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One rank,
one pension Closure of
children's homes |
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When
Vajpayee took the bus to Lahore
From
spring to autumn of life
Repairing
a broken justice system
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Closure of children's homes Scores
of children's homes grow unmonitored on huge donations received by exploiting the compassion of donors, especially from foreign lands. Then, the agencies that are supposed to check the proper functioning of children's homes remain dormant till some scandal breaks out or drastic measures are announced by a higher agency. On both counts children turn out to be the sufferers. About 500 children in Himachal Pradesh have become victims of administrative apathy. The Directorate of Women and Child Development has ordered the closure of 23 homes for their failure to register under the Juvenile Justice Act (JJA). The horror of tales of sleaze unearthed at Apna Ghar, Rohtak, in 2012 had triggered a wake-up call for a legal monitoring of children's homes. The Supreme Court directed all states and UTs to submit a status report on the children's homes within eight weeks on December 16, 2013, failing which they could be made liable for contempt. In haste, state governments declared the closure of the homes which failed to register under the new guidelines. The JJA has been in force for 13 long years. The Himachal government will punish the defaulters without being accountable for its own slumber of 13 years. And children will bear the collateral damage. Since the future and aspirations of a large number of children are involved, the Directorate should have proactively persuaded and guided the children's homes to register, or in case of a failure, should have thought of a contingency plan. Some homes have children above 18 and run hostels and educational institutions. Hence, these cannot be registered under the JJA. Some way could have been found if the government officials were sincere in helping the children and their shelter homes. Framing laws alone cannot solve human problems, which demand empathy. The Directorate too should be held accountable for putting the lives of 500 children in jeopardy.
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I have had more trouble with myself than with any other man. — Dwight L. Moody
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The police and the panic
AFTER the panic created by the banking crisis the Punjab is passing through another panic. This second panic is the result of the failure of the police to deal effectively with raids and dacoities of the last two months. News is now coming from every part of the Province, from Native States as well as from British districts, that the criminal population has been a source of great terror to the law-aiding subjects of His Majesty. The incapacity of the police in some of the districts in bringing the offenders to book has encouraged local badmashes to imitate professional dacoits. The panic has spread from the districts to the metropolis and it is unreasonable to blame the people as the local police seem inclined to do for distrusting the degree of protection they can expect. The present anxiety is the result of the occurrence of burglaries in quick succession in the crowded parts of the city. The police officers have a temptation to judge existing conditions exclusively from the number of reported cases and to estimate a possible development from the statistics of the past. However suited such a course be for official statistical purposes it can hardly be contended that it is also helpful for preventive purposes or for purposes of creating public confidence as to the extent of police protection that can be depended upon.
Concession rates for fodder
THE following Press Memo. has been issued by the Punjab Government: On the recommendation of the Government of the Punjab the Government of India have sanctioned with effect from 19th February 1914 and until further orders, the introduction of concession rates for the carriage of fodder, in the case of all consignments of fodder, excepting fodder for the Army Department, booked to the Bhiwani, Bawani, Khera, Hansi, Satred, Hissar, Jakhod Khera and Adampur stations in the Hissar District and the Jharli and Kosli stations in the Rohtak District from any station on the North-Western Railway. These rates will be six pies per four wheeled, nine pies per six wheeled and one anna per bogie wagon per mile.
