The Fact that is 'Torture'

Yesterday was World Torture Day. While there is no need to explain the prevalence of torture in our country, I’d like to use this opportunity to show the attitude of the Courts towards this grave violation. This I’d do by critiquing the case of Masooda Parveen v. Union of India, the judgment which was announced in May this year.

The deceased and husband of the petitioner, Ghulam Mohi-uddin Regoo was one day taken by 17 Jat Regiment soldiers an brutally tortured. The reason that the wife and most witnesses gave was because he had refuse to pay an extortion fee to the soldiers. The petitioner alleged that her husband was tortured to death by the army and later his body was returned in pieces to her. The explanation given by the Army was that he was leading them to a hideout which was blown up the moment he reached there with the soldiers. Surprisingly no soldier was injured by the blast and the only fatality was Ghulam’s death. Ghulam’s wife, Masooda filed a petition before the Court demanding compensation and a job on “compassionate grounds.”

The Army said that Ghulam was a militant so no ordinary law would apply to them in this regard. They went on further to say that since Ghulam was a militant, Masooda would have to suffer for her husband’s wrongdoing. The Army’s rationale was readily accepted by the Supreme Court which stated that since there is ‘no evidence to say that he was not a militant, so he is presumed one’. It indirectly stated that if the Army identifies a person as a militant he is one until proved otherwise. There was no evidence produced by the Army to support this notion and nothing on record about Ghulam’s mode of death. From what I understand, in a petition for habeas corpus, it is upon the state to show that death was incidental and it is all the more onerous on the state to show so. It further stated,

“We are not unmindful of the fact that prompt action by the army in such matters is the key to success and any delay can result in leakage of information which would frustrate the very purpose of the army action.”

So the Court has violated the ruling in Naga People’s Movement v. Union of India, and given an upper hand to the Army to indulge in such nefarious activities. These are troubled times for the judiciary. An organ that is supposed to be a guardian of human rights and injustices disappoints us by relying on irrational convictions. The support of the Army by the judiciary is unprecedented as is evident in this case. The judicial sanction of torture in the name of national security is a pandora’s box in its true sense. Absolute power corrupts, its usage without any checks is the cornerstone of evil. This time Ghulam was picked up and killed, tomorrow its going to be someone else. The matter could have also been simply resolved by given compensation on compassionate grounds and not accepting guilt as asked for by Masooda. But the Army argued otherwise and now a bad precedent has been set. So we should now be prepared for more people to be branded as terrorists by the Army.

This case did not get the publicity that a situation like Jessica Lal got. It is a reflection of what we Indians think of such instances. ‘We don’t care is someone is blown up into pieces. We would like a rapist to get a death sentence. Kashmiris are likely to be terrorists so they deserve it.”

Such notions are bad publicity. Human rights concerns are non existent in a majority of Indians. For them, torture is good if a person is caught. But what if the person might not be a terrorist? I used to admire Dershowitz a lot. Lately he stated something to the effect that torture is good if it produced desired results (don’t know for sure). I am losing faith in the system. There is injustice everywhere. Right from my college to international issues. To what extent can one stand all this is the question? Do I just sit and watch or is there something I can do?

A Diatribe on Patriotism

I realised that the only aspect of patriotism comes out in me when I wish “jai hind” to the security guards in my college. That’s only because they are ex-servicemen and I might require their help sometime in the near future. But apart from that, patriotism has died in me and you know what, I’m proud of it. I go to China and look at an economic marvel and here I am in a land reminiscent of poverty and corruption. Things couldn’t have been worse in this Country. This is as bad if not worse than the ‘Curse of Bambino’ which was apparently spread for the failure of the Red Sox to win a series between 1918- 2004. I make the comparison because we Indians are people of excuses. We need an excuse for failure and will never work upon it to make it a success.

