Tuesday, October 30, 2007

India Shining III: Land Rights!

There is an apparent irony in today's paper. On the front page you have a half page story talking about India's investment and how Mukesh Ambani is the world's richest man (63 billion $ is a lot). On how the sensex has risen 1000 points in 14 days and the top 5 companies have contributed to it.

A few pages afterwards we have a story about 25,000 people marching to the capital to demand land rights and stressing that they have been betrayed by corporates, rich landlords and the likes of them. I was aware that this march was being organised during my stay in the Gandhi Peace Foundation. This march is no joke and I was witnessed the people at ekta parishad planning out everything to the detail.

More...The above above two instances tell us the story of the Indian Nation. Those who get rich do so at the cost of thousands of others. The Planning commission has released a document stating that the issue of naxalism is directly linked to land rights of the poor. Helloo!!!!! "did you take that long to realise it?". The Prime Minister says that he shall form a committee to look into this land issue. Now that he's made the statement the poor will be 'packed off'. That's how diplomacy works in this country. Give them an assurance, a ray of hope and there shall be no issue in the future. The same was with the Gujjars too. Ah well! nobody seems to realise the gravity of the situation. I can just imagine 25000 people coming from gwalior to Delhi on foot just to hear this statement without understanding that 7 Race Course Roadmight hardly do anything. They have bigger things to do; remember the Nuclear deal and saving the coalition!

That is the irony of India Shining. We see it, we know it, but most of us don't raise a voice about it.

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Sunday, October 28, 2007

The reality of free speech: The Gujarat episode

Now playing: Neil Young - We r in control
via FoxyTunes

The recent events in Gujarat are tattering to an Indian's heart. It's not just the Tehelka tapes that have come out in the open; the banning of TV news channels in Gujarat, disgusting comments by the Press and politicians are all a consequence of it which further saddens me.

Mirza in an wonderful read pens down the responses,

BJP spokesman Prakash Javadekar said “This sting has rendered Tehelka as the investigative wing of the Congress”. BJP leader Rajiv Pratap Rudy said “Definitely the sting operation and its content are suspect, because we are aware for sometime that there are detractors against Modi in Gujarat and there is the Congress party, which has lost all ground in the state.” They talk about everything but not about the inhuman brutality. Vir Sanghvi wrote very aptly regarding this in 2002 “I was not surprised when the political establishment scrambled to look for conspiracies: the CIA was behind it, the ISI sponsored Tehelka…My point then, as now, was simple enough: let us first deal with the revelations and then worry about Tarun’s so-called backers.”

Today Chandan Mitra, the editor of the 143 year old newspaper Pioneer and a BJP supported Rajya Sabha MP, invoked the third and the fifth point; Modi has won various elections and why do you take out dead issues now. This is the editor of one of the oldest national newspapers of India! In which moral system and when was justice decided by the street? If someone wins elections does it exonerate them? Mr. Mitra, is the state of journalism going down to this level in India? And since when did we start forgetting about injustices on the pretext of moving ahead? Should we have said the same to the Sikhs who were hounded in 1984? Should we have said the same to the utterly vulnerable Jews who were brutalized and killed in millions by the Nazis? That it will be all decided in the court of law and forget about it in the social aspect.

When I myself went to Ahmedabad last december, I was shocked to learn about and see the ghettoization of the Muslims; rich and the poor in the officially put 'world class city'. But the other issue was, whoever I met (hindus only), were sort of equating Modi to Gabriel as a messenger of god.

And what about free speech? The governments decision to ban all the TV channels that showed the news clip is now a rider to the free speech clause in the Constitution. Hah! gone are the days when Article 19 1(a) was the ultimate sword for the press. If my readers are interested, I'd request you to read Express Newspapers v. Union of India; an amazing case that exposed the link between Gov action and free speech in 1985 and the Delhi riots. (A related article here)

We seem to live in a world of our own. Assuming time and again that Governmental action is free from violence, where as it is so evident in such situations. Those who know that law or are learning it, refuse to budge a little and understand it in terms of its impact on the society. The incidents show a fallacy in the law. That rights in India are only meant to be in thick Constitutional law books and when it comes to situations like Gujarat and media exposes, they seem to vanish into thin air.

There are means that cannot be excused. And I should like to be able to love my country and still love justice. I don’t want just any greatness for it, particularly a greatness born of blood and falsehood. I want to keep it alive by keeping justice alive.

