The brawl between police officers and lawyers over a parking lot was the manifestation of a misplaced sense of entitlement at work. The episode should lead to corrective introspection
Submission to an inviolable sense of justice, order and probity ought to be at the heart of professionals rendering policing and legal services to society. The nobility of purpose in both these professions mandates a certain code of conduct and ethics that posits the responsibility to the citizenry at large and, thereby, the nation. Many such mandates have been legislated, ingrained and templatised in the form of standard procedures, processes and even uniforms that they bear with aplomb and responsibility. The allegorical personification of Lady Justice (originally Lustitia, the goddess of justice in the Greek mythology) with a blindfold, a balance and a sword is deeply symbolic of those who uphold its tenets as protectors of justice.
Similarly, the khaki uniform of the police personnel is freighted with the citizen’s charter that explicitly seeks, among other things, the “maintenance of law and order in civil society” as a common bond between the two services. Many illustrious lawyers and policemen (and policewomen) have conducted themselves with the highest dignity, civility, service and personal sacrifices that have been the pride of the society and the nation.
Yet, the unfortunate spectacle of the violent clash between policemen and the lawyers at the Tis Hazari court in the national capital shamed the edifice of justice, which is the shared responsibility of these two callings. In an age of reckless social media, the free flow of visuals of the fights, accusations and the public protests was a reflection of institutional breakdown at various levels.
The immediate impact of this wholly avoidable fracas goes way beyond the perceptions about these two professions. It speaks volumes about the institutional one-upmanship, prevailing societal anger and above all, a misplaced sense of entitlement that some individuals may carry — all of which could taint the entirety of their services. For the sake of national security and order, institutional blame-game must be contained with immediate effect. The High Court-appointed judicial inquiry must ascertain individual acts of misdemeanour and those involved must be punished, irrespective of their professional callings.
However, the lazy and wanton lust to sully the reputation of either of the institutions can have unfathomable repercussions that the nation can ill-afford, given that both are unique and irreplaceable services, often the only source of ensuring justice to the citizenry. To that extent, the act should be treated as a matter of individual (at best a group of individuals) culpability or complicity as opposed to a situation where the top-brass of either institutions lock horns on behalf of their colleagues. The fact that the violence was triggered by a seemingly innocuous dispute over a parking space reeks of ego, vanity and a sense of fiefdom that was involved. The proverbial “turf-war” further eroded the citizen’s waning trust, faith and decorum about governmental and judicial arms, who are in dire need for reforms and reassurances.
In the melee of excesses was the regrettable irony of the Delhi Police’s motto of “Shanti, Sewa, Nyaya” (Peace, Service and Justice) or indeed, the fact that the lawyers are the ultimate restorers of the law of the land. The hapless citizenry could only mull and reminisce their own experiences at the hands of either of these two.
Such incidents also give a parallel vent to latent concerns that have remained unaddressed for far too long but contextualising the same to this incident is to distract from the immediacy and specificity of action. The unwarranted politicisation of the incident, with political parties assuming positions that suit their immediate narrative, can only fan the fire. Sane voices, who are either in positions of seniority in the respective hierarchies or those who have retired from official service, would do yeoman service by insisting on isolating the individuals concerned in the violence, as opposed to taking institutional positions.
Other collateral concerns like work conditions and officer-soldier relationship in the police among others, however true and important in their own right, are a matter of separate enquiry and resolution. In fact, there has been a plethora of committees and commissions that have identified various reforms pertaining to the efficacy of the judicial and policing services. Unfortunately, political will has been lacking and even institutional lethargy to undertake the recommendations made by experts in the field.
A more reassuring arm of the Government has been the armed forces. The principal factor for this has been the relative isolation from the politicisation of its environment, functioning and ethos. In cases of individual culpability pertaining to the rare wrong-doings of a soldier of the armed forces, care is taken to isolate them from institutional framework as discipline cannot be compromised.
Discipline, leadership and soldiering ethos are made to walk the talk in the armed forces. The finest example of this is the “officer-to-soldier” fatality ratio, which is the highest for any military in the world. It is the professional culture and standard that are at stake when murmurs abound of creeping politicisation even in the armed forces.
The onus is on the Government to contain this incident with speedy intervention, resolution and then usher in the much-delayed institutional reforms. No society can thrive where a revenue officer is burnt alive during the conduct of his/her duty, where police-lawyers vandalise public property, where policemen in uniform protest raising slogans, where suicide attempts for justice by lawyers are made. Indeed, forgotten from the recent limelight is the unprecedented tragedy of the war heroes of the armed forces sitting on roadside, asking for what was rightfully promised in OROP.
There is certainly a power play of institutional relevance, elbow-room and assertion at play. The fight over the parking lot was symbolic of the misplaced sense of entitlement that is at work with a few that shame their own institutions. This incident should lead to corrective introspection and cooling of tempers as opposed to a field day for those who have vested interest in TRPs, partisan concerns or perpetuating the existing systemic rot.
Writer: Bhopinder Singh
Courtesy: The Pioneer
President’s Rule in Maharashtra must be shot down by the SC. Elections are a costly affair and a poor country like India can ill-afford frequent polls
In my opinion, the recent imposition of President’s Rule in Maharashtra under Article 356 is unconstitutional and needs to be declared as such by the Supreme Court (SC). In the recent elections to the 288-member Maharashtra Legislative Assembly, the BJP got 105 seats, the Shiv Sena got 56, the NCP 54 and the Congress 44. Although the BJP and the Shiv Sena had fought the election in alliance, after the poll it fell apart on the issue of power-sharing. No single party got a majority in the House and no alliance could be formed claiming a majority. Hence the Governor of the State recommended President’s Rule, which was imposed. Now, a similar situation had arisen in Uttar Pradesh (UP) in 1996 where also President’s Rule was imposed soon after the Legislative Assembly elections for the same reason, viz no party, nor combination of parties, had a majority in the House.The imposition of President’s Rule was challenged in the Allahabad High Court (HC) and a full Bench of the HC, of which I was a member, held the imposition unconstitutional, vide HS Jain vs Union of India case.
