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August 09, 2012

A Common man's Approach


I am a very ordinary citizen, a lawyer, who hardly have any cases and tries to meddle with the law of the land, and have not really asked for many rights from anyone leave alone the government. Have always tried to be as good a citizen as can possibly be while trying to mind my own business, paying my taxes and bills on time.

And surely I'm not the exception. In this vast democracy of usually law-abiding citizens, people as a rule do not actually dare to meddle with anyone's affairs anyway. We are conditioned very early in life to rest assured that no harm can come to us because we are lucky to be born in a democratic country, where the Constitution has promised us some basic fundamental rights.

Those who do not have the first hand knowledge and experience with the working of the system, believe in this sacred sermon, but are surely and sadly indeed, in for a shock at their first brush with the law and judiciary.

There have been numerous instances where law and order has shown itself to be in a state of decay. Here I am not talking of how inefficiently both NDA and UPA governments have been tackling the terrorist menace. With absolute power at their disposal, they let themselves appear as sitting ducks, saying shamelessly that there cannot be a foolproof system to check terrorism. I put on record that I am not satisfied with this lame excuse. But for the moment let that be.

Just days back the nation saw a wailing mother who had lost her son because the child could not get medical aid on time. This was beacuse the road and traffic was blocked for the Prime Minister and his entourage to pass.

I could not bear to see this piece of news on television, but in the evening Sardesai and Vikram, on their respective channels, sat dissecting the unfortunate event, the guests even putting "ifs" n "buts" to the story, saying "...if this is true..." etc etc...

Can there be more cruel heartless rogues than in the bureaucracy and the corporate world?

What happened to IndiraJi or RajivJi inspite of all the security?!!
And Madhavrao Scindia, Rajesh Pilot and some others like them? Are we to believe that they were killed in accidents?

I don't think anyone from among the common people going about their daily routine, has the time or the inclination to see which VIP or V VIP is going in which car. The best security measure for our endangered political class would be to travel silently in an ordinary Maruti 800 without fanfare. And also dress up like normal people.
Let the PM, CM and such other VIPs who call themselves the peoples' representatives also experience traffic snarls and potholes. At least the wait at a signal would perhaps introduce them to the people they represent.

Also let me be a little blunt and ask a question that nags each one of us:
Has a PM, CM or other VIPs come to live eternally on this planet?
And if one day they also have to die why are they so scared? Why do they make others die instead of them?

Rules should be for the smooth running of the system, and to ease the peoples' distress. But usually, under the pretext of following rules and abiding by the law, the common man is thoughtlessly harassed, be it at traffic signals or various government offices, making him distraught and disillusioned.

My friend's cousin son's name has been entered wrong in his class XII marksheet. To just get one word corrected the boy and I have been running from pillar to post for the last one year, and the officers admit that it is a genuine case, but they cannot help, "rules have tied our hands", says the senior most officer who now has to sign the papers. So I am back to square one and do not know what to do.

It is time we become more practical and instead of asking for new rules and laws, let us ask for the existing ones to become more friendly to the common man. And then let these better laws be implemented too in the right spirit. The basic question that needs an urgent answer is:

Are the laws there to kill and trouble the people or to save their life, property and honour and to help them live in peace?

August 06, 2012

Draconian Laws

The debate between draconian laws like POTA, AFSPA and MCOCA has been going on for quite a while and they go against Article 21 of the Indian constitution which is RIGHT to LIFE.


The ACTS like POTA (Prevention of Terrorism Act), AFSPA (Armed Forces Special Powers Act) and MCOCA (Maharashtra Control of Organized Crime Act) are considered unconstitutional and draconian which violate human rights.

AFSPA gives the armed forces wide powers to shoot, arrest and search, all in the name of "aiding civil power". AFSPA violates Article 21 – Right to life. Under the Code, the armed forces have no grounds on which to justify their broad powers in the North East.


