I, Aruna Shanbaug

I was a nurse at a hospital in Mumbai, full of life just like a 24 year old girl. I had many dreams, countless aspirations just like all. I was about to get married to a handsome doctor. And then everything fell apart.

On the night of 23 November, 1973 I was sexually assaulted by a boy who was working in the same hospital where I was. And I lost my power to speak , I was paralysed and slowly I slipped into a vegetative state. That was 37 years ago. With time everyone left me, my family, my fiancé, my friends and my death too.

A vegetative state is a condition which arises after a patient suffers from severe brain damage. It’s a state of coma. In the vegetative state patients can open their eyelids occasionally and demonstrate sleep-wake cycles, but completely lack cognitive function. I have been in this state for the past 37 years. This was before India won the world cup in 1983, or before the calendar turned 2000. I don’t know who is Sachin Tendulkar or who is Shahrukh Khan.

The Judiciary retreats-Executive wins-We lose

The Supreme court yesterday in a far reaching observation said that the judiciary has crossed the thin yet important line that separates the judiciary from the other two branches of governance ; the executive and legislature and the time has come for the courts to refrain from indulging in what it called ‘judicial over-reach’.

A two-judge Bench of Justices A K Mathur and Markandey Katju slammed the judiciary for over-reaching its limit and stepping into the shoes of legislature and executive.

The effects of yesterdays judgment were immediately felt as citing criticism of judicial over-reach, a two-judge bench of the Supreme Court refused to hear a PIL seeking relief for ''sex workers''. The petition was filed in the form of a PIL by an NGO Prajwala seeking rehabilitation of victims of flesh trade.

The two bench observation humbly conceded that judicial activism has reached the fifth gear and it should be pulled back. They reiterated the same point which the legislative and the executives have been saying time and again, “Courts should be limited to overseeing that the existing laws are upheld and it shouldn’t take to creating laws.

The observations shocked the legal fraternity and the immediate effect was felt even on the Apex Court the following day as Justice S B Sinha and Justice H S Bedi, literally set the agenda for debate on judicial activism as their Lordships observed " Parameters for hearing the PIL now needed to be fixed by a larger bench ." 

They declined to hear the PIL which they had been hearing for the past four years and referred the matter to the Chief Justice for guidance. The petition was filed in the form of a PIL by an NGO Prajwala seeking rehabilitation of victims of flesh trade.

Same day, the Delhi High Court bench presided by Justice Mukul Mudgal, declined to hear the matter relating to ban on Begging in view of the forthcoming Commonwealth games and observed the court would proceed in the matter only after reading the observations of the Supreme Court.

The judiciary, particularly the High Courts and the Supreme Court were charged with governing the executives. Probably the statement holds an iota of truth. In many cases the courts intervened only when the executive failed to deliver goods to the common man, be it the ban on diesel run buses in New Delhi or commercialization of residential flats in the capital.

However, the Supreme Court had to face criticism when it issued guidelines for vote of confidence proceedings in Uttar Pradesh and then in Jharkhand state assembly and there were accusations that the judiciary encroached upon the functioning of the legislature.

Although it was the judiciary it-self that introspectively came out with the observation but for the present it seems that the executive and the legislature have had the last laugh. The humble self-judged comment by the two judge bench may push back the judiciary into a shell giving executive ample opportunity to deteriorate further.

Although it was the judiciary it-self that introspectively came out with the observation but for the present it seems that the executive and the legislature have had the last laugh. The humble self-judged comment by the two judge bench may push back the judiciary into a shell giving executive ample opportunity to deteriorate further.

Maybe the judiciary has erred while passing the above observations. Although it shows the level of maturity the judiciary possesses and the sanctity it has attained all through these years but the message that will go out would not be too good for the system in the larger context.

In a constitutional setup like ours none of the three branches of governance can be at the same footing, albeit this is what constitution calls for. Though the constitution talks about an ideal setup where each of the three branches of governance will work in its own distinct sphere still it can be reasonably expected that the either of the three will transcend its boundaries and unconsciously and for a good cause will dishonor the separation of power structure.

And if this tilt in balance occurs, as it is happening now then it should be in the favour of judiciary and the it’s the judiciary that should be on a higher pedestal.

Judicial activism traces it roots back to 1980s when the concept of PILs (public interest litigation) came into focus under the learned guidance of Justice P N bhagwati and Justice V.R.Krishna Iyer. It was these PILs that highlighted the environmental pollutions, the sorry state of river Ganga under a series of case filed by MC Mehta.

According to a study by Hans Dembowski, PIL has been successful in the sense of making official authorities accountable to civil society organizations in India. The executive in our country is in a sorry state and there needs to be an accountability that would push them to work efficiently. The courts are one such accountability tool.

Agreed, that as stated by the Supreme Court bench the judiciary has sometimes crossed the “Lakshman rekha” but as said earlier this things are expected. In Shakesperian language it’s about forgoing the lesser evil for a greater cause. And it should not be forgotten that we are not residing in a perfectly-built-ideally constructed world.