The reasoning which the full Bench gave in that case squarely applies to the imposition of President’s Rule in Maharashtra too and it was this: “It has been held in the authoritative judgment of the Supreme Court in Bommai’s case, (1994) 3 SCC 1 (in paragraphs 109, 120, 383 and 391) that imposition of President’s Rule should not be resorted to unless all other recourses have failed.”
In paragraph 112 of my decision, I observed: “The Governor should have sent a message to the House under Article 175(2) of the Constitution, after summoning it under Article 174(1) stating that despite his best efforts he was unable to find out who can command the confidence of the House and hence the House itself should inform him about such person. The Governor in this message should have asked the House to assemble and decide the matter within a reasonable period of time and then inform him. In this message the Governor could have also warned the House that if it did not make up its mind within a reasonable period of time, the House may have to be dissolved.” In paragraph 128 of my decision, I observed that in case of a fractured electoral verdict, where no party or combination of parties appeared to have a majority in the House, “the only legal alternative left for the Governor is to ask the Assembly to inform him about the person in whom it has confidence. Who can be in a better position than the House itself to inform the Governor in whom it has confidence?” And in paragraph 131 of my verdict I stated, “Although this course of action has not been expressly mentioned in the Constitution, it logically flows out of Article 164(2) and is the only democratic alternative short of dissolution. In today’s era of fractured verdicts, it is the only logical method.”
I referred to Article 6 of the Japanese Constitution which states, “The Emperor shall appoint a Prime Minister as designated by the Diet” (the Japanese Parliament is called the Diet) and observed “Although we do not have a similar provision in our Constitution, while judicially interpreting it we can borrow from the democratic spirit of the Japanese Constitution.”
Thus, when the Governor of Maharashtra could not find any party or combination of parties, which appeared to have a majority in the Assembly, before recommending imposition of President’s Rule he should have sent a message to the House under Article 175(2), after summoning it under Article 174(1), asking the House to assemble, deliberate and then inform him within a reasonable period of time in whom it has confidence, so that he could be appointed Chief Minister.
In Bommai’s case it was held that imposition of President’s Rule was a very serious step and was a last option, to be resorted to only when all other recourses failed. In Maharashtra, as in UP in 1996, there was an option left, as referred to above. Hence without resorting to it, recommending imposition of President’s Rule straightaway was clearly unconstitutional.
Some people may ask what use such a step would have been when the political leaders were unable to come to a compromise?
The answer was given in paragraph 134 of my judgment. “In my opinion, if the elected members are permitted to come together and meet in the House, then a Socratic debate may take place and it is possible that a solution may emerge. When two or more persons are sitting separately they may not be able to resolve their differences but when they come together it is possible that by discussions and negotiations some compromise may come about. This is the democratic method also. The elected representatives may put pressure on their leaders to give up their intransigent and uncompromising attitude and adopt a more flexible approach.”
It must be remembered that elections are a costly affair and frequent polls are a recourse which a poor country like India can ill-afford. Also, frequent elections were one of the causes of the collapse of the Weimar Republic and Hitler coming to power in 1933. Hence every effort should be made to avoid them.
If elected representatives are not allowed to meet in the House, should they meet in a tennis court, as happened in France during the French Revolution of 1789?
Writer: Markandey katju
Courtesy: The Pioneer
Following the suspension of a prominent lawyer’s account, liberals ask if Twitter is wrong
There is a problem with both sides of the narrative in the media nowadays. They both are so extremely wedded to their views that they refuse to even concede a point to their opposition. And that becomes relevant when it comes to social media as well. The suspension of a prominent lawyer on Twitter has several commentators of an allegedly “liberal” nature hopping up and down screaming censorship and calling for the platform to be either monitored by the Government or rescinding the suspension of the lawyer. The user himself has filed a petition in court demanding that Twitter reinstate him and asked, ironically given his positions on several issues, for support from the Indian Government. One can rest assured that this is unlikely to happen. However, this brouhaha raises a pertinent point. While all internet services have their specific “Terms of Service” under US law, when they start serving a critical function in another country and another jurisdiction, who is liable for what? Who determines hate laws and freedom of speech?
Is Twitter commentary protected by the US’ First Amendment or is freedom of expression restricted as per the Indian Constitution? Frankly, these are unlikely to be answered by the courts in India in this particular case though increasingly it is becoming apparent that the Indian Government is reining in the Wild West. Foreign technology companies have so far operated on Indian soil with impunity, and the companies themselves, while being asked to bend, appear to be keeling over, fearful that access to 1.25 billion consumers might be cut off. A few things have to be kept in mind. India does not, as mentioned, have absolute freedom of expression with some ridiculous provisions in the penal code as well as the hysterical concept of criminal defamation. India might have a right to privacy but it has been a nation paranoid about security issues since the Sikh militancy and frankly, the entrenched security establishment has no idea how to deal with technology. Switching en masse to another service by those of a certain persuasion will not help either since that will be like moving from one echo chamber to another, but most likely any alternative service will have to adhere to Indian rules. That said, it would be good if Twitter, Facebook and other services were more open about their arbitration processes of dealing with suspensions and content takedowns. As for those on social media, while criticising the Government is warranted quite often, making fun of those of the opposite persuasion is trolling, no matter how smartly you wrap it.