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When Vajpayee took the bus to Lahore I was one of those who rode the bus. It was an exhilarating experience, pregnant with optimism. At least, I felt that the journey of a few kilometres from Attari to Wagah border would not be a long travel to bring New Delhi and Islamabad nearer. Unfortunately, this did not happen -— not because the Prime Ministers of the two countries differed but because the military in Pakistan was against the rapprochement. It was apparent when the three services chiefs of Pakistan refused to salute the Indian Prime Minister. Gen Pervez Musharraf, the then army chief, had different ideas. His subsequent coup to oust the elected Prime Minister bared his ambition. The bus journey was a courageous step by Vajpayee because his Bharatiya Janata Party was anti-Pakistan and pursued Hindu nationalism as its sole agenda. Vajpayee went to the extent of having a timeframe within which the Kashmir problem was to be solved. He had probably in mind what a chastened Zuflikar Ali Bhutto, former Prime Minister of Pakistan, had told me in a recorded interview after the liberation of Bangladesh. Bhutto had said: “We can make the ceasefire line a line of peace and let people come and go between the two Kashmirs. After all, why should they suffer? Let there be some free movement between them. Then one thing can lead to another. After all, simultaneously we hope that there will be exchanges of visits, of officials and non-officials.” Bhutto denied having said the “line of peace” when New Delhi took it up with him officially. I wish that the Lahore Declaration to normalise trade and travel could be implemented even now. What the two Prime Ministers achieved may seem very little in concrete terms, particularly when Pakistan weighed everything on the scales of Kashmir. Even there Vajpayee said, at least three times during his visit, that the problem of Jammu and Kashmir had yet to be settled and that the two sides would continue to have talks until they resolved it. In other words, Vajpayee conceded that it was a dispute. The fact that he did not mention that Kashmir was an integral part of India during his visit was something which the Pakistanis should have noticed. Coming back to the bus journey, I was one of the 22 “eminent” people travelling to Pakistan on a mission to retrieve soiled relations. Punjab Chief Minister Parkash Singh Badal joined us at Amritsar airport. He hugged me and said: “Your efforts are bearing fruit.” Indeed, he was referring to our lighting of candles at the Wagah border since 1996 — to send a message of friendship to the other side. Badal disappeared in the crowd of tall, turbaned Sikhs awaiting Vajpayee's arrival. But some of us moved towards the bus, standing lonely near the tarmac. The flags of India and Pakistan were painted on its body. Thank God, there was no slogan, which would have spoilt the bluish colour that stood out in the afternoon sunlight. Dancing and singing men and women in colourful costumes provided an ideal backdrop. Policemen looked out of place, even though they were not many. As soon as Vajpayee sat in the front seat, the bus began its journey to Lahore. A ticket collector first gave me a ticket and then tore half of it, which I retain as a souvenir. Another attendant offered cold drinks. The TV and mobile telephones were there — all part of service as it would be at the time of regular trips. Right up to the border, a distance of 35 kilometres, people were lined up on both sides. Children waving yellow flags and bands playing loud tunes reflected the enthusiasm that the meeting between the Prime Ministers of India and Pakistan had generated. The mood in the bus was relaxed. But very few exchanged words with one another. A feeling of expectancy hung in the air. Some nervousness was visible and it got heightened with every kilometre-stone going past. How will the visit go was the thought writ large on everyone’s face. Still they were conscious of the history they were making. “It was a bold step,” I remarked when I sat next to the Prime Minister briefly. He only smiled. I persisted with my questions. “What made you respond to Nawaz Sharif's off-the-cuff remark to take a ride on the bus? What about your party, the BJP?” He said: “I thought, let me do something to be remembered. After all, the Prime Ministership does not last long.” And then he mentioned the killing of Hindus at Rajouri. He was disturbed. “Certain elements always do it to sabotage the talks.” I wanted to talk to him further but there was a long queue. There was the usual guard of honour, a large contingent of policemen on the other side. The guard of honour is a beaten path, covered again and again even after 66 years after British rule. The mood of abandon on the Indian side changed into somberness. Pakistan Rangers stood rows upon rows to attention. There was silence and the air was heavy. Nawaz Sharif's smiling face broke the monotony. Some of his colleagues, dressed in achkan, too were a relief. “Kush Aamdeen” (welcome) to Pakistan,” were the first words Nawaz Sharif spoke before he embraced Vajpayee. Pakistan ministers also lined up to shake hands with Vajpayee. People had lined up both sides of the road leading to Lahore. There were women without the veil and many friendly hands waved towards us. I wish that their expectations had been met. When the two Prime Ministers met, I also thought that the impasse between the two countries would be over. But it did not happen. There were too many vested interests and unseen elements coming in the way. No doubt, they have really missed the bus.
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From spring to autumn of life While I counted the wrinkles on her face, she gave me a recount of how, standing in the parapet of life, she savored the fountain of youth. I enjoy her company probably because the opposites attract. The more she looked older to me the more I felt younger. After all I had to come to term with my process of aging too. I am at a stage where each birthday reminds me of the dreadful — the ultimate wrinkles. Definitely after a few such birthdays, you stop taking note, like our parents, who seem to have aged gracefully. The fear of the first wrinkle is equivalent to the fear of death and the only similarity is the finality of the two. Ultimately, I had to make a deal with the thought. I had to study the accounts of life. Yes, the profit and loss equation. What was I going to lose? Is it youthful energy? Or the allegedly essential looks of admiration from others that we all
secretly enjoy? When in school, I had cut a trendy flick of the same length as the most beautiful head-girl had. She prowled the school campus only to be followed by a battalion of cute boys. The mirror was my best friend. What now is swag was cool then. There were times when I missed parties and raised a hue and cry for not having agreeable clothes to wear. There were times when I rushed to my room to fetch sufficiently satisfactory clothes when there was a visitor. There were times when I gave too much care and attention to my outfit before stepping out of my house or the being-yourself boundary. I almost don’t remember when Gucci, D & G and Nike left my puny fleet shoes behind in the competitive race. The question which hits me in the face is: Is it worth giving undue importance to the exterior? We give little care to the discoveries of our inner world. The meditation and music of our soul keep us living and breathing. It is utter beatitude when the rain of intimacy descends and the flowers of relations bloom. We must look into the wishing well often and wish for goodness and happiness. We must finish the castles which we left un-built. We must spare time for inner growth and satisfaction. The show of affluence on the stage of life will only win us a prize for an excellent display of hollowness. In the sea-saw of life one can never be on the up and up. My grandmother often smiles, probably in self-contentment, and I gaze at her face only to realise that a smile has never made a face glow as much as a wrinkled one. Awed, I wonder: “Who is more beautiful — is it me or is it she?”