MCOCA is limited to Maharashtra. It came into force to effectively control the “organized” crimes as unlawful elements disseminating terrorism in the society can be checked and it will go a long way in minimizing the teeing of fear in the society.

The reasons why these laws are opposed are: First, the section that makes confessions of the accused before a police officer admissible as evidence in the court of law but not before police under IPC. The second is the harsh provision regarding bail. In the tightrope between security and justice, these laws allow the police or forces to become lazy. Instead of being patient and doing rigorous investigative work that will put away actual perpetrators, they just catch anybody they like. The State is not enjoined to be careful. The Police and Armed forces when operating under laws like TADA, POTA, MCOCA or AFSPA take action with the certainty that they are immune from the reach of the law, making them more casual, violent and atrocious.

Under these special acts, people are also denied equality before the law, apart from right to life. Also, women have been victims of rape, molestation, torture by the CRPF jawans. In Andhra Pradesh, Chattisgarh, Jharkhand, West Bengal and other states the armed forces accused civilians as naxalites and carried on fake encounters.


Apart from the civilians, people who have opposed these laws include Binayak Sen, T.G. Vijay, A.Y.Babu, Lalit Mehta, Mahashweta Deviand Irom Sharmila (8 years in prison and force-fed through a tube). The only way out is to repeal the AFSPA, POTA and MCOCA in order to remove the Military, Police, BSF, CRPF and Home guards from playing a civil role in the region.

Complete transparency should be established so that a public accountability is rendered possible. These laws have not only violated the basic human rights of the citizens but have failed to solve the problems of terrorism. Such laws increase the cycle of hatred and violence. Not only activists but state entities as well are concerned about human rights violation by the state. The only true way to fight terrorism must be to work closely with the community, rather than illegally detain people on the basis of their religion, status, or political affiliations.

Judicial Accountability Bill

It is an established and well-known fact that the judiciary has been more than effective by making strict-most strictures - also against the legislature and those in legislature, the members of which are presently are deep rooted in our corruption-prone system lacking morality.


The Bill should also make the retirement-age for High Court judges the same as that of Supreme Court judges to utilise full services of honest and deserving judges till the ultimate retirement age to remain in judiciary, though at High Courts. Such a provision will abolish lobbying to reach Supreme Court just for increasing tenure in judicial life.


However, the lengthy procedure involving various channels in between such as Scrutiny Panel, Oversight Committee, Presidential reference, Parliamentary Committee and then the cumbersome Parliamentary procedure to get rid of guilty-found judges with penal provision for complainants will provide no reform other than to frighten those making even genuine complaints against judges. There are sufficient existing provisions to take care of frivolous complaints that too with provision in-camera proceedings for probing complaints. Only remedy is to set up a permanent National Judicial Commission (replacing both Scrutiny Panels and Oversight Committees) with retired Supreme Court judges as its member-nominees of the President, Prime Minister, Opposition Leader, Chief Justice of India, Bar Council with Chief Vigilance Commissioner as ex-officio member.

Commission’s recommendations should be final and sufficient for President of India to order removal of judges found guilty - apart from confiscating wealth and assets of such judges and their family-members. Rather, such high-powered Commission should be empowered to recommend judges for High Courts and Supreme Court.


Even all judicial panels and commissions formed by Union or state governments should be constituted by such a National Judicial Commission to ensure impartial and unbiased investigations. Presently, political rulers appoint retired judges of their own choice and ideology to get a rubber-stamp endorsement of their working by a judicial panel. All judges in High Courts should be compulsorily appointed from outside their home-states to effectively check approaches and influences on locally-appointed High Court judges through their relations and former bar-colleagues. There should be provision for video-recording of courts’ proceedings for multiple advantages including speedy and fairer courts’ proceedings.

August 03, 2012

THE ANNA EPISODE

|| THE ANNA EPISODE ||

Over the past 4 days, many people have asked me what I thought of the Anna Hazare movement and the kind of national fervour it generated. I was also asked whether I supported it. My blatant ‘no’ to the second question has raised many a brow. As the great Indian episode settles down, at least for the time being, and people celebrating over the ever-denying government turn back to
their normal routine, I would like to take this opportunity to defend my stand.