Courtesy: The Pioneer
Sweeping changes in the judiciary are must in order to modernise it so that it can provide timely and affordable justice
When it comes to assessing governance, it is usually the performance of the Executive and the bureaucracy that is scrutinised by the media and experts. But a sound, effective and independent judiciary is equally important in a country to protect the constitutional rights of the people. The hallmark of an efficient judicial system is how fast it delivers justice. Today more than 3.5 crore cases are pending in Indian courts and the number is increasing every year almost at the rate of 9.7 per cent. In the Supreme Court (SC) alone the number of pending cases as on July 2019 was 58,669. The Chief Justice of India (CJI) took up the matter with the Prime Minister for increasing the retirement age of judges to deal with this backlog. Though this idea might have some merit, the real issue, however, is the absence of quick, affordable and accessible justice for a vast majority of our people. The causes of pendency are also the way our judicial system functions. The Government must seize this opportunity to discuss with an open mind the restructuring of our faltering judicial mechanism so that a futuristic, natural justice regime is created which is quick, fair and affordable not only at the district level but right up to the apex court.
On many national issues of public interest, the judiciary has come to the rescue of citizens, right from enforcing fundamental rights to ensuring conservation of the environment, protecting the basic features of the Constitution, independence of institutions and also firmly correcting aberrations in discharging duties as per the law by the executives and primarily the bureaucracy. However, the moot question is why the judiciary is perceived to have failed on the issue of providing quick access to justice to commoners. The cost of getting justice is very high, cumbersome and time consuming and powerful people get away with their misdeeds in many cases. Therefore, there is a need for sweeping changes in the judiciary in order to modernise it so that it can provide timely and affordable justice by mirroring the needs of present day society.
On visiting a court, the first impression is that getting justice is a tedious process, especially in civil suits, due to constant delays in court proceedings. The law and its interpretation is so cumbersome that in frustration many people leave their fight midway and the rich and powerful who can afford costly advocates get their way. This is particularly true in case of property disputes among close family members. Here the law, instead of finding contours of natural justice, gets trapped in the nitty-gritty of interpretations.
During the early eighties, judicial reforms brought many tribunals into existence so that domain expertise is used in handling cases on specific subjects along with judicial scrutiny and in order to give quick delivery of justice and to reduce the work of High Courts. Many tribunals however, have become the biggest impediments for justice in many cases. Take for instance the National Consumer Dispute Redressal Forum (NCDRF) and the Central Administrative Tribunal (CATs). These bodies constituted under two different Acts of Parliament, have become another sinecure for retired judges and a few bureaucrats. They are the antithesis of the purpose they were set up for, holding up cases for many years. There is a case being heard in the Bench of a retired bureaucrat in the NCDRF for the last four years against the Amrapali Group in Noida. The member is extening dates after dates with a gap of 10-12 months and it seems like he is helping the builder more than the litigants. Interestingly, the same issue is being heard by the SC and the consumer forum should have closed the case as its decision had been overridden by the apex court in any case. The situation is no different in CATs. In the Guwahati CAT, the simple case of one officer has not been decided for the last seven years as the members are either on leave or keep postponing the matter on flimsy grounds. Needless to say, the officer is suffering. The Law Ministry should appoint a committee to examine if the purpose of creating these bodies is achieved. There may be umpteen cases which can be cited to invoke the conscience of our SC and the Government to see if the country can review its legal framework and at least simplify it in many cases. The judiciary must evolve a protocol so that judges decide the cases within a time limit and develop a mechanism to quickly deal with intricacies of cases. Another issue is of providing judicial assistance and the exorbitant fee charged by lawyers. It should also be examined if the profession of judges could be separated from lawyers. It will bring more professionalism and effectiveness into the system. For tribunals and other such bodies, only serving judges should be appointed so that they are accountable for what they do. However, the SC should constitute a panel of experts of domain knowledge to assist the judges on subject matters if the need arises. Hope this piece can attract the attention of the CJI, the Prime Minister and the Law Minister and spur some thinking on the issues raised here.
Writer: VK Bahuguna
Courtesy: The Pioneer
It would be easy to attribute such mindset to the resurgence of revisionism or a stoking of primal instincts. But male behaviour in this era is linked to political contexts
Enough has not yet been said of the brutality of the “One India” narrative and the brazenness with which it legitimises the lowest common denominator of societal attitudes and a viral thinking. Two incidents over the last few days embody a deeply disturbing and distressing fallout of the muscular leadership in the political space degenerating into gender triumphalism in the social space. One that automatically assumes muscularity and decisiveness as admirable male traits and everything else as supine and feminine frailties. Is “toxic masculinity” then the new national character? Now codified almost?
The first case was of the Unnao rape accused Kuldeep Sengar, now expelled by the BJP, wishing a speedy recovery for the survivor with not even a twitch of emotion or even betraying his predatory nature, one that he had used to hound, scare and subjugate her for two years. The girl, whose family was neutralised or eliminated through means foul and his intimidation, had to threaten self-immolation in front of the UP Chief Minister’s residence for her ultimate appeal to justice. And a national conscience. Sengar is in custody, booked under serious charges and now even guilty by evidence, but that hasn’t stopped him from squashing his female victim where it hurts the most. As she fights for every breath of her life in a hopeless situation, Sengar publicly insulted her effort by “wishing her well,” the final blow to her dignity, patronising in dispensing grace while being the perpetrator of her humiliation. Some distorted charity that he thinks will earn him clemency. Sadly, it has for the last two years.