Bombay witnessed another series of heavy rains today. The people of that City again started cursing the administration for the lack of any measures taken on their part. This is not new and happens every year and dies down once the rains are over. My brother missed an exam today because of the rain. There are surely thousands more who were affected in such adverse ways due to the rains. I can imagine that BMC Commissioner sitting in his chair in his office near Victoria terminus (the clean Bombay) and drinking hot tea while the rest of Bombay suffers. The excuse, “We are just too over populated to do anything. It is impossible to take any action with so many people around”. This is where I go back to China mentioned earlier and would like to credit them for the marvel they made out of Shanghai.

Poverty and red-tapism seem to have become buzzwords attached to the Indian administration and the people have ‘resolved’ not to do anything about it. I don’t want to be a part of such a Country. JFK saying “Ask not what your Country can do for you, but what you can do for your Country” is a sham. I think he was shot because of that. The Government exists for the people and only when it considers for their welfare must the people protect it. The essence of patriotism is in fighting for what you love. I’m trying too hard to love my Country, don’t think I can be a patriot anymore. Fed up of it.

The Nanda Storm

It turns out to be pretty amusing when one notices the lackadaisical attitude that the judiciary is taking towards the Sunil Nanda case. For those who are not aware, the accused Sunil Nanda (happens to be the son of Admiral BL Nanda) is charged with rash driving leading to the death of 4 people in 1999. In a new twist in the case, one of the witnesses, Sunil Kulkarni was involved in a sting operation the tapes of which showed the lawyers for both sides bribing the witness to change his testimony. RK Anand is the counsel for the accused who’s now in the limelight with this incident.

Most of the people I know who have worked with RK Anand are convinced that he would easily get away with the act. If this were to be believed then it doesn’t come as a surprise that the Supreme Court Bar Association (SCBA) has allowed him to practice in the Supreme Court. The same however is not in the Delhi High Court. He is temporarily barred from practicing and the case is proceeding before the vacation bench by Justice Muralidhar. But then, what can the Court do? Can it withdraw his license to practice? I don’t think the Court can or will do that. So ultimately a lawyer would get away with a heinous act for the very fact that he is a big guy and has is contacts to get him off the hook.

How then can one ensure that the judicial process in this country comes clean in delivering justice? Lawyers and judges don’t need some sort of protection but must be made accountable for their actions that violate due process. In fact I read the other day that some lawyers feel this would become a very strong case for the admissibility of illegal evidence in Court. The present position on the law is that such evidence is admissible where as after the Katz case it is inadmissible in the USA. You never know, sometimes to hide an illegality people fight to amend a law to their advantage.

While the case is still in progress, I just hope the Court considers justice and due process in giving its decision. The lawyers may go free today, but the verdict sure would give a free hand for the ambitious to practice such acts tomorrow.

This just in

This just in.

Former Customs Collector AN Thapa, one of the accused in the 1993 Bombay Blasts has challenged the Constitutional validity of the Terrorists and Anti- Disruptive practices Act (TADA). This comes in at a time when the Special tribunal is deciding on the sentencing of the accused in the case. Apparently the petition is based on an opinion by Justice Markandey Katju about how TADA is unconstitutional and obsolete in today’s system.

Would keep you all updated.

In the meantime, readers may read my earlier posts on terrorism and the validity of anti- terrorist laws in the country. link here

The Criminal Language

My criminal law professor made the following statements in class today;

1) 90% of the acquittals in the country happen because of the lack of evidence even though the people have committed the crime.

2) People in the parliament bomb blast and bombay blasts are being acquitted because of the lack of evidence.

3) Jessica lal and Priay darshini Mattoo resulted in disasters at first because of the lack of evidence.

All this happened, as can be observed in the evidence class. I am in a legal institution, one of the best I must say, and am taught to believe that the law is a failure. Such teaching comes from irrelevant facts. Its not just my teacher, but distinguished law people in the Country like Madhav Menon who make such statements and the parliamentarians sitting at the centre blindly trust them and make the law.
For example: The 142 law commission report says that Convicts are acquitted because the law is not strong. This baseless statement was then used as a justification for bringing in plea bargaining in the Country. Madhav Menon states that the conviction rate in the Country for lesser crimes is as low as 40 % where as the NCRB report states it to be 73.2% in Delhi alone. The Parliament says that Convicts are roaming about freely in the Country.