That was Albert Camu, from Resistance, Rebellion and Death on the French conduct in Algeria. The Indian Express in an editorial writes,

What a sting operation in 2007 says has been in the public sphere since 2002. We have always known that the state in Gujarat allowed the gruesome violence to play out, when it didn’t actively collude in the killings. But there is more to this moment than just that. It frames the special resonance of Gujarat 2002 in the nation’s consciousness. In a country where outbreaks of communal violence have been much too frequent — the anti-Sikh violence in Delhi 1984 ranks among the most shameful — the post-Godhra carnage will not allow us to move on. The evidence of state culpability and the absence of reparation is far too insistent. It calls for some form of accountability to be enforced, before any possibility of closure.

There should be an end to this. My heart goes out to all the victims of such actions.

Live Strong!

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Sunday, October 21, 2007

Bobby's Won !!

Bobby Jindal has one! He is now officially the new governor of Louisiana.

Think I'm writing this for the main fact that he's an Indian and has won in a once segregated state. Born of native Indians in New Orleans, this guy has actually come up the ranks the hard way to win and become the top man in a US State.

NYT reports,

The ascendancy of the Brown- and Oxford-educated Mr. Jindal, an unabashed policy wonk who has produced a stream of multipoint plans, is likely to be regarded as a racial breakthrough of sorts in this once-segregated state. Still, it is one with qualifiers attached.

And yes, like always, the sirens have started hounding louder in India than in the US of his victory. Indian news channels have already started showing videos of Bobby's Indians home and lineages in his town. Similar instances happened when Sunita Williams went to space and when she came to India after that, not one day did i not see her photograph with some school children on the cover page talking about their future.

Bobby Jindal is a nice man. Deserves the credit. But do we Indians always have to make big issues about such instances as if History would never witness them again?

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Friday, October 19, 2007

Democracy and Pakistan

Is democracy a hard thing to achieve? Pakistan Preseident Pervez Musharaff surely knows how to get away with things in the name of democracy. This time, all the pieces fit in the puzzle.

When Nawaz Shariff wants to come back to his homeland, the moment he lands at the ariport he is packed off to political asylum.

Now Benazir Bhutto comes home and there is a blast with 136 dead and still counting. Solicited Pakistani media was quick to react and put the blame on Al- Qaida who allegedly don't approve of Bhutto's support for the US 'War on Terrorism'. But that does not and should not remove the slight possibility that the President had a hand in this incident. And the motive; to keep his political rivals away in the coming elections.

What baffles me more is the utmost disregard to human life in the midst of political conflict. That democracy has turned out to be a notion of multiple political parties vying for power rather than concern for the people themselves. To be noted is that Pakistan is not the only playground for such antics and this seems to be observed everywhere, be it the USA or even Gujarat. Surely Modi's supposed 'Ram Rajya' is a trick in this regard (To the english media he says its the Gandhian notion of a welfare state, but the common gujarati believes it to be a Hindu state).

I am certain that the coming pakistani elections would be an interesting event to read about.

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Thursday, October 18, 2007

Indian at the Nobel

How many of us know that Al Gore has won the Nobel Peace Prize for his contributions to the environment this year?

- All of us do. :)

How many of us know that he has shared that prize with the UN's Intergovernmental Panel of Climate Change ?

- Most of us do.

Now how many of us know that the head of the IPCC is an Indian who was instrumental in the Panel getting the award ?

- Uhh ! well, not many of us I'm sure.

Dr. Rajendra Pachauri has, as the head of the IPCC become the seventh Indian to become a recipient of the Nobel Prize. Though I don't know if officially the credit would go to him or the organisation, but it still is an achievement. :) And yes, he formerly worked with the Tata Energy Research Institute, was born in Nainital and works out of New Delhi.

“I am only a symbolic recipient but it is the organisation which has been awarded,” Dr Rajendra Pachauri says. But then, didn’t Tagore and Mother Teresa get the award for the achievements of Shanti Niketan and Missionaries of Charity?


Although Al Gore was reportedly unhappy with the choice of the Indian, who he feared would be a drag on the organisation because of his strident criticism of the United States, Pachauri won him over with his total dedication to the cause of ecology, which is dear to Gore as well.

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Tuesday, October 16, 2007

Common Men, Uncommon Law : Exploring the links between disciplinary proceedings and criminal law

My latest paper. Suggestions invited.


Equality in administrative law and procedure is a Dicean concept. It delves into the fact that there must be equality in treatment between public servants and the ordinary citizen. The State- citizen divide in the legal system has always been a debatable issue that only some have sought to address. This issue also comes to the fore in the area of criminal law.