The second instance was even more belly-churning. As the government road rolled its way into changing the character of Jammu and Kashmir by abrogating Article 370 and bifurcating the State into Union Territories, a majority of reactions on social media were about how every Indian male could now marry “fair Kashmiri girls,” buy property and settle down in the Valley, the implication reeking of feudal conquests of the darkest ages of civilisation, where women were traded as spoils of war. A forceful integration amounts to a war on people over land. Nobody even stepped in to condemn such irresponsible and crass humour, which was relished by many. And considering that a certain level of awareness, power and education can be assumed of online citizenry, this truly was a new low, no different from the mentality of an invading, occupation force of the medieval era. Since when were Kashmiri women prevented from marrying outside the State? Many have already done that out of free will, knowing full well that it would entail relinquishing claims to their family inheritance. Of course, to the avaricious male, she can now be entitled to her birth heritage. Is that the implication? Also did anybody ask why Kashmiri women would agree to marry outsiders, particularly in challenged circumstances as now? Or why they are not a voiceless tribe and just like other women in the rest of India? Yet there is a sweeping assumption of their acquiescence to a new order in this pernicious propaganda warfare that is deeply problematic. By denying them their equal, civil space and appropriating their human rights of choice and decision-making, it shows that political control is equivalent to a patriarchal social authoritarianism. Also, by equalising marriage with a Kashmiri woman and acquisition of land in Budgam for a summer chalet, the script-writers are blanking out consent and will of the other side and force-feeding choices.
It would be easy to attribute such behaviour and mindset to the resurgence of revisionism or a stoking of primal instincts. But male behaviour in the millennial era has considerably changed organically, lending heft to the definition of metrosexuality. This then is not latent expression but an adjunct of hardening politics worldwide, where sexism and gendered violence are being redefined as a masculine privilege of power. In the Indian context, it is about inequality of political power and the way it is dispensed. It is about a certain male chest size which can be the nation’s armoured shield like no other. One has only to look at the way political decision-making process has converted the democratic process as a fait accompli. Nowhere is this totalitarian might more evident than in Parliament, where productivity is about steamrolling legislation and the consultative, cooperative process is seen as wasting time and energy, where opposition is about anti-nationalism and considered opinions are national deterrents to possibilities, where plurality is pointless and negotiation an extinct tool of trade. In a system, where monotheistic and simplistic decision-making is blurring out layers and complexities, and power flowing from an iconised perception of maleness, it must follow that society will react to it. For it is only real life conditions and forces that sustain popular culture, in our case a brainwashed sort. One where institutions and purveyors perpetuate the sentiment rather than political thought. This explains why the Hindi film Kabir Singh, which celebrates toxic masculinity and a subjugation of gender roles, finds crores of takers in the 21st century and is frighteningly endorsed by the youth in middle and small town India. This is so different from the “angry young man” of the 70s, who was fighting the establishment against such ruthless toxicity of power.
What confounds the discourse is attributing male superiority to our cultural DNA when fact is an eco-system has been created to foster an old construct for easier acceptance. A study conducted in the US on alcoholism may be cited here to explain the context. The alcohol industry there had funded research to deny the relationship between alcohol and violence and instead blamed “masculinity” and “cultures of drinking.” But the study uncovered strong evidence that the density of liquor shops in a given geographic area increased the local rate of domestic violence and recommended that any serious framework for preventing violence against women would have to address alcohol availability as well as sexist mindsets. In other words, such a mindset is being engendered by systematic and selective blanking out of existing narratives and pushing convenient ones with brute force.
The problem with this approach in our society is that we have still not begun to respect women’s rights as evolutionary but as an imposition of grace by a male order. We have not been able to pass the Women’s Reservation Bill at a time when it was required to ensure proportional representation that would ensure inclusive participation and policy-making, not even now when a flurry of other Bills have made the cut. All women and child-friendly schemes of the government are bestowed rather than earned. The very act of “empowerment” assigns the agency to an external power of dole rather than claiming rights. And with so much muscularity of purpose on display, embracing the virtues and strength of femininity as a man upsets operable binaries. If reason, counsel and civility are now emaciating characteristics, then the idea of power automatically gets slotted in the privileged domain of a raw, hunter-gatherer masculinity. The otherness gets lumped in baskets of minorityism, liberalism or feminism. Of these, feminism is the easiest to target as the tide of opinion still favours men. Generations of women in India have worked tirelessly to rebalance the equation between sexes, often mistakenly acquiring masculine qualities and benchmarks to do so. Now they have a far tougher political context of endowment to battle, one where humaneness is predicated on the dehumanisation of others.
(The writer is Associate Editor, The Pioneer)
Writer: Rinku Ghosh
Courtesy: The Pioneer
The Triple Talaq Bill was an easy sail in the Rajya Sabha not because of the BJP’s skills but Opp disunity
First things first. Now that the Triple Talaq Bill is law, an archaic practice of oath-based separation, which anyway had little use in the modern context, has been done away with and at least empowered the lesser privileged and backward Muslim women. It further allows Muslim women to go through a legal process of reconciliation without the Nikaah Halala or the practice of marrying another man before seeking to remarry the old husband, mainstreaming them with not only the rest of India but many Islamic nations as well. Of course, there is the niggling issue of criminalising the errant husband, some saying a jail term would mean a sudden economic crunch as maintenance for the affected woman, but the Bill proposes some filters against the exploitative potential, which need to be reviewed on the ground. In the end, the implementation will throw up fresh challenges. But the short-term optics have been done. However, the bigger story is its political dimension. The ruling BJP has managed to pull off a pro-minority women stance and position itself as a progressive counterpoint to the Congress which failed to do so in the Shah Bano case, choosing to yield to the normative compulsions of the day. The triple talaq law would now become a revolutionary marker for the Modi 2.0’s “New India” narrative, clearly lending an edge to its competitive propaganda as a performing government. The bill passage also bears testimony to the NDA’s aggressive floor management skills and transactional politics in the hostile Rajya Sabha although the numbers are stacked against it. Many BJP leaders, in fact, had quite reconciled themselves to the idea of a gradual increase in the ranks of the Upper House through newly-elected members over the next two years. Post the mammoth Lok Sabha verdict, it was anyway expected that while the BJP could have its way in the Lok Sabha, the Rajya Sabha would act as the nation’s moral conscience and be its speed breaker. Analysts had even thought the ruling party wouldn’t be gung-ho about aggressive legislations till it was sure of the numbers. But the way it ensured the passage of the RTI and Triple Talaq Bills by winning over fence-sitters like Biju Janata Dal, AIADMK and YSR Congress, engineering abstentions and soothing anxieties of non-Congress Opposition parties over the interpretation of various clauses shows that the Opposition is just now a notional requirement in the House. That it stands completely defanged by its self-imposed irrelevance, unpreparedness, worse willing acceptance of brute force. In such an environment, more controversial legislations may be steamrolled, amendments to Article 370 and 35A, sooner rather than later. All MPs know that abstaining only helps the ruling regime as missing members would only bring down the total strength, particularly Opposition numbers. They would have proved their point by opting to vote “no” instead. So, clearly the integrity of the vote has also been compromised, though a few, like the NDA ally Janata Dal-United (JD-U) claimed a fake show of conscientiousness by the act of walking out.