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Repairing a broken justice system The
Supreme Court in Kishanbhai (2014) observed that “every acquittal should be understood as a failure of the justice delivery system....” The court was concerned with a Gujarat case of rape and murder going unpunished. Some may say that if a person is acquitted after a fair trial, cause of justice is actually advanced, not the other way around. Perhaps reference was to those cases where the prosecution failed to prove its case beyond reasonable doubt, on account of sloppy investigation, failure to collect vital evidence or witnesses being won over. Such cases are indeed worrying and can be termed as failure of the justice delivery system. Accountability for failure must be fixed on the concerned investigator or prosecutor. Unless the criminal justice system produces quick convictions in a significantly large number of cases, say in four out of five, it shall be perceived by the general public as flawed, broken, ineffective. The recent opinion of the Supreme Court in Kishanbhai (2014) shows the anguish of the highest court of the land, when the person charged with rape and murder was acquitted on appeal. It was a case of 2003, a six-year-old girl was abducted. Later her body was found with ante-mortem injuries on the head, both legs had been amputated near the ankles and her anklets had been removed. There were injuries on her vagina but these were post-mortem. K was charged with rape and murder. The prosecution produced no eyewitnesses. K was convicted on the basis of circumstantial evidence and sentenced to death. The Gujarat High Court declined to confirm the death sentence and he was given the benefit of the doubt and acquitted. The state unsuccessfully appealed, the High Court judgment was affirmed by the Supreme Court a few weeks ago. Court ‘heartbroken’ While dismissing the state appeal, the Supreme Court felt “crestfallen, heartbroken and sorrowful” and went on to give some directions: “...that on the completion of investigation in a criminal case, the prosecution agency should apply its independent mind, and require all shortcomings to be rectified, if necessary, by requiring further investigation. It should also be ensured that the evidence gathered during investigation is truly and faithfully utilised by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case”. “In furtherance of the above purpose it is considered essential to direct the Home Department of every state to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A standing committee of senior officers of the police and prosecution departments should be vested with aforesaid responsibility”, it stated. All states take acquittals very seriously but no state has empowered the prosecutors, equipped them to take independent decisions. We are running a police-dominated system of prosecution, a pre-1947 practice, even though accused have rights under the Constitution. Prosecutors must ensure that every accused person gets a fair, impartial and speedy trial. They must uphold the right that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Worldwide there has been tremendous improvement in the prosecution of criminal cases. The main thrust of criminal justice reform has been in the area of prosecution. Investigators play a secondary role. Prosecutors actively participate in the investigation. They lay down guidelines and give directions to investigators regarding the line of investigation to be taken. But in India there is a marked reluctance to reform, standing committees suggested by the apex court may not be able to bring about changes, if they are police dominated. Law commission take Way back in 1958, the First Law Commission under MC Setalvad observed that “Police exercised too much control over the prosecution despite the latter being organically linked but theoretically independent of the former. Police did not have the legal know-how to conduct prosecution and did not possess the high degree of objectivity and detachment necessary for a prosecutor. The high degree of subjectivity and attachment of the police with the case implied that the prosecutor will be more biased towards securing conviction.” The above sentiments were also shared by the 14th Law Commission (1996) but the Fourth Police Commission and the Malimath Commission (2003) made police-centric recommendations. There already exist procedures through which acquittals are examined by senior officers but conviction rates are still low. Kishanbhai directions indirectly recognise that prosecutions weaken or fail during investigation itself. Therefore, investigations should be strengthened through greater early involvement of prosecutors in the investigative process. Strong, well-trained, independent prosecutors working in a well-coordinated manner with the investigators shall definitely take the correct prosecutorial decisions regarding whom to prosecute for which offence. Thus serving the greater cause of criminal justice and strongly enforcing the rule of law. Taking action against investigators and prosecutors after the acquittal has been recorded is like closing the stable doors after the horses have bolted. A detailed study was recently conducted by a task force of the Punjab Governance Reforms Commission. Details of all trials concluded in a session’s division in 2011 and 2012 were gathered from the Public Prosecutor and the performance of eight criminal trial courts in 2012 was analysed. The