The court may have been forced into making these observations in view of the recent vociferous demands by the legislature for bringing judges accountability bill and this was evident when mincing no words the bench cautioned the judiciary to exercise restraint as the reactions from politicians may result in the curtailment of power and dent in independence of judiciary.

If a civil society faces problem and the executive thinks that problem doesn’t warrant attention then is it right to say that even the judiciary should tow the same line? Or the judiciary should portray a picture of blindfolded idol and say that since there is no law to deal with the problem hence there can be no enforcement or wait for a law to be enacted, violated and then decide to look into it.

The three arms of governance are independent and yet dependent on each other. If any one of them is given even a subtle hint of having a free run then there will chaos and anarchy and perhaps the executive has just received that message.

The judiciary is the always the last resort against the oppression of the executive and the legislature and if that last resort too decides to look the other way and ignore its ‘extra-resposible-activism, the country may still survive but then the picture will not be too bright.

http://www.telegraphindia.com/1071218/asp/opinion/story_8660260.asp

In the name of God

In a recent Andhra Pradesh high court decision Justice V Easwaraiah of the Hyderabad High Court granted an interim stay and directed a company not to take up any construction activity on the 1,600 acres at Manikonda village which were alienated to them by the State Government.

This decision came in petition filed by a Telangana Rashtra Samithi Member of the Legislative Council H A Rehman in which he complained that the said lands are Wakf properties belonging to Dargah Hazrat Shah Hussain Wali and located in the Hazrat Shah Hussain Wali village.

The petitioner claimed that the erstwhile Telugu Desam government submitted a report to the court stating that the lands were Wakf properties and allotting them to various multinational companies like Microsoft and Wipro was illegal. The Congress, which returned to power in 2004, allotted them without considering the report, he said.

While passing the orders, the Judge said that prima facie it was not open to the State Government to dispute the said properties do not belong to the dargah. ''I am of the opinion that the lands belong to 'Allah" the Almighty. God is the owner of the lands and therefore no construction should be made on them,'' he said.

Conversely in another recent case of Siddivinayaka Temple peripheral wall issue, the Mumbai HC questioned the State Government rational behind constructing a wall around the famous temple so as to prevent possible suicide bomb attacks. The local residents of the area had protested this and moved to the court asking the court to remove the wall as it was obstructing the flow of traffic on one of Mumbai's major arterial roads and had asked the court to order the government to relocate the temple out of the residential area . In its judgement the court said "God is supposed to protect us and not we protect the GOD hence re-locate the temple".

Secularism is all about equality; equality of religion. But does that mean that since India has more of Hindus hence Hinduism comes on the lower pedestal? Does that imply that the faith of Hinduism is open to questioning whereas other religions with relatively less followers are untouchable? why this discriminataon? India adopted secularism in its constitution so as to see to it that every religion develops equally, no one weak no one strong.

One has to see the present issue in the context of a broader picture. A renowned artist paints Hindu gods and godess nude, and somewhere in Gujarat an arts student does the same . Some months back a Danish cartoon of prophet Mohammad created furore worldwide. Why this blasphemy? Its one thing not to believe god, its totally different to mock them.

Freedom of speech and freedom of expression as enshrined in the constitution doesn't mean the liberty to mis-use it.

I again reiterate the same point. All religion is equal, and it's a matter of faith. Faith is about one's belief. It's simple; either you believe or you don't .

Who is Karunanidhi to question Ram and that too with so much of disdain? Hindus believe that the Ram-Setu was used by Ram and his army to cross over to Lanka. A child may not have read or heard about Panchatantra, Jataka or for that matter SRK but once in his life he is sure to have heard about Ramayan and Mahabharat.

Isn't it pertinent to ask that can we prove existence of god? Can anyone prove Ram? Has anyone been able to prove that Muhammad walked on this earth or for that matter was Mary the mother of Jesus, and if yes was there any Jesus? Gita, Kuran and the Bible are one and the same, if you question anyone of them you are questioning all of them.

These kinds of unanswerable questions are, should and can never be answered. Who are we the question faith? The believers don't need it and the non believers won't believe it.

Foolishly raising such issues give an opportunity the zealots to rear their dangerous contagious head. Every religion has a fair share of them and once you give them the chance to become active then it's the common mass that suffers not the gods.

Chhattisgarh: End of democracy?

I wrote this in Feburary 2006, when the CSPS bill was still being 'debated' in the house. I am posting it on the blog in the wake of arrest of PUCL activist Dr.Binayak Sen who was arrested on May 5th 2007 under the CSPS act.

This article was carried by the Times of India and Central Chroncile.

The Chhattisgarh Special Public Security legislation 2005 (CSPS) which has been sent to the president for his approval is being seen as an instrument which will surely strangulate democracy in the state. The legislation which has been formulated to tackle the rising incident of naxalism has virtually given blanket power to the state so as to curb naxalism.

The legislation which contains 18 sections is being seen as the start of the series of laws which will be formulated in the country all in the name of combating terrorism, naxalism and communalism. If not repealed this legislation will be set a very bad precedent for the other states to follow suit.