How else does one explain that the Congress, despite a whip, saw its benches empty at the time of voting? At least four party MPs were missing, and in the season of migratory birds, a headless Congress seemed unable to gather its flock. The Peoples Democratic Party (PDP) threw up a big surprise when, despite its very public stand against the Bill, its MPs chose to stay away, bailing out the government. Nationalist Congress Party (NCP)’s Sharad Pawar and Praful Patel were missing too. For Pawar, who is on the verge of losing the national party tag and is torn by dissension and fleeing members, political survival in the Maharashtra Assembly polls is more important than a piece of legislation. The next big surprise came from the Bahujan Samaj Party (BSP), whose members did not vote, an indication that Mayawati is back to prioritising her own gains over stated positions on the Bill. Some MPs of the Telangana Rashtra Samithi (TRS), Samajwadi Party, Telugu Desam Party (TDP) MPs and one member from the Trinamool Congress too, stayed away. The Opposition, before accusing the BJP of “dog whistle politics”, should introspect why it couldn’t stand up and be counted or make a case for a law against all abandoned wives irrespective of religion?
Writer & Courtesy: The Pioneer
Politics be damned, the priority now should be to get justice in the Unnao rape and the strictest penalty for the offender
If there is one reason why the political whataboutery and tallying criminal statistics of various party regimes in Uttar Pradesh (UP) should stop right now, it is the Unnao rape case survivor, who is gasping for justice and life. It is alleged that the car crash that injured her and other family members critically was pre-meditated and orchestrated to silence her forever ever since her crusade has led to the imprisonment of the accused and rapist, BJP MLA Kuldeep Sengar. Too many coincidences despite the suspect being in jail — her father dying in custody, harassment and threats to her family to back off or face consequences, the imprisonment of an uncle over trumped-up charges, the death of an aunt who was a witness to the case, the lack of security cover in her entourage at the time of the accident — have only strengthened the conspiracy of power and the victimhood of silence. The counter-charges of her security detail colluding with the MLA’s henchmen and her family citing warnings by the State police to stay off Sengar have only entrenched the stereotype of UP still being the proverbial badlands. Yet the accused continues to get political endorsement by virtue of continuing to be a member of the ruling party, in this case the BJP, which is yet to act against him pending the closure of the case. Not that other parties in the past haven’t been complicit in protecting sexual offenders, prioritising political necessity over the rule of law. The point is that this acceptance has become so much a part of our political culture that it took the distraught rape survivor, a minor girl, a self-immolation bid in front of the Chief Minister’s residence to get the justice system moving. Ironically, this incident challenges even the Supreme Court’s concern over the increasing number of child rape cases in India. And comes within days of the top court ordering that special courts be set up in districts where over 100 sexual offence cases are pending.
Just going over the facts of the Unnao case shows that despite the allocation of investigations to the Central Bureau of Investigation (CBI), there has anyway been a gross travesty of justice. Although sexual offences of such a grave nature have a timeline to work upon, the State prosecution has nothing to show even after two years have elapsed. This wilful delay and the impunity enjoyed by the accused has anyway compromised evidence, witnesses and the fairness of the justice delivery system. Over 1.5 lakh cases under the Protection of Children from Sexual Offences (POCSO) Act are pending in 670 designated courts, or 224 cases in each. In UP and Rajasthan, victims can hope for justice only in 2026. In Delhi and Bihar, a child has to wait till 2029, while in Maharashtra a victim has to wait till 2032! This proves that there is simply no national will to stem the abuse of our most precious human resource — children. And no matter how aggressively we push legislative changes and stricter punishments like death penalty for rape of minor children, all this is counter-productive till the justice delivery module is not changed in its entirety. Of course, now that the apex court has directed that new courts can be set up with Central funds to take care of appointment of new judges, prosecutors, support staff, counsellors and creation of child-friendly courtrooms, specifically for POCSO cases, there seems to be a sliver of hope. This means that exclusive courts, as per the quantum of pendency, can ensure fast track and time-bound trial in every district. A Supreme Court mandated intervention means the Centre, State governments and High Courts could become proactive. Other suggestions from activists include creating a dedicated police cadet corps for registration and investigation of cases of crimes against children and a national grid for tracking pendency and performance of courts. What is also needed for protecting the child and his/her family from political intimidation is the evolution of a victim and witness protection, including relocation and court-mandated protection to victims of child sexual abuse and their families. There also needs to be a sex offenders’ registry to deter repeat offenders of child sexual abuse. Most important is rehabilitative and reintegration assistance to the affected child/adolescent. The Unnao teen may not make it but surely become political fodder for all parties concerned to feed on. As a nation, therefore, we cannot certainly abandon her fight for justice.