object was to see the speed at which trials were concluded and the outcome of the cases. Conviction to acquittal ratios and the conviction rates were also worked out. The conviction rate was healthy, varying between 40 per cent and 82 per cent. However, the study revealed that the speed at which trials were conducted was extremely slow. The overall average time taken was between 63 weeks and 239 weeks. In six courts, more than 3/4th of the court time was taken up by the prosecution and in some courts this period was upwards of 4/5th. Had prosecution been quicker in leading its evidence, the trials would have concluded much sooner. Reforms slow The overall average time taken for recording prosecution evidence was between 55 and 187 weeks. If the prosecution sought no adjournments and produced its entire evidence together on the first day, trials can be completed within two or three weeks. This is not a difficult target. But it would be unfair to blame the system, which acquits accused, for encouraging crime, emboldening law breakers and spreading insecurity. If the trials are quick and the conviction rate is high, acquittals will not have the demoralising effect. The task group examined all aspects of prosecution functioning. Its report gives a background to criminal procedures, examines the views of various commissions, and also describes briefly the role of prosecutors in the US, England and Wales, Australia, Pakistan (Punjab), France and Germany and then revisits prosecution functioning in Punjab, and suggests a way forward. The report contains many recommendations for reform. It has emphasised that prosecution needs to be strengthened by improving working conditions of the prosecutors, paying them higher emoluments, and providing them with laptop or computers with Internet connectivity. Prosecutors should be as well equipped as defence counsel. The department head should be a Prosecutor-General, of a rank equal to the Chief Secretary, who reports directly to the Advocate-General. In the trial courts, prosecutors should hold the same rank and enjoy equivalence of pay with the trial judges before whom they appear. Their powers and functions should be clearly defined as required by Section 25A (7), CrPC. This can best be done by enacting a prosecution services Act on the lines of similar legislations in England, Australia and Punjab (Pakistan). All differences of opinion between the investigator and the prosecutor should be resolved by referring the matter to the Public Prosecutor whose decision should be final or to a committee consisting of the Public Prosecutor, District Magistrate and SSP. At the state level, criminal justice monitoring board should be set up to track all ongoing investigations and prosecutions. The board should publish annual reports, release monthly data of investigations and prosecutions, identify bottlenecks, and suggest remedial actions. It should circulate lessons learnt from court decisions to all investigators and prosecutors. There is need to develop a prosecution policy, a sentencing policy and a forensic policy. A standard operating procedure [SOP] should be drafted to coordinate the powers, functions and duties of investigators and prosecutors, giving primacy to prosecutors to take prosecutorial decisions. The board should also plan and execute training modules for investigators and prosecutors to provide continued legal education for in-service candidates. More accountability Prosecutors should have a duty to disclose any material which may assist the accused. All decision-making processes should be properly documented giving detailed reasons why a particular decision to prosecute or not to prosecute was taken in a particular case. Accountability should be enforced against investigators and prosecutors and misconduct should be severely punished. A code of ethics should be enacted based on Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors adopted by the International Association of Prosecutors (1999). Many important prosecutorial decisions are taken by the prosecutors, upon which depends the fate of the case. Kishanbhai also contains directions regarding the role of prosecutors. They primarily decide, on the basis of evidence collected, who should be prosecuted for which offence. They may conclude that no public interest will be served by launching prosecution, and may decide to withdraw the case. Prosecutorial decision-making concerns decisions based on investigation conducted by the police to determine the crime and who committed it. This decision should be taken by the prosecutor in coordination with the investigator. Professionally trained prosecutors should be able to get convictions in a significantly higher number of cases. The apex court observed that an acquittal means that either investigation or prosecution was badly conducted or an innocent person was sent up to face trial. This must be addressed lest coming generations blame us for doing too little to enforce law. — The writer is a retired judge, Punjab and Haryana High Court.
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FIFTEEN years ago in February 1999, Atal Behari Vajpayee, the then Prime Minister, took a bus to Lahore to normalise relations with Pakistan. Nawaz Sharif was Pakistan's Prime Minister. They jointly issued the Lahore Declaration, which adumbrated several steps to overcome the differences that had yawned the distance between the two countries.
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