If you observe the examples above, you will see the usage of the word convict by these law makers. Well, you are a convict only is you have been held guilty by a court and not when you allegedly commit a crime. Such usage has made the common man loose faith in a system that is merely applying procedure. We jump to joy to see a man being convicted but the same is not seen if an alleged convict who is innocent is acquitted. Even though Bhagwati and Krishna Iyer made statements like "its more important not to convict an innocent man than to let a criminal go free", we don't seem to follow them anymore. I sometimes feel bad for Manu Sharma. Perhaps he was really innocent and got convicted because of the role of the media and the pressure of the public.
So then there needs to be a way in which crime is reported in the Country. Be it the newspaper or teaching the law. Information must be precise and not a bundle of ridiculous statements that most people would readily believe. As I write this, I feel bad for most of my class who would now be thinking that the criminal system is 'crap' and most Convicts roam free.

Reviewing the Shah Bano legacy.

On June 5, the Supreme Court of India in a significant ruling, held that the Muslim Women (Protection of Rights on Divorce) Act, 1986 would not hinder a divorced Muslim woman's right to maintenance under Section 125 of the Code of Criminal Procedure (CrPC).

Prior to delving into the importance of this judgment, it is imperative that the gamut of events, triggered with the Shah Bano verdict, be explained. In 1985, the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum, upheld the maintenance claim of Shah Bano, a divorced Muslim woman of 60 years, under S.125 of the CrPC; the Section provides for relieft to a wife (among others), "unable to maintain herself". However, this judgment created a huge outcry from the Islamic orthodoxy in India. The Rajiv Gandhi-led Government in power, passed the Muslim Women (Protection of Rights on Divorce) Act, to appease the outraged sentiments. The Act, quite ironically, curtailed the rights of Muslim women rather than protecting them. It limited the Muslim husband's responsibility to maintain his divorced wife to the period of iddat. Over the past decade, the Act has challenged over various grounds of Constitutional validity. The apex Court's decision in Daniel Latifi v. Union of India was instrumental in clearing the fog of confusion. The Court in that instance, gave a liberal interpretation of the Act,(specifically S. 3(1)) in so far as the "fair and reasonable" provisions to the divorced Muslim woman shall include maintenance for her future extending beyond the iddat period.

Earlier this month, the two judge-bench comprising Justic Arijit Pasayat and D.K. Jain in the case of Iqbal Bano v. State of Uttar Pradesh overruled the Allahabd High Court's order on the same matter; the H.C had held that the divorced wife is not entitled to maintenance under the CrPC in lieu of the existing Act of 1986. There were questions raised as to whether the divorce effected was proper; to which the Court answered in the negative. While the Act only deals with divorced women the CrPC, in the opinion of the Hon'ble Court, is of broader ambit. A relevant passage from the judgment is quoted below:

Under the 1986 Act the husband has two separate and distinct obligations, viz. to a make a reasonable and fair provision for his divorced wife [for her residence, food, clothes and other articles], and to provide maintenance for her. Though it may look ironical that the enactment intended to reverse the decision in the Shah Bano case it actually codifies the very rationale contained therein.

A judgment is certainly a step in the correct direction to secure the rights of divorced Muslim women unable to maintain themselves, and relieve them of their plight perpetrated by legal instruments such as the Act of 1986.

Cracking the Whip on Gujjars

Till a while ago, I thought that the Gujjars are going to get away with all the damage that they have caused. The railways alone have suffered losses of upto 200 crores. Rajasthan roadways of about 50 crores and not to mention the lives of about 27 people.