With its roots in the French droit administratif, the system of having disciplinary proceedings for certain crimes conducted by public servants is a facet of the Indian administrative system. It marks the diversion from the old common law system. That however is not the problem. The problem arises when there is a difference in the punishment meted out to these persons for the crimes they have committed that are way different from those meted out to the ordinary citizen for the same crime. Section 197 of the Code of Criminal Procedure still remains as a bar to prosecuting government servants with the latest case being that of UP Chief Miniser Mayawati where the Governor refused to give a sanction under Section 197. This despite a SC decision in Prakash Singh Badal v. Union of India, in December 2006 stating that no sanction is required in corruption cases.

It is observed that the Indian legal system is one bridled with impunity and looks at placing the State above the law. This, despite very well knowing that the state is the creation of the law and consists of the ordinary man itself.

In light of the above theoretical framework, this paper would like to explore the diverse link between disciplinary proceedings and ordinary criminal law. Along with analyzing the laws relevant, the researchers would also be looking at the collection of data concerning the punishments to public servants and finally presenting an argument as to why such a system must not be present today.

................ Download full paper .

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Sunday, October 14, 2007

Masooda Parveen's review petition dismissed

Dear Friends,

It is with regret that I inform you that the review petition which was filed by Masooda Parveen against the judgment dated 2.5.2007 passed by the Supreme Court came up before Justices Dalaveer Bhandari and H.S. Bedi today (11/10/07), and has been dismissed.

I may remind you that Masooda Parveen had filed a writ petition under Article 32 and 21 for compensation for the death of her husband, an advocate, in the custody of 17 Jat Regiment in Pulwama, Kashmir, as far back as February 1998. While initially the petition was for compensation and for compassionate employment to the wife, later its scope had been expanded to get the court to lay down some safeguards from the army that enjoys "special powers" in J&K under the J&K Armed Forces Special Powers Act. It was hoped by us that the Supreme Court would use this opportunity to apply the safeguards in the Naga People's Movement for Human Rights case to J&K.

In the judgment dated 2.5.2007 handed down after nearly 9 years of its filing (reported in 2007(6) SCALE 447; copy enclosed) the Supreme Court has inexplicably overlooked crucial facts which pointed to glaring inconsistencies and contradictions in the version of 'accidental death' put forward by the state. It also ignored the fact that despite the closure report in an investigation under s. 174 CrPC being rejected by the District Magistrate, Pulwama, and Rule Nisi being issued by the Supreme Court, the local administration "lost" the inquest file and all the critical documentation contained in it.

In the judgment, the Supreme Court has unquestioningly accepted the army's bald version that the deceased had been a 'militant', when not a scrap of evidence exists for such a serious allegation. It has further observed that the petitioner has not been able to show her version of events was true. Placing the burden of proof squarely on the petitioner, the judgment contradicts the body of existing law where the burden lies on the state to show how the death occurred in incidents of custodial death. Such burden must for obvious reasons be even higher where death occurs in Army custody in a disturbed area where the Armed forces are, theoretically, operating under the supervision of the 'civil authorities'.

A further disturbing aspect of the judgment is that it proceeds to carve out an exception to directions made by a 5 judge Constitution Bench in the NPMHR judgment ((1998) 2 SCC 109). According to that judgment, the Army is bound by the Constitution of India as well as by the provisions of the Armed Forces Special Powers Act to produce any person arrested by it before the nearest police station with "least possible delay". In that judgment the Supreme Court had also observed that "least possible delay" could not exceed 2-3 hours, since after being handed over at the nearest police station, the arrestee has to be produced before the Magistrate within 24 hours of arrest in accordance with Article 22 of the Constitution.

However, the judgment in Masooda Parveen's case chose to ignore evidence before it that the deceased was in illegal Army custody for at least 30 hours before his death, and instead observes:

" We are also not un-mindful of the fact that prompt action by the army in such matters is the key to success and any delay can result in the leakage of information which would frustrate the very purpose of the army action."

The Government of India had attempted to get just such an exemption in the petition seeking clarification of the NPMHR judgment, and this had been negatived by a 5 judge bench of the Supreme Court by order dated 7.8.2001.

The petitioner widow who has in the intervening years raised her children single-handedly and also been under surveillance by the state, is heartbroken to get this verdict that labels her husband a militant, and therefore by extension herself and her children as well.

But the implications of the judgment go far beyond the private heartbreak of one family. This is probably the first judgment of the Supreme Court interpreting the provisions of the Jammu and Kashmir Armed Forces Special Powers Act. Not only has the Supreme Court lost an opportunity to hold the Armed forces accountable for increasingly heinous excesses against the Kashmiri people, the Supreme Court has also sent out a message virtually endorsing the impunity of the Armed Forces for such acts.