Section 3 of this legislation authorizes the government to declare any organization as unlawful, and in some cases the government is even exempted from giving the reasons for declaring an assembly unlawful. When will our country realize that this is not an authoritarian or an anarchical state where you just do whatever you wish and go away with it. The more you try to justify your illegal legislation, the more illegal it will become.

Unlawful activity as defined in the legislation includes uttering words, writing or making visual representations that may “create risk or danger” for public order, peace and public tranquillity or create an impediment in the administration of law or institutions.

This definition can only mean one thing, either the government wants the state to be free from naxals or it wants to curb freedom of expression. This is up to the people and of chhattisgarh who reside in the naxal affected area to decide that the government is restraining whom , the naxals or the media..

All these years, the BJP government headed by Raman singh has said that naxal problem is socio-economic in nature, and it should be dealt in that way only. Bringing black cat commandoes and NSG troopers is not a socio-economic answer to a socio-economic problem, not by any farthest stretch of imagination.

The Legislation bans media from carrying reports of any kind of 'unlawful act'. Media is perhaps the most important party to democracy; and one cannot just stop them from doing what they are required to do, that is to report.

Media is the only front which has stopped the ever susceptible government from being draconian, and it’s the media that the politicians fear. By barring media from reporting, the government of Chhattisgarh is giving a message that they themselves are not sure that how would they tackle naxalism. Behind a closed door anything can happen.

Similarly under section 14 of the legislation any order or legislation by the government or the district magistrate or any other officer authorised by the government shall not be challenged in any court and no injunction shall be granted by any court or any other authority. First you gag the media then you cripple the judiciary. By doing this the government has conferred itself with an absolute power, one with no checks and balances. The judiciary through its several decisions has earned the respect of being the sole repository of the constitution and democracy in this country, and it remains to be seen whether the court will apply the same thinking that it had applied in various cases like Keshavnanda Bharti, Maneka Gandhi, V.G Row or N.B.khare?

It needs to be mentioned here that when the bill was being debated, the main opposition party, the congress was boycotting the assembly and was out of the House. Now it’s up to us to decide that whose blame is it, Congress’s or BJP’s?

The purpose of the Bill as mentioned is to safeguard people's lives and property and to maintain public order, peace and tranquillity. This has always been the reason advanced, be it the case of POTA, or MISA, the argument of safeguarding public peace and welfare has always been taken by the state to justify its policies. The state must realize that Constitutional rights and liberties just cannot be bypassed or ignored under the garb of combating militancy and naxalism

Just months ago the Prime Minister, Dr Manmohan Singh’s in his speech at the Conference of Chief Ministers had said that the democratic government should make a distinction between the genuine and legitimate expression of dissent and disaffection and the manifestations of anti-national, anti-social and anti-people threats to our democratic way of life. He pointed out that while citizens are free to choose the particular brand of politics they wish to follow, they have the freedom to take recourse to collective activity to achieve the social, political or economic changes that they desire, but no one is either permitted or expected to resort to violence to achieve these ends. At the same time, the PM also recognised that “Extremism is not merely a Law and Order issue, Development; or rather the lack of it, often has a critical bearing, as do exploitation and iniquitous socio-political circumstances. This speech sums up the situation of chhattisgarh. This is what is happening in chhattisgarh, but is passing such legislation the answer to the problems? Its not.

Right to freedom has been inscribed under article 19-22 of the constitution. Personal liberty is the most important and the backbone of fundamental rights, without personal liberty a human is not a human. Article 19 provides for six freedoms, viz., freedom of speech and expression, freedom of assembly, freedom to form associations, freedom to movement, freedom to reside and to settle and freedom of profession and occupation. Freedom dismisses fear and empowers people against oppression of all hues; you take away freedom , and this gives oppression more opportunity to thrive.

In AK gopalan case, J. Patanjali Shastri had rightly said that the guarantee of each of the freedom rights is restricted by the constitution, its not an absolute right and the state can impose reasonable restriction as may be in the larger interest of the society, but one crucial aspect that needs to be understood is that the restrictions must not be arbitrary, and its upon the court and not the legislature to decide what is arbitrary.

In Indian express case the court said that the purpose of the press is to advance the public interest by publishing facts and opinions, without which a democratic society cannot make responsible judgements. Freedom of press is the heart of social and political intercourse.

Freedom of press has always been a cherished right of all the democratic nations, and press has always played a very vital role in shaping the democracy, and this freedom cannot be taken away.

Democracy is all about freedom. Freedom of speech, association, participation, expression, you decapitate these freedom, you have beheaded democracy

Environmental degradation- PILs the answer?

Recently a PIL was filed in the Jabalpur High court against the deteriorating state of atmosphere in the City of Bhopal.

The PIL so admitted by the Hon. Madhya Pradesh High Court at Jabalpur comprising of Hon’ble Justice Shri AK Patnaik and Justice RS Jha is sure to raise storms in the administrative corridors as not only the State Pollution Control Board, but the Department of Food and Civil Supply, Union ministry of Petroleum and Gas and Ministry of Environment have also been impleaded as respondents in the PIL.