Col. Bainsla, the Gujjar leader may finally have to pay the price for all the damage that the community has caused.

Well not anymore! The state machinery has finally decided to crack the whip on the Gujjars by registering cases against the leaders for murder, destruction of property and conspiracy. Looks like the government was waiting for the exact moment to put these things in place. Earlier when the 'peace accord' was reached, Col. Bainsla the Gujjar leader apologised for all the damage the Gujjars had caused and stated that it was required to attain an end but meant no harm to people. Well, he just will have to pay for it now.

These are the moments I cherish the most. You finally see the law taking its course. Short lived it may though be, but it brings some satisfaction. I just hope this does'nt turn into another mockery and sham.

India's Role in Tackling Climate Change

Yesterday, while observing World Environment Day, the Government announced the setting up of the Prime Minister's Council on Climate Change. The high-level advisory body has been constituted to "coordinate National action plans for assessment, adaptation and mitigation of climate change". The move comes at a crucial juncture after the Inter-Government Panel on Climate Change had submitted its Fourth Assessment Report in April, 2007; the G8 summit to be held later this month is also expected to deal extensively on the issue.

"Climate Change", a term used in the United Nations Framework on Climate Change (UNFCC), pre-supposes an involvement of the human element in contributing to, say, a specific instance like global warming. India, with its significant population count is no doubt a contributor, albeit lesser in degree, to greenhouse gas emissions, industrial and automobile fuel-pollutants and consequently, to global warming. Furthermore, it is extremely critical that the ideal of sustainable development be attained as the problem of rapidly vanishing forest belts (along with it, natural resources of water, minerals etc) in India cannot be ignored anymore.Ours being an agrarian economy, climate change is of all the more concern in that ever-rising temperatures and depleting irrigation sources can be fatal to the agro-sector.

The PM's Council, therefore, has a significant role in shaping the future course of activities to tackle the problem of climate change. GreenhouseGases Online has annexed a very informative slideshow on Climate Change Mitigation and the Kyoto Protocol on their website. The Presentation may be viewed here: http://www.ghgonline.org/sacpress2003/mitigatekyoto/sld001.htm

Caste wars and the National Security Act

On Saturday night, the Government of Rajasthan enforced the National Security Act in eleven of its districts. Most of the news reporters have talked about its imposition but none about its implications. One needs to understand that the Act is basically a ‘preventive detention’ act, one of the greatest legitimate ills in our country. I use the word legitimate because it is a violation that is given sanction to in the Constitution of our country.

The National Security Act, 1980 was imposed under Section 3 (2) which says that if the State government is satisfied that with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of Public order, it may impose the Act. In the case of Rajasthan, it was imposed to supposedly prevent the clash between the Gujjars and the Meenas.

But the point is, was the imposition of such a harsh legislation really required? Earlier the District Commissioner of Bharatpur imposed section 144 of the Cr. PC (Prohibition of an Act to prevent public order etc…). Apparently the situation was brought under control in the said district. Our governments have this knack of bringing in the harshest legislations without any understanding of its implications to personal liberty. Such actions more or less have stood the test of time and cannot even be challenged in Court. When there were other options available, then why did the Rajasthan government bring in the NSA? In SR Bommai v. Union of India, the Court held that introduction of emergency powers under the Constitution can be questioned in the Court. The same reasoning should be applied to the NSA.

Preventive Detention in India has unfortunately stood the test of time and its going to be extremely difficult for it to be repealed now. In AK Gopalan’s case, the Court justified preventive detention in the name of maintaining public order. This was later upheld in ADM Jabalpur v. Sivakant Shukla where the Maintenance of the Industrial Security Act (MISA) was upheld. But the point again to be understood is that ‘preventive detention’ under the Constitution was meant to be for the protection of the State and not against some actions ensued by caste wars. The Gujjars and the Meenas may fight, but that doesn’t mandate preventive detention. Executive action without any checks and balances is a toll for destruction of the democratic order. Unbridled powers leads to abuse that violate the very ethos within which they are framed.