All this, and more, had been placed before the Supreme Court in the Review Petition filed by the petitioner-widow in July 2007 (copy attached), in the hope that the Court would recognise the impact of the judgment dated 2.5.2007 on the petitioner, as well as its larger implications for the people of Kashmir, and therefore reverse it. The Supreme Court has, however, chosen today to dismiss the review petition filed by the petitioner.

With regards,

Shomona Khanna


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Friday, October 12, 2007

We love Torture

I got hold of a BBC survey on Torture and how people understand it around the world. Actually Time has an article on civil liberties and I read it there.

More importantly, I was shocked to see the statistics on India.

For Indians, (atleast a majority of them), torture is good. I think this very statistic justifies the reason as to why despite various court rulings and laws, torture still exists in India. Ha... the governance in this country is surely going down the drain.

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Thursday, October 11, 2007

In the last post I had displayed this cartoon from the Times of India,

xntricpundits commented the following on it,

Brilliant cartoon.Look at the way the cartoonist sketched it.You can see convoy of cars to your top left,ropes hanging to trees to your top right.Politician wearing goggles..mota golmatol babu in sharp contrast with lean thin frames of farmers and the dog by the side of cot.Politicians PA holding a file named SEZ.
The irony in the carton hits the solar plexus.
Truly India is shining.

Some more facts and figures to add to the previous post,

$ 41.2 billion is the total money earned by the top 5 rich people, India's budget for the health sector is only 4.2% of the GDP.. i.e. around $17 billion.

47% of the population of the city of Mumbai still lives in slums. Plans are underway to make Mumbai Shanghai. Wonder what would happen to the slum dwellers.

Only 7% of the Indian population holds a graduate degree.

In as much as more than $ 40 billion have been poured in the various poverty schemes since 1982, none of them have been successfully implemented.

PS: readers may also see my post on ' How the Other India Lives'

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Monday, October 8, 2007

The Terror Presidency

The Book I so want to read now; Jack Goldsmith's The Terror Presidency: Law and Judgment Inside the Bush Administration.

In October 2003, President Bush appointed Goldsmith, a self-described conservative who proudly proclaims that he is not a civil libertarian, head of the Justice Department's Office of Legal Counsel, thus making him chief adviser to the president about the legality of presidential actions. Ten months later, Goldsmith resigned because he could not endorse the unlawful policies the administration had implemented in the war on terror.
Shortly after taking office, Goldsmith reviewed a series of highly confidential opinions written by his predecessors in the Bush administration that defended the legality of "some of the most sensitive counterterrorism operations in the government." To Goldsmith's shock and dismay, he found that some of these opinions "were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President." What was going on?

As Goldsmith recounts in his chilling new book, "The Terror Presidency," he and his Justice Department colleagues (in consultation with lawyers from the State Department, the Defense Department, the CIA and the National Security Council) reached a consensus in 2003 that the Fourth Geneva Convention (which governs the duties of an occupying power and the treatment of civilians) affords protection to all Iraqis, including those who are terrorists. When he delivered this decision to the White House, he recalls, Addington exploded: " 'The president has already decided that terrorists do not receive Geneva Convention protections,' he barked. 'You cannot question his decision.' "

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India Shining

The Times of India cartoon below aptly describes the title of my post.

Truly we are shining. Newspapers report that the ten richest people in the Country have increased their net worth by 51% in the past seven months. That amounts to roughly $ 41.2 Billion. And yes, people still die.

Capitalism seems to have taken a new course in this Country. the rich become richer and the poor don't seem to be a priority anymore. The left seems to have become a shadow party and the Congress's AAM AADMI seems to be the rich man who wants to make his millions.

Traffic jams still occur; the cities still have bad infrastructure. I still hate Bombay because of the traveling hassles. So the question is; Where does all the money go? Surely not only into the pockets of the top 10. :)

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Saturday, October 6, 2007


I would now also be blogging and posting at Blogbharti.com 

Scandal in the Palace

By Arundhati Roy

25 September, 2007
Outlook India

Scandals can be fun. Especially those that knock preachers from their pulpits and flick halos off saintly heads. But some scandals can be corrosive and more damaging for the scandalised than the scandalee. Right now we’re in the midst of one such.

At its epicentre is Y.K. Sabharwal, former Chief Justice of India, who until recently headed the most powerful institution in this country—the Supreme Court. When there’s a scandal about a former chief justice and his tenure in office, it’s a little difficult to surgically excise the man and spare the institution.

