option apart from pressing for action during periodical meetings between the Secretaries of India and Pakistan and exchange of correspondence between the Foreign Ministers? The answer is regrettably in the negative.

Around 2005, Osama Bin Laden had his mansion constructed on the outskirts of Abbottabad with 18 ft. high walls, and he had prohibited telephone and Internet connections. It is difficult to believe that the Pakistan Army and its ISI did not know of Osama’s hideout in this palatial house during the past five years. The CIA chief said that it was difficult to believe that Osama did not have a supporting system during these five years and that Pakistan was not aware of the same. Pakistan was, therefore, not kept in the loop by the US when Operation Geronimo, as the Osama operation was called, was put into motion. Pakistan was informed only after the operation was over. President Asif Zardari and Prime Minister Yousuf Raza Gilani of Pakistan have since asserted that they did not know where Osama was living.

Taking into account all these factors, the Indian political establishment as well as the security agencies should revise their thinking and be realistic about facing problems which may emerge in the future with Pakistan.

Pakistan continues to assert that Kashmir remains the main problem between India and Pakistan. Pakistan Army chief Gen Ashfaq Kayani has gone on record that his approach remains India-centric.

India should be realistic enough to understand that more attacks like the one on 26/11 on Mumbai by jihadi elements under the guidance of the ISI cannot be ruled out, and India should take all steps to anticipate them and take adequate preventive measures.

The writer, a former Governor of UP and West Bengal, was the chief of the Intelligence Bureau.

MIDDLE

On writing a bestseller
by Harish Dhillon

I write with a fair amount of regularity. But what I write has always been modestly successful and never been worthy of making it to the bestseller list. But my deep and abiding awareness of my severe limitations as a writer has not prevented me from having an occasional and fierce desire of wanting to write a bestseller. During one of these delusions of grandeur, I hit upon what I felt was a surefire formula for a bestseller. I roped in two of my colleagues and they too were enthused by the project.

We first found a Barbara Cartland novel which had had about three dozen reprints. It was one of the standard Barbara Cartland romances about a tall dark and handsome hero from an aristocratic family and the beautiful, naïve daughter of a tenant farmer. The romance went through the usual ups and downs but true love finally triumphed. We took the basic plot and, in what we considered a highly creative set of meetings, transposed it to an Indian setting, with the dark hero becoming fair and other such suitable transformations. We added episodes of violence and sex which we thought are mandatory for a bestseller. Then we parcelled out the chapters between us and got down to the serious matter of writing. We would meet after each chapter had been written and try to bring some uniformity to the style. Looking back I think we succeeded admirably.

Once we had a complete manuscript we persuaded another colleague, from the Hindi Department, to translate the manuscript into Hindi. Of course, everything was official and an agreement had been drawn up and signed in which each of us would have a 25 per cent share in the millions that would accrue to us by way of royalty.

We found a publisher. Our translator colleague made a trip to Lucknow to negotiate the terms and sign the agreement. Of course, the fact that the book had been published under a pseudonym took some of the gloss off our achievement.

We waited with bated breath: we did not have long to wait. By the end of the year the book had had five reprints, had been translated into Urdu and the film rights had been sold. Our millions came in the shape of a cheque for the princely sum of Rs 7,857: the publisher claimed that each print order had been of a hundred copies and that according to the contract the translation and film rights had been made over to the publisher in return for his agreeing to publish the novel!

We knew that our translator colleague had stolen from us, but then in a sense, the entire venture had originated in a theft. I have never again made a deliberate attempt at writing a bestseller but that doesn’t keep me from hoping, once in a while, for the miracle that will transform one of my modest attempts at writing into one.

OPED — LAW

Quotas for inclusive social order
The issue of reservation refuses to die down. It has always been a challenge for the authorities to reconcile the notion of quota with that of equality when seemingly the former militates against the latter
Virendra Kumar

WATCHDOG OF THE CONSTITUTION: The Supreme Court of India. Tribune photo: Mukesh Aggrawal

Often we witness convulsions in our body politic, which are indeed the outward symptoms of some brewing, real or perceived, sense of social injustice from within. There has been distressing disquiet on the issue of reservations. In 1990, there was relatively a prolonged spell of protests and agitations on the implementation of the Mandal Commission Report that affirmed the initiation of affirmative action under the Indian law. The precipitant forms of those protests were bandhs (a version of a strike), hartals (a version of a municipal shutdown), and dharnas (a version of swarming). The issue involved was the seat reservations and quotas in government services and educational institutions for people who were “socially and educationally backward” to redress caste discrimination.