I am however given to understand that there have not been many arrests under the NSA in Rajasthan. The gujjars are destroying state property in the State of Rajasthan. Perhaps starting curfews and imposing laws like Section 144 of the code of criminal procedure would have helped more than imposing preventive detention law.

There is a meeting of the Gujjar leaders with the Chief Minister Vasundhara Raje tonight. Hope the meeting ends amicably and the fighting can come to an end.

- Sachin Pilot, Gujjar leaders meet Rajnath Singh

- Gujjars call for a Delhi bandh on Monday

Exclusion of Women from Employment Guarantee: The Myth of the Able-Bodied Worker.

The National Rural Employment Guarantee Programme (NREGP), formulated consequential to the NREG Act, 2005, has no doubt, been of benefit to a vast number of families from rural India. This social-welfare legislation has proved instrumental in creating employment, albeit temporary, to those lacking adequate means of livelihood. The present context upon which I wish to comment, is one that exemplifies the connection, or rather the absence thereof, in the spheres of law and society. The exclusion of single women and widows from the ambit and benefit of the NREGP is no small matter.

The background to this comment is based on P. Sainath’s article in the Hindu dated May 22, 2007 and can be read here: http://www.hindu.com/2007/05/22/stories/2007052200840900.htm

The article, in essence, deals with case-studies of single and widowed women in Andhra Pradesh who have been refused employment under this Programme on the ground that they lacked a male partner joining for work. Many of the widows’ farmer-husbands committed suicide in light of the extremely miserable conditions for agrarian production which have been long prevalent in A.P (and many other parts of the country) now. Such reports have even received confirmation from officials in the Government. Digressing slightly, it can be stated there is a complete lack of awareness as to the fact that the widowed women of farmers are all the more in need of employment as a result of the deficient means of livelihood.

If one observes the reasons for refusal to provide employment to these women, it can be noted that such employment is contingent on the presence/ absence of a male partner at work. The fundamental assumption, therefore, is that productivity and work will be compromised if single/widowed women are employed without male workers to “compensate” such depletion in productivity. In short, only male workers can be trusted, so to say, to maintain standards of efficiency at work. Inherently discriminatory in nature, such tendencies do well to perpetuate the myth of the “able-bodied worker”. It would be truistic to say that the very purpose of the NREG Act is destroyed if such notions are encouraged. If employment were to be provided on such fallacious grounds based on efficiency, rooted in gender bias, we would only be promoting discrimination; not to mention the fact that livelihood of families run by women (no meagre number, that) would be thrown into (further?) economic backwardness.

The law in its implementation has to be conscious of ground realities in society. A social welfare legislation is absolutely redundant if in practice, it encourages such myths and discriminates on the basis of norms clearly unconstitutional. An understanding of social and gender equality is critical to the benefit of its subjects in society.

“Shifting Goalposts” within the Indo-US Nuclear Deal.

As negotiations on the proposed nuclear co-operation agreement between India and the United States enter a critical third day, it is extremely important to analyse and understand the impact that the deal, if it comes through, will have on the Indian civilian and strategic nuclear power programmes. The background to the present round of talks had already been sown in July 2005 when both countries had agreed to co-operate on the issue of supply and use of nuclear energy for civilian, peaceful purposes. The consensus arrived at, was hailed as historic and India was said to benefit immensely from the subsequent deal. However, later developments in this regard has witnessed a paradigm shift in the demands and objectives that the United States seeks to attain from this deal; a stand which the Prime Minister Manmohan Singh has referred to as “shifting goal-posts”.