Writer & Courtesy: The Pioneer
The ICJ ruling favors India but much depends on what Pakistan intends to do, hit back or negotiate a release
Now that the euphoria over the International Court of Justice (ICJ) ruling on Kulbhushan Jadhav, the man condemned by Pakistan to death for being a spy, granting him a breather has died down, it is time to smell the coffee. Diplomatically, there is a lot of work ahead and unfortunately, much of it will depend on the Indo-Pakistan bilateral dynamic. The ICJ has merely defended India’s cogent arguments on points of law, basically on Pakistan violating the Vienna Convention by denying consular access to Jadhav after a closed trial and not facilitating a legal counsel. As a corollary, it stayed Jadhav’s execution on the ground that since due processes were not followed, that would be null and void, including Jadhav’s forced confession on which the whole case was pivoted. It, therefore, urged for a fresh review and reconsideration of processes to arrive at a sentence and did not annul the old one. Which means that if all rules were complied with and the sentencing was still to be the same, it would not change the endgame. Nor has it issued any directive on shifting proceedings from a military to a civil court in Pakistan. In short, the ICJ has kept to human rights and stayed avidly clear of commenting on the validity of the internal legal processes of a free country. The court took special note of Pakistan’s three-week delay in informing India about Jadhav’s arrest, emphasizing the fairness of established global practice. Truth be told, the ICJ has not overstepped its brief or got swayed by all of India’s pleas for releasing Jadhav and worked out the best-case scenario, staying within its ambit and upholding international protocols set by common consent of nations. So India can now only appeal if the criteria set by this ruling are not met. Neither is there any timeline on how long the stay would last, the court asking Pakistan to resort to “means of its own choosing.”
Having said that, the verdict does put a lot of pressure on Pakistan. The ruling was 15 to one in favour of India; the lone dissenter being the judge from Pakistan. Even the judge from China supported India’s claim, which has further put Islamabad in a spot. For all its strategic interests, China has now carefully sifted its dealings with Pakistan on a nation to nation basis and delinked them from larger international concerns where it does not want to be seen in a poor light for defending the indefensible. Pakistan would now not only have to follow due processes but begin afresh, overturning the narrative that its Army has crafted for so long and one which the ICJ has all but rejected. Besides, at the moment Pakistan is under a global scanner and has to be seen as doing the right thing. For example, it “arrested” terror fountainhead Hafiz Saeed so as not to be blacklisted by the Financial Action Task Force (FATF), which can disqualify a nation from World Bank and IMF grants over continued terror funding. But then US President Donald Trump ran down Pakistan’s “good intention” by openly admitting to pressuring it to crack down on Saeed. With the Damocles’ sword hanging over its head, courtesy India getting a lion’s share of the global opinion, it is unlikely that Pakistan would give up its intransigence on Jadhav so easily. But once India gets consular access, it can get a first-hand view from Jadhav himself on the circumstances of his arrest, his detention and grilling operations, abuses if any. In that case, it can build a larger case of rights infringement and torture to further dent Pakistan’s image. By providing legal assistance as mandated, India can even track proceedings in the Jadhav case. In view of these, a cornered Pakistan, particularly the military, may just be reactive and cleverly find ways and means to frame Jadhav all over again. Given its past stance and India’s new position post-Balakot on “zero tolerance” to cross-border terrorism, Pakistan might just use the same argument to hold Jadhav. Particularly, the military establishment is in a cleft stick. At one end, its endorsement of terrorist networks to build strategic relevance is starting to thin out in the West, which once acknowledged its necessity but is now clearly also a victim of it. At the other end is India, which has the diplomatic edge. Given its ascension as a key player after China in a multi-polar world, it is blunting the old argument of threatening Pakistan’s security. Jadhav may still be a victim of Pakistan’s obsessive blowback and have a long haul ahead.
Courtesy: The Pioneer
The lack of laws surrounding arbitration has made it not only a complex process but often delays resolution
When an unresolved dispute is referred by parties, who have disagreements over an issue, to a third party who stands to be neutral, the process of resolution is known as “arbitration.” When instead of the litigation process, the concerned parties mutually agree to resolve the matter through a neutral party, it is known as “voluntary arbitration.” But when the Government instructs the two parties to resolve their issues through mediation, it is known as “compulsory arbitration.” While the former is not legally binding to both parties, the latter is subject to be abiding by both. Although arbitration seems to be simple, easy and cost-effective, the process is full of practical demerits, which remain disguised until the parties come to know that they had spent a lot. The results, however, are still unsatisfactory.
Extravagant alternative to litigation: More buzz, less bite is the perfect phrase to describe why arbitration is a white elephant. Yes, expensive but worthless. Though it was introduced as an alternative to a lawsuit, in a highly populated country like India, arbitration is not an antidote to the established legal procedure that is followed by the courts. First, a majority of the people do not have faith in this alternate way of resolving disputes because of the many complications involved in the arbitration procedure. Second, in the case of non-satisfaction, the loser does not have much scope for appellate jurisdiction.
In India, the binding value of an arbitration verdict has always been questionable in the legal term because as per the Supreme Court of India, a writ can lie against an arbitrator under Article 226 of the Indian Constitution. There are also some legal challenges that affect the effectiveness of the arbitration. According to the Supreme Court, an arbitrator’s decision must not go against the provisions laid down by the law, else it will be considered illegal. After spending a significant amount of money in the arbitration agreement, dissatisfaction among the parties over its legal power is always a common issue. Further, when the legal cost is high and its recovery is unavailable, it becomes more difficult for an aggrieved party, who do not have sufficient funds or unwilling to bear arbitration cost.
When influence gets biased: Another big disadvantage of arbitration is the influence of the powerful in the system over the decision of an arbiter, who is not as protected as the judge of a tribunal court. The vested interest of the arbitrator from the stronger party may also nullify the purpose of arbitration. And once the decision goes wrong, the sufferer has very limited scope to challenge the verdict as there are not many avenues for appeal and chances of making any major change in the decision are always very slim, which means an upside down of the table is rarely possible.