After a lull, the situation became explosive when the Central Educational Institutions (Reservation in Admission) Act of 2006 (No.5 of 2007) was enacted in pursuance of the Constitution (Ninety-third Amendment) Act, 2005. Through this law 15 per cent reservation of seats in central educational institutions was sought for the Scheduled Castes, 7.5 per cent for the Scheduled Tribes, and 27 per cent for the OBCs, which have been defined as Socially and Educationally Backward Classes (SEBCs) of citizens.

Emotive issue

In this respect, when the medical services were paralysed by the striking medical doctors in premier medical institutions, particularly those located in New Delhi, the modicum of law and order was restored only with the Supreme Court’s intervention. Alongside, since the emotive issue of reservation impinged upon the interest of the millions of citizens, for its faster resolution, the Supreme Court clubbed all the writ petitions challenging the validity of the reservation law before the different Benches into one case, Ashok Kumar Thakur, to be considered by the Constitution Bench led by the Chief Justice of India.

Most recently, the Jat community mainly from Haryana, Rajasthan and parts of Uttar Pradesh have held protests for the inclusion of their castes within the ambit of OBCs for quotas in Central government jobs. When the protests turned violent causing loss to private and public property, and disrupted the free flow of essential goods of life, the Supreme Court intervened and directed the state governments to take suitable steps to ensure that the supply and transportation of essential commodities, including milk, food and fuel from one place to another was not affected.

Later, a Division Bench of the Punjab and Haryana High Court comprising Chief Justice Ranjan Gogoi and Justice Kanwaljit Singh Ahluwalia directed the Jat leaders to desist from disrupting movement of trains. For due compliance of their order, the Bench directed the concerned Deputy Commissioners to serve a copy of the directions to the leaders concerned.

One might construe such judicial interventions into the affairs of the state as acts of judicial activism. However, despite the separation of powers, the judiciary is obligated to review the acts of commissions and omissions of the executive and the legislature, apart from its own, on the touchstone of the Constitution. In the instant case, when the executive failed to restore train traffic for days, the judiciary had to step in.

What did the Punjab and Haryana High Court do? Did it deny the right of the agitators to protest? Did it question the legitimacy of the protestors’ claim? And did it devalue the concept of reservation? Nothing of this sort was done. Instead, it took the judicial notice of the “large-scale disruption of train movement, including the movement of trains on the Delhi-Chandigarh route” that fall within its territorial jurisdiction.

Resultantly, it observed that “we are of the view that different agitating groups who may have a right to agitate for the redress of their just grievances have to limit the modes of agitation within the parameter of law, without adversely affecting the national interest.” With this prefatory statement, the Judges directed the leaders who were spearheading the present agitation in clear and categorical terms to “exclude the blockades of train from their agitational programme with immediate effect.”

Statute commandment

Lest the court’s directive should be misconstrued as unwarranted intrusion into the territory of the executive, the Judges did remind the government that “since maintenance of law and order is the function of the state,” “primarily” it was their duty and not that of the courts “to handle situations like the present,” and decide “as to how such situations should be best handled.”

Judicial feat has done the job! The order has prompted the Haryana government to set up a three-member Backward Classes Commission headed by Justice K.C. Gupta to consider the legitimacy of the claims to reservations of various segments of society such as Jats, Tyagis, Rors and Bishnois. In fact, the creation of an inclusive social order, envisaging the system of governance in which the people of all segments of society are empowered to get equal opportunity to participate is a constitutional commandment. The Preamble of our Constitution conveys that, alongside justice, liberty and equality, we have promised to secure to all its citizens fraternity, by assuring the dignity of the individual and national unity and integrity.

However, for realising the inclusive social order when the founding fathers of the Constitution juxtaposed the provision of reservation with the principle of equality under Articles 15 and 16, it was a challenge to reconcile the notion of reservation with that of equality when seemingly the former militates against the latter.

The Supreme Court, as the final exponent of the Constitution under Article 141, has finally resolved the seeming contradiction. True, it took quite some time to do this. Jurisprudentially, I do decipher at least four distinct, and yet closely related, phases.