In 2005, at the time of agreement, the U.S had agreed to a policy of non-intervention in any of India’s strategic nuclear programmes as regards the design, development or testing of any nuclear weapons. The deal focussed primarily on the issue of nuclear fuel for civilian purposes and supply from the U.S and the N.S.G (Nuclear Suppliers Group) for the same; this subject to India’s conformity to fuel and reactor norms as specified by the IAEA. However, in late 2006, the U.S. Congress passed the United States- India Peaceful Atomic Energy Co-operation Act, now popularly known as the Hyde Act. The Hyde Act, which received an overwhelming approval in the Congress, has completely redefined the context in which the deal is to be passed. The Act puts a cap on further testing of nuclear weapons by India; in the event of a breach through such testing, co-operation would be suspended. Furthermore, the question of civilian nuclear energy co-operation seems to be a half-way house. India, if one were to understand the terms of the Act, is barred from reprocessing its spent fuel; a limitation on an apparent sovereign right of the nation. Not only is it a restriction on such a right, it shall also result in the piling up of radioactive spent material.

If the 123 Agreement currently in the process of negotiation were to come through in its modified context, India would be subject to terms and conditions entailed in the Hyde Act. Already the U.S legislation has received heavy flak from various political organisations within India. Questions, even those concerning a rethinking of the entire deal has been put forth. Therefore, the present state-of-affairs are critical in shaping the future course of nuclear technology development in India.

In a forum for Greater Co-operation between India and the U.S in New Delhi, Nicholas Burns, the U.S. Under Secretary of State for Political Affairs had stressed on the isolationist policy India had adopted vis-a-vis nuclear power (civilian and strategic) and had emphasized on a “compromise” of sorts with the Hyde Act to ensure rapid development on spheres of civilian nuclear technology. What the Under-Secretary seems to forget is the fact that the isolationist stand had been thrust upon India after Pokhran in ‘74 and ‘98 by US-driven policies of sanctions and other restrictions.

As the world is gradually moving towards a dilution of polarity, with more “Superpowers” emerging in the scene, such a lop-sided agreement cannot be encouraged. To reiterate, India should push for equality within the field of nuclear co-operation and must not push through in haste with the 123 Agreement.

Lebanon Pounding

Artillery shelling, tanks at the gate, missile launches; a ‘normal’ Israeli attack against another side that comprises of 400,000 Palestinian refugees, just that this time it was Lebanon. Early in the morning today, Lebanese forces entered the territory of Lebanon and attacked a Palestinian refugee camp in the Nahr- al Bared area.

This just adds to the personal anguish that I have against Israel. They always have been considered to be ‘aggressive egotist creeps’ by me. I was having a discussion the other day with Usha Ramanathan as to how the Jews have been the cause for all the major wars since 1936 (partly true you know). Domination and religious cleansing seem to be the only ideals of the semis in the middle east. Lebanon is bowing down to the pressure exerted by Israel.

I actually do not propose to write this piece pleading for the cause of Palestine even though I do sympathise for their cause. I write this as this incident is also related to a certain aspect of international law; breach of the 1969 Arab Agreement. The 1969 Agreement between Lebanon and the Palestinian Liberation Organization (PLO) says that the Army cannot enter the 12 refugee camps in the territory of Lebanon. According to Lebanon, Fatah- al Islam militants are based in the refugee camps and an ultimatum has already been issued against them. The government is demanding that the militants surrender and the authorities have already charged 20 captured members of the group with terrorism. The charges carry the death penalty.

I am not aware of the exact object and purpose of the 1969 agreement but the one thing that boggles me a lot is that since when did ‘prevention of terrorism’ become a jus cogens norm that could be used as an excuse to violate a treaty under Article 53 of the Vienna Convention? I have an issue with the word terrorism because it is a state construct (Refer to my earlier posts) and also because the Palestinian militants are not terrorists but freedom fighters in one sense.

Going back to the legal issue at hand, finding it hard to figure out if it’s possible. It’s something I need to look up, didn’t know something like this existed till now. This is also related to issues like state recognition, sovereignty and having someone to hear your voice. These three remain in the grey area for Palestine. Perhaps not now, but sometime in the future Palestine will get justice and the world will know of their misery.