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March 31, 2010

We are not criminals, says the LGBT community

DECRIMINALISATION OF Indian Penal Code 377 on July 2, and recent Supreme Court judgment to have ‘other’ category for lesbian, gay, bisexual, transgender (LGBT) communities in all government agencies is a justifiable judgment in the Indian judiciary and it deserves to be jubilated. But will this step bridge the gap? Will these communities enjoy all fundamental rights? Will they be not further harassed by police, public bureaucratic ants who put jaggery syrup on them and feast on them? These questions still need to be answered.

LGBT community in India has long borne the brunt of male chauvinistic and social prejudices despite the fact that India has a long 4000 years of third gender culture. They have been sacked by every shades of our society. They have been deprived of fundamental rights; they have been forced to show their genitals in the government medicals as if they are some museum display. They are forced to do sexual fervour to the police to keep them at bay.

LGBT community has become a vestigial part of our society. They have been rejected by our society which forces them to indulge in sex trade, dancing to feed their starved stomach. “If I would have been supported by my parents then I would not have been in this sex trade,” says, a LGBT individual of Andhra Pradesh. They have been struggling since their puberty, first by family, then by their own Indian society which proclaims itself as the spiritual leader in humanity.

After 62 years of independence their freedom is sacrificed at the altar of expediency. They are being branded as criminals.

It is high time now for all of us to understand the motives of the political, religious bureaucrats who manipulate us by misinterpreting the clauses of holy books and making us to desegregate-- so that their own vested interest is achieved. Let us peep behind the mirror and look that they are the same leaders who revolt in the name of humanity when some Indian is racially abused in Australia and surprisingly they themselves only motivate us to assault Indians inside India. By this act, are we not setting a shameful example of sheer democratic system of our country? Let us not replicate our morals of humanity by reasons of judgment. Let us ingrain our cultural values. If at all we have decided to condemn LGBT groups then let us first firmly erase the concept of ‘ardhanareshwari’ from our religious books. Let us not play anymore blame games or dramatise any law as we know they are not implemented. Let us not anymore fall victim in the hands of these spiritual, political gurus who are using us as the weapon of religion, law to colonolise us in our own society.

March 29, 2010

LATEST SUPREME COURT JUDGEMENTS

LATEST SUPREME COURT JUDGEMENTS

The forgotten Oriya hero

LIKE ALL self respecting people, Oriyas too take pride in their glorious past. We speak and write about our rich culture, tradition and art. But do we really and honestly remember and honour our forefathers, who sacrificed their lives or all the pleasures of life, just to see that their next generation could have a better life, live with dignity and self-respect.

We have, but all forgotten Pandit Nilamani Vidyaratna. He was a fiercely proud Oriya. He was born on 14 December at Banki, in a poor Brahmin family in Cuttack district. Handicapped with poverty and starvation, he completed his studies up to seventh standard. Hunger didn’t stop Nilamani Vidyaratna’s thirst for knowledge. At the age of only twenty three, he took the able leadership of editing Sambalpur Hitesini and was bestowed the prestigious tile of “Vidya Ratna” by Basudev Subdhal Dev.

He campaigned relentlessly against the government for replacing Oriya with Hindi as the official language. That was the point in his life when he dreamt for Orissa---Orissa as a separate province for his Oriya people. His only aim, the creation of Orissa and Oriya language, drove him mad. He worked tirelessly and gave vent to his passion for the creation of Orissa, through his literary works. The self imposed disciplined man of vision never compromised with his morals. He carried his struggle in the pages of his literary works which comprises of Indradhanu, Utkal Madhupa, Guna Darpan, Utkala Dipika etc. The man who shaped the destiny of Orissa is unfortunately lost in the pages of history.

Today, in the 21st century his identity is sinking in the ocean of modernization. Today he is only remembered on his birth anniversary and dealth anniversary and most of the time his memories just rest in old library shelves. On 14 December, 2009, the 142nd anniversary of Panditji was observed at Jaydev Bhawan, where the auditorium was packed. Many esteemed audiences were introduced to Panditji and his contribution to Orissa--- on the spot. But still they are proud to be Oriyas. Tears must have been rolled down from the spiritual soul in the heaven, when the announcer told that they struggled to find a photograph, that too a torn one, of Panditji, for the event which they later edited.

Now, Panditji must be questioning himself in the heaven? Who am I? Does Nilamani Vidyaratna only deserve an annual tribute by ministers on his anniversaries? Is it not the duty of all Oriyas to carry out his struggle for the development of Orissa --in a time when Orissa has been awarded the first prestigious position in poverty? We all celebrate first of April as Utkal Dibas, but do we really know that this Utkal was possible for “Utkal samilhani” formed by these selfless fighters. We have burned Panditji’s identity in the ashes of time, generation gap concepts and we all have become anomalies in the lap of change. Alas! We have all forgotten that ‘We are, because they were’.