The first phase represents the view when the apex court read the constitutional mandate, say, under clause (4) of Article 16 (that expressly prompts the state to make ‘any special provision for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the state, is not adequately represented in the services under the State’) as an exception to the general principle of equality enshrined in clause (1) of the same article (which proclaims that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office). (See, for instance, M.R. Balaji v. State of Mysore, 1963 Supp. 1 SCR 439 at 455.) The implication of the rule of ‘exception’ is that provision of reservation is to be invoked only restrictively and not as a matter of course because it negates the equality principle.

The second phase comes into picture when attempt is made to regard reservation not as an exception to, but quite independent of, the principle of equality. This view is reflected in the powerful dissenting judgement of Subba Rao, J. in T. Devadasan v. Union of India and Another, 1964(4) SCR 680.

Equality principle

The third phase emerges when social and educational backwardness of the weaker sections of society becomes “one of the forms of classification” for applying the principle of equality under Articles 15 or 16 of the Constitution. This stance is reflected in the exposition made by the Seven- Judge Bench of the Supreme Court in N.M. Thomas case (1976).

The fourth phase represents the complete integration of the policy of reservation with the principle of equality, which operates on the basic premise of ‘likes should be treated alike’. This culmination finds expression when it is held that the provision of reservation under Article 15 is “neither an exception nor a proviso” to the equality principle, but “an instance of classification inherent in clause (1), and an emphatic restatement of the principle implicit in clause (1) of Article 15.”

This position has been clearly articulated by Justice Raveendran in the Five-Judge Bench decision of the Supreme Court in Ashok Kumar Thakur (2008). In effect, for all intents and purposes, what is stated in relation to Article 15 equally applies to Article 16 for comprehending connectivity or integrity between the two conceptions of equality and reservation.

This restatement of the principle of equality assimilating the concept of reservation is conducive to the creation of inclusive social order, because it does neutralise or negate the mindset against the issue of reservation to a great extent. However, with this shift in conceptual basis the taxing task before the commission to be appointed under Article 340 of the Constitution is not over. It is still required to determine the legitimacy of the claims of various agitating caste groups.

Unarguably, caste alone cannot be the basis of reasonable classification for the application of equality principle. That would make India more caste-ridden instead of a casteless society. In this respect, the Gupta panel would do well to remember the functional mode of determining the socially and educationally backward classes of citizens as commended by the nine-Judge Bench of the Supreme Court in Indra Sawhney I (1992).

The writer is Director (Academics), Chandigarh Judicial Academy, Chandigarh. He is a former Professor and Chairman, and UGC Emeritus Fellow, Department of Laws, Panjab University

Tasks before the JUSTICE GUPTA Commission

The Justice K.C. Gupta Commission should identify the castes for conferring reservation benefits not arbitrarily but in a transparent and rational manner, say, after holding public hearings and on the basis of authentic detailed data with regard to their social, educational and economic conditions, collected through elaborate questionnaire prepared by it and the responses received.In terms of judicially approved methodology, the commission may follow the three-step exercise:

Mark out the various occupations, which on the lower level in many cases amongst Hindus would be their caste itself, as in the case of Bhangis (ex-untouchables), Telis, Chamars, etc.

Find out their social acceptability and educational standard. A person carrying on scavenging, for instance, becomes an untouchable, whereas others who are as low in the social strata as untouchables become a depressed class.

Weigh them in the balance of economic condition. The economic criteria or means-test should be applied since poverty is the prime cause of all backwardness, as it generates social and economic backwardness.

The resultant effect would yield the determinant of backwardness requiring the special constitutional protection through reservation. In the application of this criterion, the Supreme Court has, however, cautioned that mere educational or social backwardness is not sufficient as it would unduly enlarge the field, thus frustrating the very purpose of reservation policy meant for weaker sections of society. The backwardness should be “traditional,” that is, owing to the factors of ‘historical discrimination’ over which you do not have any control.

The commission should bear in mind that if a particular caste has been identified as a conglomeration of persons, who could be called ‘socially and educationally backward class of citizens’ on the touchstone of judicially evolved three-step formula, it should still exclude the creamy-layers amongst them, else the very basis of reservation policy would become suspect, and the creation of inclusive social order a distant dream. — Virendra Kumar