The PIL states that the main culprit behind the increasing pollution in the city of lakes, as Bhopal is popularly known , are the hundreds of public transport vehicles like the minibuses, three wheelers and the four wheelers which use adulterated medium of fuel, mostly kerosene.

The case of Bhopal is not a unique one; in most of the metros one can see minibuses using kerosene as an alternative fuel and in the process churning out emissions of dangerous proportion. The reason behind this is that kerosene is much cheaper than petrol or diesel being supplied at highly subsidized rates for the poorer sections of society. Thus using kerosene helps is reducing the cost of running as well as maximizing profit.

The law under the Kerosene (restriction on use and fixation of celling price) order, 1993 says that kerosene can be marketed only through Public Distribution System or through Parallel Marketers and it cannot be used for any other purpose other than cooking or for illumination.

According to the study conducted by the Associated Chambers of Commerce and Industry of India (ACCII), more than one-thirds of the subsidized Kerosene is being diverted for black marketing or adulteration by the owners of the Public Distribution System (PDS)(1).

Under Sec. 17(1)(g) of the Air Pollution Act, the State Pollution Control Board has been entrusted with the functions of laying down in consultation with the Central Board standards for emission of air pollutants into the atmosphere from industrial plants and automobiles or for the discharge of any Air pollution into the atmosphere from any other source.

According to reports available with the Madhya Pradesh State Pollution Control Board, out of the 25 cases filed by SPCB against various violators in 2006 , six of them are against State bodies, including the Madhya Pradesh State Electricity Board, the local Municipal Corporation, and the State hospital.

The recent PIL has stated that it’s due to the connivance between the various State Bodies and the Private players that environmental rules and laws are being openly flouted in the state, and the state bodies are at their wits end to explain that why no actions has been taken against the people using kerosene.

Is pertinent hear to mention that the Petitioner Swapnil Verma is a IInd Year Student of National Law Institute University, Bhopal, one of the premier institutions imparting legal education in the country and that he is being represented by Advocate Siddharth Gupta , another product of the same college practicing in Supreme Court.

Its very encouraging sign to see law graduates from the law schools finally giving more important to the social cause, than individual ones. It’s not uncommon to see Law students preferring private law firms instead of going for practice in Bar. A lawyer practicing in the bar may not earn that fat sum of money, but the various noble thought that are inculcated in law schools regarding working for the society and poor can only be attained in the bars.

The government officials in this country suffer from the age old habit of going into deep slumber and it’s the tools like the RTIs and the PILs which can wake them up.

PIL, a tool given birth to by Justices P N Bhagwati and V R Krishna Iyer, sometimes has been accused of as a medium to make cheap publicity or for settling personal scores, but those who have used it for the benefit of society will tell you a different story, ask M C Mehta or the second year student, Swapnil Verma who is the brainchild behind the current PIL.

“It Stings"

"Sting operation" - a comparatively recent phenomenon to the Indian audience, but one that has nonetheless caught the imagination. Politicians, police and other government employees are also very interested, though for all together different reasons and in different ways.

A ‘sting operation’ is a complicated confidence game designed to catch a person, normally sadly committing a crime, by means of deception. In any sting operation "deception" is at the core and is used to gain the target’s trust and confidence.

The Indian version of a sting operation was first publicly demonstrated by Tehelka.com, a news portal now publishing a newspaper in the same name. Tehelka is credited with carrying out 3 major sting operations. The most recent was Operation 'Duryodhana', carried out to expose irresponsible members of parliament demanding and accepting money for raising questions in parliament. This resulted in the suspension of 11 MPs from various parties.

The most infamous sting which has struck in the public mind is the operation carried out by Tehelka.com that caught many senior politicians, including the then BJP president Bangaru Laxman, accepting bribes in return for helping an armaments company secure a contract with the Indian army. Many army officials were also caught on camera promising the fictitious arms dealer the contract in return for money, liquor and in some cases call girls.

Another major Tehelka sting operation exposed the bookies and cricketer's nexus. The operation showed many players free from any guilt, talking and deciding about fixing matches in return for monetary favour.

After a series of 'Tehelkas' the Indian media woke up to this new method of making news, and soon we had many such 'Tehelkas'. Popular news channels were among the most devout students - Star news, Zee news and of course India TV (who some say should change its name to "Sting TV") have all run successful operations.

Unfortunately the popular media gave more importance to quantity rather than quality. So even a "Baba" practiced in ancient herb lore and claiming to be able to cure impotency was projected as a person practicing castration. The whole of UP’s Health Ministry was said to be protecting the Baba. The channel claimed that it had exposed a Baba-health ministry nexus. Similarly a police traffic constable became a national villain when one of the channels caught him asking for Rs. 50 bribe from a bus driver. The whole police system and even the home minister suddenly found themselves in line of fire. Viewers were asked to call and register and rant their voice against this "horrible" incident that the channel was able to record.