But then commenting adversely on the institution can lead you straight to a prison cell as some of us have learned to our cost. It’s like having to take the wolf and the chicken and the sack of grain across the river, one by one. The river’s high and the boat’s leaking. Wish me luck.

The higher judiciary, the Supreme Court in particular, doesn’t just uphold the law, it micromanages our lives. Its judgements range through matters great and small. It decides what’s good for the environment and what isn’t, whether dams should be built, rivers linked, mountains moved, forests felled. It decides what our cities should look like and who has the right to live in them. It decides whether slums should be cleared, streets widened, shops sealed, whether strikes should be allowed, industries should be shut down, relocated or privatised. It decides what goes into school textbooks, what sort of fuel should be used in public transport and schedules of fines for traffic offences.

It decides what colour the lights on judges’ cars should be (red) and whether they should blink or not (they should). It has become the premier arbiter of public policy in this country that likes to market itself as the World’s Largest Democracy.

Ironically, judicial activism first rode in on a tide of popular discontent with politicians and their venal ways. Around 1980, the courts opened their doors to ordinary citizens and people’s movements seeking justice for underprivileged and marginalised people. This was the beginning of the era of Public Interest Litigation, a brief window of hope and real expectation. While Public Interest Litigation gave people access to courts, it also did the opposite. It gave courts access to people and to issues that had been outside the judiciary’s sphere of influence so far. So it could be argued that it was Public Interest Litigation that made the courts as powerful as they are. Over the last 15 years or so, through a series of significant judgements, the judiciary has dramatically enhanced the scope of its own authority.

Today, as neo-liberalism sinks its teeth deeper into our lives and imagination, as millions of people are being pauperised and dispossessed in order to keep India’s Tryst with Destiny (the unHindu 10% rate of growth), the State has to resort to elaborate methods to contain growing unrest. One of its techniques is to invoke what the middle and upper classes fondly call the Rule of Law. The Rule of Law is a precept that is distinct and can often be far removed from the principle of justice. The Rule of Law is a phrase that derives its meaning from the context in which it operates. It depends on what the laws are and who they’re designed to protect. For instance, from the early ’90s, we have seen the systematic dismantling of laws that protect workers’ rights and the fundamental rights of ordinary people (the right to shelter/health/education/water).

International financial institutions like the IMF, the World Bank and the ADB demand these not just as a precondition, but as a condition, set down in black and white, before they agree to sanction loans. (The polite term for it is structural adjustment. ) What does the Rule of Law mean in a situation like this? Howard Zinn, author of A People’s History of the United States, puts it beautifully: “The Rule of Law does not do away with unequal distribution of wealth and power, but reinforces that inequality with the authority of law. It allocates wealth and poverty in such indirect and complicated ways as to leave the victim bewildered.”

As it becomes more and more complicated for elected governments to be seen to be making unpopular decisions (decisions, for example, that displace millions of people from their villages, from their cities, from their jobs), it has increasingly fallen to the courts to make these decisions, to uphold the Rule of Law.

The expansion of judicial powers has not been accompanied by an increase in its accountability. Far from it. The judiciary has managed to foil every attempt to put in place any system of checks and balances that other institutions in democracies are usually bound by.

It has opposed the suggestion by the Committee for Judicial Accountability that an independent disciplinary body be created to look into matters of judicial misconduct. It has decreed that an FIR cannot be registered against a sitting judge without the consent of the chief justice (which has never ever been given). It has so far successfully insulated itself against the Right to Information Act. The most effective weapon in its arsenal is, of course, the Contempt of Court Act which makes it a criminal offence to do or say anything that “scandalises” or “lowers the authority” of the court. Though the act is framed in arcane language more suited to medieval ideas of feminine modesty, it actually arms the judiciary with formidable, arbitrary powers to silence its critics and to imprison anyone who asks uncomfortable questions.

Small wonder then that the media pulls up short when it comes to reporting issues of judicial corruption and uncovering the scandals that must rock through our courtrooms on a daily basis. There are not many journalists who are willing to risk a long criminal trial and a prison sentence.

Until recently, under the Law of Contempt, even truth was not considered a valid defence. So suppose, for instance, we had prima facie evidence that a judge has assaulted or raped someone, or accepted a bribe in return for a favourable judgement, it would be a criminal offence to make the evidence public because that would “scandalise or tend to scandalise” or “lower or tend to lower” the authority of the court.