But before that, let me reiterate that the views expressed here are my personal.

It struck me on wednesday, the 2nd of August, while I was still recovering from a sudden ringing of the phone, which cut short my uneventful night’s sleep.Still scratching my head, and yawning, I reluctantly put on the television, which showed a septuagenarian in a white khadi dhoti-kurta. This old man, for my memory could not help beyond this, is a Padma award-winning social activist, best known for his contribution towards the upliftment of his native Ralegan Siddhi village in Maharashtra and establishing it as a model village. I Salute him for this noble effort.

So what’s the fuss all about this time around, I asked myself. This time he was campaigning against corruption. He demanded that the government pass the Lokpal, or the public ombudsman, Bill—a draft that has been in limbo for around four decades now—in order to eradicate corruption.

The country has witnessed rampant corruption—the Adarsh Society scam, the cash-for-vote scam, the CWG scam, and the mother of all, the 2G scam—the combined magnitude of which, even by Indian standards, was unprecedented.

I followed the non-violent protest by the so-called Gandhi version 2.0 on my TV and through newspapers. I could see the entire nation participating, TV channels going berserk in a race to go one-up.I also saw young kids from schools across Delhi participating live and talking about bringing change, change in the governance. I saw an old man, sitting in the front row, fasting, joining the cause. I also witnessed people conducting a candlelight vigil shouting Anna Hazare zindabad and Vande Mataram, reflecting the emotions of scores who were doing the same at the India Gate. A scene from the 2006 movie Rang De Basanti flashed by.

I think the recent happenings across the world and my constant following of those were one very prominent reason. For India is not Japan. Ever since the recent earthquake—followed by a tsunami and a nuclear crisis, the worst disaster since the World War II—rocked that nation, the Japanese are trying hard to rebuild. No hoarding of food, no looting has been reported yet. In the community shelters they share, no Japanese encroaches more than two-and-a-half-odd feet she is entitled to. Even while searching the debris to find something they can recognize, if they find valuables that don’t belong to them, they are handing it out to the cops. It’s impossible to think of such feeling of society over individual in our country where, worshipers bribe the pandas at temples to beat the queue and have darshan through a secret passage. Or where people jump the line at various ticket counters, pushing there way through and making an entirely new queue.

So far as corruption goes, let’s face it, it can’t be eradicated. For a society to be corruption-free, it has to be a Utopian world which, in practicality, is impossible. For there will be a certain someone, who will be greasing the palms of some babu or the other, to get her work done swiftly, or in the way she wants to. And let’s face the fact that we cannot change that.

These basic problems apart, the so-called movement itself was not completely flawless. Commentators have discussed in length the implications of this fast-until-death strategy, its pros and cons, and certain experts have called it emotional blackmailing where democracy and freedom are held hostage by its practitioners.
What if tomorrow my sweeper goes on the non-violent fast-until-death or till I meet her demand for a sari and a couple of thousand of rupees as a Diwali bakshish?

Jokes apart, there are bigger problems at hand. The way I can it, this menace called corruption is more rampant in the public sector than the private sector. The reason: the sarkari babu thinks that the job has come to them with their dowry. It doesn't matter whether they work or not, no one’s baap can question them, let alone suspending them. Honestly I have known such babus who can’t write a single word correctly without dictation. The office for them is their garden or, at times, their spittoon, and the office hours, long periods of leisure.

It’s this attitude that relegates work to the last in their list of priorities. And it’s then that the common man has to run over and over again to these offices and persuade these babus to do what was supposed to be heir duty. This persuasion translates into some currency notes, denominations of which depend upon the nature of work.

Why then can’t the government simply put into place a system, which can check the productivity of a sector and the individuals who make it, and then take proper action against people found guilty of ignoring their work. But of course, for that the government needs to wake up from its deep slumber.