India TV became the national 'hero' when it aired how a bollywood actor defined in full view the term "Casting couch". Though voices of protest were heard against the actor, one viewer called up and touched on a more relevant issue; is the media morally right to enter into someone's bedroom?

Important questions need to be answered. To what extent can the media sting? Can it go to any length? Is there a need to draw a line somewhere? Rather than correctly expose wrong doing are fictious conspiracies being sought out and private life wrongfully invaded? These constant sting operations have now become a daily thing, and perhaps even passé?

India is yet to codify effective laws governing media sting operations. After Duryodhana, members of Lok Sabha demanded that a law should be formulated to work as a guideline for any future media stings. Some members wanted that there should be a provision of punishment if the media transgress its boundaries.

Abscam (sometimes ABSCAM) is regarded as the first modern sting operation undertook by any organization. It was an FBI operation, initially targeted at trafficking in stolen property and later widened into a public corruption investigation. It ultimately led to the conviction of a United States Senator, six members of the House of Representatives, the Mayor of New Jersey and members of the Philadelphia City Council. After the sting operation Congress in US expressed its concern and created numerous guidelines like the Civiletti Guidelines (1980-1981), The Smith Guidelines (1983), The Thornburgh Guidelines (1989) and more recently The Reno Guidelines (2001). These guidelines were formulated to serve as a tool to define the extent to which public bodies and the media could go.

The press is seen as the fourth estate of a democracy. It is expected to play the role of watchdog, not just entertainer. The press justifies sting operations on the grounds of having a moral duty to bring out the truth. On the other hand critics argue that the press transgresses its boundaries when it uses hidden cameras to record artificial situations and the offer of hard to resist temptations to entrap an unsuspecting person.

Anirudh Bahl, the man behind Tehelka considers the use of a hidden camera as intrusive and says that it should only be utilized where the public interest quotient is high. According to him it should be left with the media to define what constitutes 'public interest'.

Another important issue in the Indian context is that in India 'entrapment' is undefined, unlike many other countries. In India we don't have a case law which defines 'entrapment'. The law is silent and the media can see a grey area that, according to them, provides an opportunity to conduct such operations.

One should also not forget the risk of the media losing credibility and trust. MPs, politicians and journalists have gone on record to say that sting operations will surely sow mistrust, potentially creating a wall between the media and other sections of society hampering the ultimate mission of publishing said truths and stimulating debate.

It's up to the media to decide that how much liberty it can exercise and where it should stop. The issue in question is not perhaps to sting or not to sting, but rather how to best serve the overall public interest?

Work your way to the top

By providing 27 per cent reservation to the OBCs in premier educational institutes like the IIMs and the IITs, the Congress has once again tried to rejuvenate caste and class politics. Nearly 15 years ago, then Prime Minister VP Singh attempted to do what the Congress is doing now: Appease members of the OBCs, Scheduled Castes and Scheduled Tribes by providing them reserved seats in educational institutes and jobs.

Mr VP Singh failed to realise his objective and so will the Congress, or for that matter any other political party which plays caste politics. But then a rational decision in Indian politics has always been very hard to find.

IIMs and IITs are what they are because of their academic superiority and probably for their tough course structure. It would not be an exaggeration to say that they are certainly not meant for average and mediocre minds. Needless to say, reservation of seats in these institutions will affect the standard of academic excellence for which they have always been known.

It is not that reservation has not existed so far in educational institutes, but it has done little good to the historically wronged people. Over the years, many students belonging to the reserved categories dropped out because they simply could not cope with the academic burden.

For nearly 60 years, reservation policy has not been able to serve its purpose. Let reservation be based on economic condition of candidates. Is not a poor Brahmin, Kshatriya or a Dalit entitled to the same education and reservation? Any reservation, therefore, should be based on income and not birth.

So long as the class and caste divide is present in books and law, reservation will remain a Government policy and will engage minds in endless debates on its merit. Ironically, the concept of reservation was conceived to remove this very class and caste divide.

Ancient texts do talk of dwijas or the twice born who enjoyed high status in social hierarchy. Dwijas could, by means of education, qualify as upper caste. The law recognised such ascension. A newborn does not know what a Dalit is. He is made to understand the meaning as he grows up in subsequent years. India has many other problems that need to be addressed; surely caste and class consciousness must not figure in that list.

(http://dailypioneer.com/displayit1.asp?pathit=/archives2/apr1806/edits/edit4.txt)

Compulsry registration of marriage- a welcome step

The recent Supreme Court verdict making registration of marriages essential is a significant step towards women's welfare. The legal status granted to all marriages will save married women the trouble of running from pillar to post to prove their marital status. Such a law already existed in some parts of the country, including Gujarat, Himachal Pradesh, Karnataka and Maharashtra, but the absence of a Central legislation was being felt which thankfully will be framed after this judgement.