Complexities make things rigid: Apart from the functional demerits, there are also many structural shortcomings that make arbitration the least preferred choice. It becomes quite annoying for solution-seekers to expect early resolution of a dispute when there are two or more arbitrators on the panel. Availability of arbitrators on a particular date is often a challenge because of differences in their work schedules. On the other hand, rule of applicable law is binding only to the parties, who seek justice through arbitration but arbitrators are not necessarily bound to it. In addition, hassles are also there in the enforcement of interlocutory measures against a party to resolve disputes related to relocation of assets among other things.
Arbitration is not a very good alternative to the lawsuit that takes place through the courts in a systematic and more transparent manner. Usually, in our country, retired judges from High Courts and the Supreme Court are hired as arbitrators by big firms where they make decisions to impress their bosses. In such an influential scenario, where there are no set rules and responsibilities defined by the law for an arbitrator, getting an acquaintance with justice is not just difficult but costly, too.
(The writer is a practising lawyer at the Supreme Court of India)
Writer: Vivek Singh
Courtesy: The Pioneer
Empowering women to make reproductive choices and opt for quality family planning services can help India not only address the fertility challenge but fulfill the ICPD pledge
Ever since 1989, July 11 is observed as the World Population Day to draw attention to issues surrounding human population. The urgent need to provide an enabling environment to facilitate women’s autonomy in reproductive decisions was underlined five years later in 1994 at the Cairo International Conference on Population and Development (ICPD). Here, for the first time, an international agreement, recognising the right to sexual and reproductive health, was signed by 179 countries, including India.
Twenty five years have passed since the historic ICPD Programme of Action. Although India has taken several measures to provide universal access to reproductive health services, including contraceptives, has it really delivered on its promise to give women the right to choose when, if and how many children to have?
A closer look at some population statistics will provide the answers. According to official figures, 48.1 per cent births occurred with an interval of less than 36 months. This means that spacing between births is too close. Further, 22.8 per cent are one-third or more order births, indicating families continue to have too many children. That 7.9 per cent of births take place among the age group of 15-19 shows that motherhood is occurring too early. This is probably because 26.8 per cent continue to get married before 18 and the unmet need for family planning is 12.9 per cent (National Family Health Survey 2015-16).
Clearly, there is a gap between a woman’s desired number of children and her ability to access family planning services to achieve it. So, limiting families continues through female sterilisation. Long believed to be the best way for population stabilisation, this method still remains the most popular form of contraception, accounting for two-thirds of contraceptive use until 2015-2016. This despite the introduction of several new contraceptive choices like injectible contraceptive by the Government in 2015. But the hope that this will lead to a shift from female sterilisation to more modern limiting methods of contraception has not happened as widely as expected.
Sterilisation camps by the Government continue despite the 2016 Supreme Court order, which ordered a ban on mass sterilisation camps. The order came following a petition by social activist Devika Biswas after the overdrive to sterilise women under unhygienic conditions led to botched operations and several deaths. Yet, three years after the court order, States still organise such camps to meet their family planning targets. What has made it easier for them is the time frame (three years) given by the court to close their camps. A couple of months ago, a sterilisation camp was held at a Government hospital in Khargon, Madhya Pradesh. But since only six women turned up and a minimum of 12 women were required for the camp to be operational, services were denied. The women were told to come the next day when adequate numbers had been drummed up.
But would the women give their work a miss again to turn up the next day? The cost of inaction in family planning services means that India will increase its population by an additional 149 million by 2031, according to a study by the Population Foundation of India (PFI). This 2018 study found that States expected to contribute the most to this burgeoning population include Uttar Pradesh (31 million), Bihar (24 million), Madhya Pradesh (14 million) and Rajasthan (5 million). With low levels of sexual and reproductive health (SRH) knowledge, including oral and emergency contraceptives among adolescents in States such as Uttar Pradesh and Bihar, this doesn’t come as a surprise. Only one in two married girls among older adolescents and a little less than a quarter of unmarried boys and girls ( all in the age group 15-19 years), are aware that a girl can become pregnant even when she had sex for the first time. This revelation by a Population Council study underscores the risk faced by adolescents in these two States.
If these knowledge gaps continue, the country will have to bear the burden of an additional 69 million births during the period 2016-31 as the child population (0-4 years) will increase to 22.7 million, according to the PFI study. Here again, Uttar Pradesh (4.1 million), Bihar (3.3 million), Madhya Pradesh (2.3 million) and Rajasthan (1.1 million) will account for about 60 per cent of this increase. However, about 1.2 million maternal deaths can be prevented by 2031 in our country if family planning services are easily accessible and women have the power of choice. Just how better family planning services impact maternal mortality can be seen from the fact that there has been a fall in the number of live births between 2001 and 2011, meaning more than one-third of the potential number of maternal lives were saved, said the study.
In fact, the effect of fertility decline on the potential number of maternal lives saved is estimated to be 57 per cent for Uttar Pradesh and 62 per cent for Bihar, the two States where maternal mortality rates are high. All this can be achieved by addressing social determinants of health, promoting women’s empowerment and education, adopting a target-free approach and ensuring a convergence of service delivery at the community level. Is this asking for too much?
Studies have shown that unsafe abortion is the third leading cause of maternal mortality in India. According to a report by the Guttmacher Institute, International Institute of Population Sciences and Population Council, about eight women die from causes related to unsafe abortion every day. A majority of rural and poor women visit primary health centres (PHCs) to access health care. But only a few PHCs provide abortion services. Only five per cent of the PHCs in Bihar and four per cent in Uttar Pradesh provide abortion services. The Guttmacher study found that almost half of the pregnancies being unintended, majority of them ended in abortion. It revealed that in Bihar, unintended pregnancies were 48 per cent and 27 per cent of them ended in abortion. In Uttar Pradesh, 49 per cent of the pregnancies were unintended, of which 31 per cent were aborted.