Yes, things have changed, but only a little. Last year, Parliament amended the Contempt of Court Act so that truth becomes a valid defence in a contempt of court charge. But in most cases (such as in the case of the Sabharwal…er… shall we say “affair”) in order to prove something it would have to be investigated. But obviously when you ask for an investigation you have to state your case, and when you state your case you will be imputing dishonourable motives to a judge for which you can be convicted for contempt. So: Nothing can be proved unless it is investigated and nothing can be investigated unless it has been proved.

The only practical option that’s on offer is for us to think Pure Thoughts.

For example:

a. Judges in India are divine beings.

b. Decency, wholesomeness, morality, transparency and integrity are encrypted in their DNA.

c. This is proved by the fact that no judge in the history of our Republic has ever been impeached or disciplined in any way.

d. Jai Judiciary, Jai Hind.

It all becomes a bit puzzling when ex-chief justices like Justice S.P. Bharucha go about making public statements about widespread corruption in the judiciary. Perhaps we should wear ear plugs on these occasions or chant a mantra.

It may hurt our pride and curb our free spirits to admit it, but the fact is that we live in a sort of judicial dictatorship. And now there’s a scandal in the Palace.

Last year (2006) was a hard year for people in Delhi. The Supreme Court passed a series of orders that changed the face of the city, a city that has over the years expanded organically, extra-legally, haphazardly. A division bench headed by Y.K. Sabharwal, chief justice at the time, ordered the sealing of thousands of shops, houses and commercial complexes that housed what the court called ‘illegal’ businesses that had been functioning, in some cases for decades, out of residential areas in violation of the old master plan.

It’s true that, according to the designated land-use in the old master plan, these businesses were non-conforming. But the municipal authorities in charge of implementing the plan had developed only about a quarter of the commercial areas they were supposed to. So they looked away while people made their own arrangements (and put their lives’ savings into them.) Then suddenly Delhi became the capital city of the new emerging Superpower. It had to be dressed up to look the part. The easiest way was to invoke the Rule of Law.

The sealing affected the lives and livelihoods of tens of thousands of people. The city burned. There were protests, there was rioting. The Rapid Action Force was called in. Dismayed by the seething rage and despair of the people, the Delhi government beseeched the court to reconsider its decision. It submitted a new 2021 Master Plan which allowed mixed land-use and commercial activity in several areas that had until now been designated ‘residential’. Justice Sabharwal remained unmoved. The bench he headed ordered the sealing to continue.

Around the same time, another bench of the Supreme Court ordered the demolition of Nangla Macchi and other jhuggi colonies, which left hundreds of thousands homeless, living on top of the debris of their broken homes, in the scorching summer sun. Yet another bench ordered the removal of all “unlicensed” vendors from the city’s streets. Even as Delhi was being purged of its poor, a new kind of city was springing up around us. A glittering city of air-conditioned corporate malls and multiplexes where MNCs showcased their newest products. The better-off amongst those whose shops and offices had been sealed queued up for space in these malls. Prices shot up. The mall business boomed, it was the newest game in town. Some of these malls, mini-cities in themselves, were also illegal constructions and did not have the requisite permissions.

But here the Supreme Court viewed their misdemeanours through a different lens. The Rule of Law winked and went off for a tea break. In its judgement on the writ petition against the Vasant Kunj Mall dated October 17, 2006 (in which it allowed the construction of the mall to go right ahead), Justices Arijit Pasayat and S.H. Kapadia said:

“Had such parties inkling of an idea that such clearances were not obtained by DDA, they would not have invested such huge sums of money.

The stand that wherever constructions have been made unauthorisedly demolition is the only option cannot apply to the present cases, more particularly, when they unlike, where some private individuals or private limited companies or firms being allotted to have made contraventions, are corporate bodies and institutions and the question of their having indulged in any malpractices in getting the approval or sanction does not arise.”
It’s a bit complicated, I know.

This was exactly when his sons went into partnership with two mall developers. Sealing helped malls; Sons & Co raked in the bucks.

A friend and I sat down and translated it into ordinary English. Basically,

a. Even though in this present case the construction may be unauthorised and may not have the proper clearances, huge amounts of money have been invested and demolition is not the only option.

b. Unlike private individuals or private limited companies who have been allotted land and may have flouted the law, these allottees are corporate bodies and institutions and there is no question of their having indulged in any malpractice in order to get sanctions or approval.

The question of corporate bodies having indulged in malpractice in getting approval or sanction does not arise. So says the Indian Supreme Court. What should we say to those shrill hysterical people protesting out there on the streets, accusing the court of being an outpost of the New Corporate Empire? Shall we shout them down? Shall we say ‘Enron zindabad’? ‘Bechtel, Halliburton zindabad’? ‘Tata, Birla, Mittals, Reliance, Vedanta, Alcan zindabad’? ‘Coca-Cola aage badho, hum tumhaare saath hain’?