A lot would have been different had this judgment come earlier. It would have helped those women in getting justice who were deserted by their husbands. As it happens with all legislations, the decision to frame such a law has also evolved gradually. Way back in 1970s, the district administration of Bastar ordered the police to surround the township neighbouring the iron ore project of Bailadila to conduct a mass wedding ceremony at gunpoint of non-tribal engineers who were keeping tribal girls as concubines.

The situation was no different in Gujarat where a system prevailed in which a man and a woman entered into a friendship agreement, a legitimate contract before a magistrate. It had a social and legal sanction and was popularly known as "maitri karar". Later this practice was converted into a "service agreement", according to which the man would keep the woman of his choice in his house as a helper or a maid servant. Not surprisingly, this contract, too, had a legal and social legitimacy. It is well known that this practice was followed by many Ministers and senior bureaucrats.

The recent judgement on registration of marriages is being seen by Hindu fundamentalist as an attack on Hindu sentiments and an instrument to Westernise society. On the other hand, their Muslim counterparts are neither against nor for the judgement because according to them, the practice of registering marriages already exists in their community. The only difference is that Muslim marriages are registered by the local maulvi. The point they perhaps seem to be missing is that this decision of the court will make Islamic divorce laws, which are liberal, more difficult to enforce.

The benefits of marriage registration are endless. It would help in the "prevention of child marriages, deter men from deserting women after marriage, discourage parents and guardians from selling their daughters in the garb of marriage, check bigamy/polygamy, help women exercise their matrimonial rights and enable widows to claim inheritance."

Maintenance of official records of marriages would facilitate quick disposal of litigation between two parties. A number of cases filed by deserted wives, victims of bigamous relationships and hapless widows who were robbed of their share in property because they did not have proof of their marriage, are pending in different courts. Surprisingly, the issue of introduction of legislation for compulsory registration of marriages was under consideration for more than 15 years. If this judgement is properly enforced, it will also help to prevent child marriages from taking place among the economically and socially backward communities.

The question is: Will this judgement only add to the huge backlog in the courts? Or will it really empower women and make them equal partners in marriage? Cases in the coming years concerning marital discord hold the answer to this question.

(http://dailypioneer.com/displayit1.asp?pathit=/archives2/feb2106/edits/edit4.txt)

Rights of children

The controversy that the 104th Constitutional Amendment Bill generated nearly obscured another significant Bill: The Commission for Protection of Child Rights Bill, 2005, which was passed in Parliament. It proposes to set up a National Commission for Protection of Child Rights both at the national level and Commissions at the State level.

We already have international laws and treaties like the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights that recognises children are entitled to special care and assistance. These principles are further reiterated by the International Covenant on Economic, Social and Cultural Rights (ICESCR) which declares special measures of protection and assistance to all children without any discrimination for reasons of parentage or other conditions.
"Besides, the Constitution of India also seeks to protect the child against various forms of exploitation. It mandates that "no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment." The Constitution prohibits traffic in human beings and forced labour and prescribes that any contravention of this shall be an offence punishable in accordance with law.

In pursuing its objective of prohibiting child labour Parliament has enacted the Child Labour (Prohibition and Regulation) Act 1986, providing for a uniform definition of "child" as a person who has not completed 14 years of age. While employment of children in hazardous occupations is banned, employment in non-hazardous occupations should be regulated.

This is probably because the problem of child labour is the outcome of poverty and illiteracy, and unless these causes are eradicated, it would be unrealistic to forbid child labour altogether. Despite these constitutional and statutory safeguards, child labour in hazardous industries is still prevalent in many parts of the country.
However, the Commission for Protection of Child Rights Bill, 2005, is seen as an important instrument as it provides for setting up of a separate statutory body, whose purpose will be to work for the furtherance of child right, specially the street children. The Commission will be basically dealing with child health, education, childcare, juvenile justice, welfare of children with disabilities, elimination of child labour, development in the child psychology and laws relating to children.

What needs special attention is the power entrusted with the child commission is of a wide nature, similar to that of the National Human Rights Commission. It can inspect any juvenile custodial home or any other place of residence or institution meant for children for the purpose of treatment, reformation or protection and take up with these authorities for remedial action.

Further, it can also inquire into complaints and take suo-motu notice of matters relating to deprivation of child's rights, non-implementation of laws for protection and development of children, non-compliance of policy decisions, guidelines or to provide relief to such children, or take up the issues arising out of such matters with the appropriate authorities.

Equally important is the spread awareness of children's rights among various sections of the society. The legislature, by way of bringing the Commission for Protection of Child Rights Bill, 2005, has performed its duty of welfare state, but it remains to be seen whether the setting up of Commission would be able to provide succour to the children.

2005 http://dailypioneer.com/displayit1.asp?pathit=/archives2/dec2805/edits/edit4.txt

Secularism & slaughter

Well-known anthropologist Verrier Elwin once wrote, "The humble cow stood between the tribes in the Northeast and Hinduism," adding that he would not have known the cow would become such an important issue.

The Supreme Court's order upholding the 1994 policy of the Gujarat Government banning cow slaughter on October 26, could not have a been better timed. The seven-judge bench led by Chief Justice RC Lahoti maintained that the ban was in the public interest.