Portrayal of violence on news channels

VIOLENCE IS never very far from our minds, it isn’t allowed to be. It is on television all the time for everyone’s viewing on our numerous news channels. It has become their favourite kind of news. India has 28 states and 7 union territories, and more than 18 major languages, and many many more minor languages. India has many religions and many castes, and all of them have innumerable festivals.

And still, what we see on news channel is not who celebrated what, but who killed who with what. Its not that violence should never be shown, but still, it shouldn’t be shown always. American boxer, Muhammad Ali had once said, “There are more pleasant things to do than beat people up,” but I think that to publish it all over the world, and that too not for spreading awareness but for gathering fame is the most unpleasant thing. Indian national anthem, ‘Jana Gana Mana’, was declared as the best national anthem in the world by UNESCO, but not even a speck of it was seen in the news channels. Of course they can’t collect everything, but there should be a separation between what is needed and what isn’t.

The peacekeeping mission initiated by the United Nations since 1948, started 186 new missions in 2008, but why was there not even a syllable of it in the news? All there could be seen was how two neighbors fought and killed each others in some godforsaken land. Everyone loves to see violence, I don’t say that I don’t, but still, if one does not see a thing for some time, he would obviously forget it.

Issac Asimov very correctly stated in his novel ‘Salvor Hardin’ in the series ‘Foundation’ that, “Violence is the last refuge of the incompetent,” but what I believe is that to spread violence, is the first move of the coward.

RTI: What is lacking, awareness or action?

WALKING DOWN the lane Jim saw a manhole, and said to Ted walking by his side that there was nothing commendable that the government was doing. They discussed it for over two hours stopping only when they saw a child fall in the manhole. It set Jim wondering if his doing something could have spared the child this hurt. But all he had done was criticize the government! The basic Indian tendency is reflected in this incident. After all the government has not landed from Mars, they are from amongst us Indians.

This implies that if we, as citizens of this country, say something to the government, indirectly, it is a question aimed at our own judgment. The UPA government has passed a law, 'Right to information' and yet the masses haven’t even been able to spread awareness amongst themselves. Passed in October 2005, it has come to the notice of people just lately, and I am sorry to say, but being an adult with a role to play in the future of the country, I was one of those many 'uninformed' people.

Generally, the laws and the bills passed through the governing bodies benefit the State. This act has been the first of its kind when the control is on the other side of the fence. Section 4 of RTI empowers a layman to simply barge into a government office and ask for “Inspection of Files”.

The recent years have seen a gradual rise in the number of ‘Suo Moto’ applications and a burgeoning enthusiasm and questioning power in the citizens. This has already proved a deterrent to many officials with intentions of corruption. The RTI process is very crystal clear in its terms, dos and don’ts. The Act allows you to apply for anything that you find is not going according to how it should be, you have to write an application to the authorities questioning them.

You can’t blame them for not doing a certain thing or doing it the wrong way. More than half the time, the officials distract you either by misleading information or by not giving it at all. The section 6 and section 4 give us the right to question and at the same time, section 8 regulates the kind of information you can ask for. Often the officials justify their “not giving the information” as threat to national security and integrity under section 8.

Another pull back baggage attached to the act is the application has to be very precise and must end within 150 words. If a person has a query that can’t end in 150 words, he can’t apply. After all this application sending and waiting period of some 45 days, if you still don’t get satisfactory justification, you can make an appeal to the appellate authority above that officer.

Masses have woken up to some extent and are waking up to the fact that if you don’t start questioning now, you will never get an answer. In Bangalore, Coalition against Corruption is a smaller but very effective effort undertaken by Guru Ravindranath. They have filed applications and even won a few of them. Pune is moving towards RTI through Intelligent Pune, a weekly. In Delhi, however, the approximation says that only one official was found guilty and was punished in last five years with a meager penalty of Rs.500. To add up to the misery of it all, the accused official himself confessed. But still the silver lining to the cloud appears each time a ‘Suo Moto’ is applied for.

March 25, 2010

The costs of justice

Paragraph 111 of this year’s Budget speech, which talked about the National Mission for Delivery of Justice and Legal Reforms, was overshadowed by other elements. Actually, there wasn’t much on this important component in the speech, beyond the statement that the government had approved the setting up of such a mission and that it would reduce court backlogs from an average of 15 years today to three years by 2012.

We were also told the 13th Finance Commission had approved Rs 5,000 crore for states to improve justice delivery. Let’s take the finance commission (grants in aid) first, noting that though the 11th Finance Commission did fund fast track courts, it is the Planning Commission’s responsibility to ensure fund flows for legal reforms. The timeframe for the 13th Finance Commission’s recommendations is 2010-2015 and we have an immediate disconnect between 2015 and 2012 mentioned in the Budget speech. How is this Rs 5,000 crore broken up?

First, Rs 2,500 crore will be provided to 14,825 morning/evening/special courts and shift systems and they will dispose of 112.5 million cases over a five-year period. That’s impressive and yes, there are successful experiments. The 13th Finance Commision notes morning courts in Andhra Pradesh and evening courts in Gujarat.