So, if unintended pregnancies can be averted, so can unsafe abortions. A potential 206 million unsafe abortions can be avoided with improved quality care, trained providers and proper equipment. Again, Uttar Pradesh will benefit significantly by providing these services and preventing 34 million unsafe abortions. Similarly, Bihar can avert 22 million unsafe abortions, states the PFI study. Even one life lost is too many. Then, is it too much to ask for quality family planning services?
If quality family planning services are provided under the Universal Health Care programme, it would mean fewer children. This in turn will cut down the high, and often catastrophic out-of-pocket expenditures (OOPE) incurred by families. According to the PFI study, households can achieve about one-fifth reduction in total OOPE on delivery care and child hospitalisation with good and timely family planning services. Is this also asking for too much for?
Every year, July 11 to July 24 is observed as “Population Stabilisation Fortnight”. This is preceded by a “Couple Mobilisation Fortnight” (June 27 to July 10). And like always, it is the women, who are saddled with the burden of planning their families. Rarely do men step forward. The lack of male multi-purpose workers perpetuates myths and fears they have of losing their masculinity if they go under the knife. States are reluctant to invest in male workers since they have to pay their salaries. Frontline health workers like the accredited social health activists (ASHAs), who are meant to do family planning counselling, are paid by funds from the Centre. But they are unable to reach out to the men directly.
Asking wives to persuade their husbands to undergo vasectomy or adopting other family planning measures is challenging for the ASHAs, considering the deeply entrenched patriarchal attitudes. So, they land up bringing women for sterilisation. This can end only when increased investments in advancing women’s health, education and skills, delaying their age at marriage and enhancing opportunities for them in the labour market are made. This cannot be asking for too much. For until then, the pledge taken by India at ICPD 25 years ago will remain unfulfilled.
(The writer is a senior journalist)
Writer: Swapna Majumdar
Courtesy: The Pioneer
CJI’s appeal to increase the retirement age of judges is not new but the move should also factor in lower court vacancies
The issue of increasing the tenure of judges has been hanging fire since the UPA regime and given the pendency of cases, the need to ensure continuity of hearings and proper assessment in crucial matters, there has been much argument in its favour. In that sense, Chief Justice of India Ranjan Gogoi’s letters to the Prime Minister asking for increasing the retirement ages of the judges of the Supreme Court and High Court by three more years aren’t new and merely add traction to a process that is expected to streamline our judicial process. He has even sought the revival of a practice that would allow retired top court judges to be assigned pending cases, which is permissible under the Constitution. Gogoi has essentially argued for using the full range of a judge’s experience and maturity, saying an increased timeline would allow him/her to give an educated and informed judgment in cases. Most judges, he feels, are close to retirement when they have evolved to their best. Most importantly, such a move, if legislated, would be in line with judicial norms worldwide.
Of course, the pendency of cases, 48 lakh to be precise in the higher courts, indeed needs redressal. With judges retiring and a lengthy process involved in filling up a vacancy, the process for which is initiated during the last lap of the retiree, there is an ever-widening vacuum. Besides, if retired judges can be asked to preside over tribunals, there should be no reason why their services cannot be, therefore, availed for a little longer in their official capacity. However, if a review does indeed take off, equal attention needs to be given to the lower courts, where pendency and vacancies pose an unprecedented crisis of backlogs. If Law Ministry figures are anything to go by, then the judge-population ratio in India is among the lowest in the world at about 20 judges per 10 lakh people, compared to double that number in the West. Earlier CJIs had also driven home the point that although the Law Commission had recommended increase in the number of judges from 10 judges per 10 lakh people to 50 in 1987, nothing had moved since then. Yet the sanctioned strength of High Court judges has increased from 906 judges in June 2014 to 1,079 judges in December 2018 and those of district/subordinate courts from 20,214 in 2014 to 22,833 in 2018. Gogoi’s predecessor Dipak Misra, too, had expressed concern over the national backlog touching 3.3 crore cases, a major chunk of them clearly in the subordinate courts. Besides, with India’s projected population spiral over the next decade, the judge-population ratio will only go up. Therefore, the shortage of judges should be looked at holistically across hierarchies because pendency at all levels only lends credence to the theory that justice delayed is justice denied and entrenches our exasperation about a redressal system that does not guarantee closure. Of course, there are both advantages and disadvantages that will have to be thoroughly considered. Increasing the age of retirement for Supreme Court and High Court judges undoubtedly strengthens the available resource of expertise and helps in appointing new judges in a graded rather than a rushed manner and without affecting existing judges. Faster disposal also means relief for litigants, not to mention their costs. And of course, the sense of continuity will also keep the judiciary independent of political expediency and insulate it from imperatives of the government of the day. The same logic can, of course, always be turned on its head to argue that while intended to free the judiciary from political pressure, the courts could, in fact, become more politicised. Sure of their longer tenure, judges, while believed to be bipartisan, could also be ideologically prone to select their own kind in the hierarchy, considering their extension was granted in a certain political environment. This concern has particularly arisen in the US Supreme Court, where lifetime appointments have sparked a debate on limited tenures. Besides, some argue that a longer working period for judges would also demotivate the talented aspirants looking to move higher and change the judiciary with their fresh take on things. Still, a retirement age of around 70 for judges is commonplace in Belgium, Denmark, Ireland, the Netherlands, Norway and Australia. No doubt a corrective has to be taken, but with the top court coming under the scanner all too often over the past year, there have to be adequate checks and balances.
Courtesy: The Pioneer
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