However, banning the slaughter of cows will also violate two Fundamental Rights enshrined in the Constitution: The freedom to live at the place of one's choice (Article 21) and the right to carry on any occupation, trade or business (Article 19(1)(g)).

Thus, this prohibition, if we go by a strict interpretation of the Constitution, indulges in satisfying the interest of a particular section in India's multi-cultural, multi-religious society which is against the principle of secularism.
Cow slaughter should not be seen only through a legal perspective, as it involves religious, political as well as economic implications. Political parties have been searching for a way to balance the interest of those who worship cows and those who consume them.

Therefore, the recent decision of the court has put them in dilemma on whether to support the ban or to go against it. If they are for a ban then it will surely dent their Muslim as well as Christian vote-bank. And if they show their unwillingness for the ban, then they would hurt the sentiments of millions of Hindus.

Barring a few Hindu organisations like the VHP and the Bajrang Dal - and to some extent the BJP - no other political party supports the ban, at least not vocally.
Seen from an economic perspective, the proposed ban will severely hit the leather industry, which employs some 2.5 million people across the country. Annually it earns $1.8 billion from exports. There are nearly 4,000 tanneries that employ over 2.5 million people, nearly a third of them women.

According to data available, while 60 per cent of the raw hide for the leather industry comes from slaughtered animals, 30 per cent coem from 'fallen animals' and 10 per cent from imports. The demand for Indian leather in the international market is also quite high. Besides, beef in our country costs less than half the price of lamb or chicken. It is the preferred source of first-class protein for the poor, who constitute a majority of India's population.

An important reason, which has created a schism between those who support the ban and those who don't, is a flawed belief that cow slaughter was started in India by foreign invaders (read Muslims) during the Middle Ages.

Scholars believe that the demand for a ban on cow slaughter began as late as 19th century, which was then a popular tool of mass political mobilisation. However, historical as well as contemporary accounts reveal that animal sacrifice, including slaughter of cows, was a prescribed ritual in many Indian traditions. To what extent these were followed will not be known.

The principle of secularism has its own share of problems, and since it is part of the Constitution, one cannot shy away from the many predicaments which are bound to arise. The need is to carefully draft a policy which provides for an organised, humane method of transporting and slaughtering the animals.

http://dailypioneer.com/displayit1.asp?pathit=/archives2/nov1305/edits/edit4.txt

Impart quality education

The Union Government has made up its mind of bringing the Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee), Bill 2005. Its main objective is to curtail the autonomy currently enjoyed by these private and professional institutes. The ministry of Human Resource Development (HRD) has stirred up a debate by drafting the said bill.

The Bill broadly deals with such issues as regulating the admission and fixing the fee, which primarily lies with the institution itself. Further, it is of the view that a retired Vice-Chancellor, who will be assisted by two experts, should head the decision-making authority. Therefore, the question of fixing the fees and regulating the admission would be in the hands of the aforesaid body.

Apprehensions are being raised that the Bill would arrest the growth and development of private institutes. By tying their hands the proposed law will lead to decrease the quality output. But it should be remembered that the reputed institutes have not made their names solely on the basis of the fees that they charge, but due to the quality education they impart. Parents if given the option between "less fees-inferior education" and "high fees-quality education", would in most cases prefer the latter.

Resources are needed to excel and impart quality education. This is the reason why exorbitant fees are charged. The Constitution of India is not silent on these aspects. However, going by the Constitution, the courts have maintained that excellence in education and permissible increase in fees, both need to be maintained.

Articles 29 and 30 of the Constitution deals with educational rights. The Gujarat High Court in Sidhrajbhai Sabbaj and others vs State of Gujarat (1963) has upheld that regulations are needed to see to it that quality in the form of teachers are not compromised. Also, it gave the view that the infrastructure of an educational institution must follow some minimum level of quality.

In a landmark judgment in Frank Anthony Public Employee Association vs Union of India (1986), the Supreme Court held that the statutory measures regulating terms and conditions of the quality of teachers and employees, which is needed for the purpose of excelling, are not infringement of fundamental rights. The point made in the judgment was that there are enough safeguards to see to it that common people are not exploited on the pretext of giving high quality education.

State level institutions are governed by their respective local laws, which regulate their functioning. So the crucial question is: Why the need of bringing another legislation, whose main aim is to curb the activities of the already curbed private/professional institutes.

When the question of quality education comes, it is not rare to see that more and more of Indian students going abroad for getting education in institutions which are not of a very high repute, but at least provides a minimum level of quality education. Even a poor farmer expects his child to study in reputed college/university. The fee aspect, after all, becomes secondary. Regulations are abounding to control the education system in our country. However, interfering in the core matters of the education institution would rob them of their autonomy.

We are rejoicing over the increasing literacy rate but have we ever observed that how much the word "literate" is limited in our country. For the State the word 'literate' is confined to signing one's name. Is this what education is all about?