This then was the ideological climate in the Supreme Court at the time the Sabharwal “affair” took place.

It’s important to make it clear that Justice Sabharwal’s orders were not substantially different or ideologically at loggerheads with the orders of other judges who have not been touched by scandal and whose personal integrity is not in question. But the ideological bias of a judge is quite a different matter from the personal motivations and conflict of interest that could have informed Justice Sabharwal’s orders. That is the substance of this story.

In his final statement to the media before he retired in January 2007, Justice Sabharwal said that the decision to implement the sealing in Delhi was the most difficult decision he had made during his tenure as chief justice. Perhaps it was. Tough Love can’t be easy.

In May 2007, the Delhi edition of the evening paper Mid Day published detailed investigative stories (and a cartoon) alleging serious judicial misconduct on the part of Justice Sabharwal. The articles are available on the internet. The charges Mid Day made have subsequently been corroborated by the Committee for Judicial Accountability, an organisation that counts senior lawyers, retired judges, professors, journalists and activists as its patrons. The charges in brief are:

1 That Y.K. Sabharwal’s sons Chetan and Nitin had three companies: Pawan Impex, Sabs Exports and Sug Exports whose registered offices were initially at their family home in 3/81, Punjabi Bagh, and were then shifted to their father’s official residence at 6, Motilal Nehru Marg.

2. That while he was a judge in the Supreme Court but before he became chief justice, he called for and dealt with the sealing of commercial properties case in Delhi. (This was impropriety. Only the chief justice is empowered to call for cases that are pending before a different bench.) .

3. That at exactly this time, Justice Sabharwal’s sons went into partnership with two major mall and commercial complex developers, Purshottam Bagheria (of the fashionable Square 1 Mall fame) and Kabul Chawla of Business Park Town Planners (BPTP) Ltd. That as a result of Justice Sabharwal’s sealing orders, people were forced to move their shops and businesses to malls and commercial complexes, which pushed up prices, thereby benefiting Justice Sabharwal’s sons and their partners financially and materially.

4. That the Union Bank gave a Rs 28 crore loan to Pawan Impex on collateral security which turned out to be non-existent. (Justice Sabharwal says his sons’ companies had credit facilities of up to Rs 75 crore.)

5. That because of obvious conflict of interest, he should have recused himself from hearing the sealing case (instead of doing the opposite—calling the case to himself.)

6. That a number of industrial and commercial plots of land in NOIDA were allotted to his sons’ companies at throwaway prices by the Mulayam Singh/ Amar Singh government while Justice Sabharwal was the sitting judge on the case of the Amar Singh phone tapes (in which he issued an order restricting their publication.)

7. That his sons bought a house in Maharani Bagh for Rs 15.46 crore. The source of this money is unexplained. In the deeds they have put down their father’s name as Yogesh Kumar (uncharacteristic coyness for boys who don’t mind running their businesses out of their judge father’s official residence.)

All these charges are backed by what looks like watertight, unimpeachable documentation. Registration deeds, documents from the Union ministry of company affairs, certificates of incorporation of the various companies, published lists of shareholders, notices declaring increased share capital in Nitin and Chetan’s companies, notices from the Income Tax department and a CD of recorded phone conversations between the investigating journalist and the judge himself.

These documents seem to indicate that while Delhi burned, while thousands of shops and businesses were sealed and their owners and employees deprived of their livelihood, Justice Sabharwal’s sons and their partners were raking in the bucks. They read like an instruction manual for how the New India works.

When the story became public, another retired chief justice, J.S. Verma, appeared on India Tonight, Karan Thapar’s interview show on CNBC.

He brought all the prudence and caution of a former judge to bear on what he said: “…if it is true, this is the height of impropriety…every one who holds any public office is ultimately accountable in democracy to the people, therefore, the people have right to know how they are functioning, and higher is the office that you hold, greater is the accountability….” Justice Verma went on to say that if the facts were correct, it would constitute a clear case of conflict of interest and that Justice Sabharwal’s orders on the sealing case must be set aside and the case heard all over again.

This is the heart of the matter. This is what makes this scandal such a corrosive one. Hundreds of thousands of lives have been devastated. If it is true that the judgement that caused this stands vitiated, then amends must be made.

But are the facts correct?