I am glad that this idea has at least found a place in the wish-list of the agents of change. That brings me to the role these agents will have to play in order to bring about the change, and their authenticity and commitment.

The biggest agents of change, however, were the young people participating in the protest. But what gets me worried is the participation of young school kids. It’s hard to imagine how much the children, still in their early teens, would understand about governance. After a day of protest-cum-picnic, over a couple of choco bars, they will be content with their pocket money of a couple of hundred rupees and pizza parties at friends’ place over the tunes of Akon or Lady Gaga.

Honestly, though I would be sounding pessimistic, what is the guarantee that this Bill. What are the chances that, while taking a decision on some case, the members of this committee—who are advocating the Bill’s passage—wouldn’t be bribed? For humans are susceptible to corruption as bees to nectar.

And again, in case we really want to change things, the first change has to brought within ourselves. Because, it's the corruption of thoughts that lead to other forms of it. And unless we learn to practice that sort of discipline in our daily lives, it's a waste of time to talk about any other change. For the way I see it:

ISS SADAK PAR DUR TAK KICHAD JAMI HAI
HAR KISI KA PAON YAHAN GHUTNO TAK SANA HAI...

August 01, 2012

How are legitimate citizens converted into public enemies ?

On June 26, as we remembered the clamping down of the internal Emergency on the people of the sovereign democratic republic of India 38-years ago, why is that our thoughts turn, almost as if drawn by a magnet, to the history of jurisprudence in the city of Allahabad?


The dark history of the Emergency, a time when all civil and constitutional freedoms stood suspended, was triggered by a series of events in the corridors of the Allahabad judicial establishment - a time when the judiciary elected not to oblige the political establishment, and countermanded the irregular election of the politician laying claim to the highest office in the country. Although the entire country underwent a trial by fire after this, the Indian public institutions, especially the judiciary gained hugely in terms of its reputation for independence and fearlessness.


Today, it is another judgement coming out of the judicial corridors at Allahabad that has us mesmerised, and this time for different reasons. The conviction under sections of the IPC and UAPA of Seema Azad and Vishwa Vijay and the sentence of life imprisonment given to them earlier this month has sent shock waves among Indian citizens not because these two were special people in any sense. Many of us did not know them, but their arrests, trial and conviction has once more highlighted the malevolent way in which the internal security laws like the Unlawful Activities (Prevention) Act (UAPA) are used. More frighteningly, this has demonstrated the close nexus between the prosecuting agencies and the judicial system. The independence of the judicial process on which we once prided ourselves is nowhere in evidence.


The lengthy judgement convicting and sentencing Seema and her husband on charges of waging war against the State rests on the evidence of 14 witnesses, 12 of whom are police personnel involved in their arrest and its documentation, and two others are officials belonging to the telephone department. There is not a single public witness, and in a sense this is fair enough because there is nowhere any mention of anything to be witness to. No act of violence or criminality is alleged anywhere, in which they are supposed to have been involved. The items seized from them and sealed after their arrest have been illegally opened in the police station ‘for inspection’, and they are assumed to be responsible for certain literature that is critical of state policy only on the grounds that this was found in their house. Nowhere is there any specific act or deed that endangers the state even attributed to them, and their conviction on serious national security charges is entirely on the basis of generalities. The court’s conclusion can only be explained by the fact that the court refused to assume the innocence of the accused.


The judgment pronounced by the sessions court at Allahabad in the case of Seema Azad and Vishwa Vijay is a perfect example of how, in the name of combating terrorism or Maoism, a large number of halftruths, inadmissible evidence, procedural violations and a paranoid piece of legislation can convert legitimate citizens into public enemies. The implied embargo on reading critical literature goes against the spirit of our Constitution. If judicial pronouncements of this nature are allowed to pass into the realm of acceptability, we are really at the beginning of a second National Emergency, with our rights and spaces suspended. The Indian people will no doubt resist this attempt to curtail their constitutional rights; but this time round, do we have the judiciary with us in our struggle?