But will there be a general success template? Will we get special judicial or metropolitan magistrates for these courts? The finance commision suggests staffing by regular judiciary on payment of additional compensation. That’s unlikely to work. So, we effectively bank on retired judicial officers. More importantly, there is no guarantee those outcome targets will be met. The only check that exists is utilisation certificates and statements of expenditure under general financial rules.

Let us take 1,734 fast track courts funded by the11th Finance Commission. Not all money allotted was released. Not all money released was utilised. Why? Because state governments were lackadaisical about utilisation certificates. The prime minister told us this in April 2007 in a speech to the chief ministers and chief justices of high courts. Between 2000 and 2005, fast track courts disposed off 8,00,000 cases. When the 11th Finance Commission gave the money, they were expected to dispose off 5,00,000 cases every year. Second, 13th Finance Commission has given Rs 600 crore for alternative dispute resolution (ADR) centres (one in each district) and Rs 150 crore for training on ADR to judicial officers and advocates. Third, there are Rs 100 crore for the Lok Adalat scheme. That’s not a great deal of money. But we should note that the success of lok adalats hasn’t been phenomenal. The 13th Finance Commission expects 0.75 million cases to be disposed of between 2010 and 2015 because of this incremental initiative. Existing lok adalats dispose of roughly a million cases per year. Fourth, Rs 200 crore have been provided for legal aid. Fifth, there are Rs 250 crore for training of judicial officers. Sixth, there are Rs 300 crore for State Judicial Academies. Seventh, there are Rs 150 crore for training public prosecutors. Eighth, there are Rs 300 crore for court managers, feeding into the proposed National Arrears Grid. Ninth, there are Rs 450 crore for heritage court buildings. Finally, there is a little bit more, conditional on states formulating litigation policies.

A finance commission isn’t the primary channel for addressing justice delivery issues. But, as the above listing indicates, on this, the 13th Finance Commission has used a shotgun, in the hope something somewhere sticks. The implicit suggestion in the Budget speech that the 13th Finance Commission will help reduce average duration of cases to three years by 2012 is unwarranted.

Perhaps the other element in the speech, the national mission, will ensure this. It is laudable that under the present law minister, “timely justice for all” is now on the reform agenda and this mission is described as a blueprint for judicial reforms. In specific terms, elements in this blueprint are the following:

(1) Set up a special purpose vehicle (SPV) under Societies Registration Act to implement the action plan;

(2) Create a national arrears grid;

3)Formulate a national litigation policy at the Centre and in the states, to curb government litigation;

(4)Establish an all-India judicial service;

(5) Increase sanctioned strength of judges by 25 per cent;

(6) Appoint ad hoc judges on contractual basis;

(7) Create a national pool of judicial officers from retired judges;

(8) Speed up appointments of judges;

(9)Raise the retirement age of high court judges;

(10) Fast track specific cases;

(11)Get the Law Commission to examine changes required in statutory law, especially criminal law ;

(12) Improve case management;

(13) Use ADR for civil cases and plea bargaining for criminal cases;

(14) Use ICT, video conferencing and e-courts;

(15) Implement national minimum court performance standards; disposal should increase from 60 per cent of case load to 95-100 per cent in three years, not more than 5 per cent cases should be more than five years old.

Beyond the SPV, national arrears grid, national litigation policy and the idea of periodic reports to the PM (and public), none of these ideas are new. Nor can they be objected to. Within court structure proper (ignoring quasi-judicial forums), we now have a pendency of 29.1 million — 47,000 in the Supreme Court, 3.7 million in the high courts and 25.4 million in the lower courts. An appalling 5,30,000 cases in our high courts are more than 10 years old and we no longer seem to have age-specific data for the lower courts. Two-thirds of this pendency are criminal cases (concentrated in the lower courts.) It goes without saying that this isn’t tenable. Since criminal law falls under the home ministry and reforms in criminal justice are also contingent on police reforms, is the system likely to become credible by 2012?

Consider also the costs of improving legal infrastructure. There are different ways of working out the required number of courts/judges, judge-case ratio and judge-population ratio. Whichever way this is worked out, we are talking about 20,000 more courts and 40,000-60,000 more judges. This requires fixed costs of at least Rs 80,000 crore and annual running costs of at least Rs 1,60,000 crore. Finance commissions don’t dish out that kind of money. The Planning Commission does, but that is (since 1993) through a centrally-sponsored scheme, where 50 per cent of matching grant is provided by the states. While increasing courts/judges is not the only solution, it is an integral component.

Indeed, if the legal system becomes more credible, more people may resort to courts. The simple point is: reducing pendency has large costs and because of fiscal constraints, both the Centre and the states are unwilling. Therefore, we are tinkering with what seem to be low-cost solutions (lok adalats, people’s courts, women’s courts, family courts, ADR, mobile courts, shift systems, fast track courts, panchayats, gram nyalayas, ICT). This makes the 2012 target even less credible.