Scandals about powerful and well-known people can be, and often are, malicious, motivated and untrue. God knows that judges make mortal enemies—after all, in each case they adjudicate there is a winner and a loser. There’s little doubt that Justice Y.K. Sabharwal would have made his fair share of enemies. If I were him, and if I really had nothing to hide, I would actually welcome an investigation. In fact, I would beg the chief justice to set up a commission of inquiry. I would make it a point to go after those who had fabricated evidence against me and made all these outrageous allegations.

What I certainly wouldn’t do is to make things worse by writing an ineffective, sappy defence of myself which doesn’t address the allegations and doesn’t convince anyone (Times of India, September 2, 2007).

Equally, if I were the sitting chief justice or anybody else who claims to be genuinely interested in ‘upholding the dignity’ of the court (fortunately this is not my line of work), I would know that to shovel the dirt under the carpet at this late stage, or to try and silence or intimidate the whistle-blowers, is counter-productive. It wouldn’t take me very long to work out that if I didn’t order an inquiry and order it quickly, what started out as a scandal about a particular individual could quickly burgeon into a scandal about the entire judiciary.

But, of course, not everybody sees it that way.

Days after Mid Day went public with its allegations, the Delhi high court issued suo motu notice charging the editor, the resident editor, the publisher and the cartoonist of Mid Day with Contempt of Court. Three months later, on September 11, 2007, it passed an order holding them guilty of criminal Contempt of Court. They have been summoned for sentencing on September 21.

What was Mid Day’s crime? An unusual display of courage? The high court order makes absolutely no comment on the factual accuracy of the allegations that Mid Day levelled against Justice Sabharwal. Instead, in an extraordinary, almost yogic manoeuvre, it makes out that the real targets of the Mid Day article were the judges sitting with Justice Sabharwal on the division bench, judges who are still in service (and therefore imputing motives to them constitutes Criminal Contempt): “We find the manner in which the entire incidence has been projected appears as if the Supreme Court permitted itself to be led into fulfilling an ulterior motive of one of its members.

The nature of the revelations and the context in which they appear, though purporting to single out former Chief Justice of India, tarnishes the image of the Supreme Court. It tends to erode the confidence of the general public in the institution itself. The Supreme Court sits in divisions and every order is of a bench. By imputing motive to its presiding member automatically sends a signal that the other members were dummies or were party to fulfil the ulterior design.”

Nowhere in the Mid Day articles has any other judge been so much as mentioned. So the journalists are in the dock for an imagined insult. What this means is that if there are several judges sitting on a bench and you have proof that one of them has given an opinion or an order based on corrupt considerations or is judging a case in which he or she has a clear conflict of interest, it’s not enough. You don’t have a case unless you can prove that all of them are corrupt or that all of them have a conflict of interest and all of them have left a trail of evidence in their wake. Actually, even this is not enough. You must also be able to state your case without casting any aspersions whatsoever on the court. (Purely for the sake of argument: What if two judges on a bench decide to take turns to be corrupt? What would we do then?)

So now we’re saddled with a whole new school of thought on Contempt of Court: Fevered interpretations of imagined insults against unnamed judges. Phew! We’re in La-la Land.

In most other countries, the definition of Criminal Contempt of Court is limited to anything that threatens to be a clear and present danger to the administration of justice. This business of “scandalising” and “lowering the authority” of the court is an absurd, dangerous form of censorship and an insult to our collective intelligence.

The journalists who broke the story in Mid Day have done an important and courageous thing. Some newspapers acting in solidarity have followed up the story. A number of people have come together and made a public statement further bolstering that support. There is an online petition asking for a criminal investigation. If either the government or the courts do not order a credible investigation into the scandal, then a group of senior lawyers and former judges will hold a public tribunal and examine the evidence that is placed before them. It’s all happening. The lid is off, and about time too.

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Monday, October 1, 2007

Selecting the right Oscar Entry :)

The movie Eklavya was selected by the Film Federation of India for an entry to the Oscars. The nearest competitor of a movie 'Dharm' has alleged bias and the Bombay High Court has decided to intervene. On the 30th of September, a division bench of the Court passed a order stating prima facie bias in the selection.

Hell! What's happening to our judiciary? The very idea of separation of powers seems to be getting diluted. I can just imagine if the matter goes ahead; the judges infront of a 70mm screen watching the movies and deciding the selection. :)

I have not seen Eklavya. I dont see many of these hindi movies. But I still don't think the Court should interfere in deciding whether an organisation's choice is right or not.

- Eklavya choice for Osacrs biased : HC- The Economic Times

- Eklavya for Oscars? Court to decide - The Hindu

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