(http://dailypioneer.com/displayit1.asp?pathit=/archives2/aug2905/edits/edit4.txt)

Alwar rape case verdict

A fast track court of Rajasthan in a rape case of a German national created a history of some sort and gave a new meaning to the term "speedy justice" when it took only 23 days to announce the verdict of the case, whereby it convicted the accused and sentenced him to seven years in prison. In a similar incident in May 2005, a Jodhpur court just took an astonishing 16 sittings to convict and sentence two men for raping a German woman.
This two decisions will go a long way in reposing the faith of judiciary in the mind of the 'common Indian' citizen or would it be more appropriate to use 'foreign nationals'?
The common and perhaps the most crucial factor that led to the justice being delivered in such a quick time was that the victims in both cases were foreign nationals. The scenario would have been quite different had the victims been Indian national.
The word "prolonged litigation" has stagnated the judiciary to such en extent that even a small petty offence takes year to be decided. Though in the present case the high court taking a suo-motto cognizance of the offence ordered the investigating agency to complete the investigation in one month time, thereby paving the way for a quick investigation, prosecution and judgment. The judicial activism showed by the court was exemplary to say the least, but then why is this "activism" active in some cases only?
In the present case the cops filed the chargesheet in four days, though they had ninety days and the forensic lab too followed suit by submitting its report in four days rather than taking months.
The question that needs to be answered is that why this job-efficiency and determination not practiced in other rape cases or crime?
It was not the first rape case that was to be before the Rajasthan high court and surely it would not be the last. Why isn't the same thrust put on disposing and hearing the rape cases in which the victim is an Indian national?
The reasons for this two-pronged approach are clear. In the present case the victim was a German tourist, and the incident occurred in a state which is heavily dependent on foreign tourism. So it was more than vital for the state government to take a personal interest in the case. Secondly the victim had right people at the right places. All that was required was pulling some strings in the German embassy.
The media too played its part and made sure that the plight of the German woman was felt by everyone. It has once again proved that it has its own idea of what should be covered and what shouldn't be. It seems that the media through all these years of print and electronic journalism has arrived at a position where it can decide which "rape" is to be highlighted and which is not to be. Or else why the rape of a poor village woman is not reported as extensively as this present case was covered?
All this proves that the judiciary, the police and the media have adopted a double standard, which is based on the status of the victim.
No doubt that our judiciary does deserve a pat on the back, for showing that if it wants it can deliver what is expected from it. It has set a precedent which if ideally followed would go a long way in upholding justice. However "double standards" should be done away with. A rape is a rape, a crime which kills a woman before she dies, and differentiating this unpardonable crime on grounds of social status is just not tolerable.


(http://www.centralchronicle.com/20060414/1404304.htm)

Systemic reforms needed to rejuvenate the judiciary

As India celebrates this year as Year of Excellence in Judiciary, one needs to explore ways to rejuvenate the administration of justice at various levels. During a recent visit to Bhopal, the Chief Justice of India, Justice R.C. Lahoti said that one of the main reasons for the judiciary’s failure to deliver quick justice is the lack of manpower to clear the huge backlog of over 30 million cases. He also advocated changes in the legal system to expedite justice.

Clearly, the increasing number of cases proves that the people’s faith in the judiciary is also increasing. But the number of judges is too small to handle the workload. One of the suggestions is for fixing a timeframe within which the case should be heard and decided. But what is required is both increasing the strength of the judges and the timeframe. At the same time, there is need for revamping the whole procedural law and bringing new laws which would reduce delays.

We still follow a legal system introduced by the British to suit their needs. Our lawmakers have designed the system in such a way that cases go on and on to give maximum chance to the accused to prove that they are innocent. One cannot blame them because the very system presented an opportunity to the law to be misguided.

The law enforcing authority (read Police) may be given more powers but with necessary safeguards so that petty cases are solved at the ground level itself, thus reducing the burden on the judiciary. Another solution is for revamping the procedural law, giving jurisdiction and authority to the police to deal with such offences which need not go to the courts.

Creating a new and parallel system, the same as the existing one, but only one with jurisdiction and authority to decide cases of petty nature can also be an answer. This will lead to the dilution of cases right at the inception stage. This will serve two purposes: easing the burden on judiciary; and settlement of these types of cases within a short time.

The aspect of appeal and re-appeal should be looked into. If a party to the dispute is not satisfied from the decision of the district court, it appeals to the High Court and, if still unsatisfied, goes to the Supreme Court. Though it is the discretion of the concerned court to allow the party to appeal, in most cases, the appeal is allowed. Consequently, loose implementation of the process of appeal leads to the loss of valuable time, though the higher court only hears the same facts again including the examination of the same witnesses.

Why, then, follow the same practice of wasting time and resources again and again? Clearly, provisions for appeal need to be tightened: the petitioner should have a substantial ground for seeking an order of appeal.

A careful study of the Criminal Procedure Code and the Civil Procedure Code would suggest that though these laws have numerous offences listed under various heads, some of the offences can be clubbed together. It would be appropriate to suggest that the minute distinction between various sections should be removed and offences of similar nature should find place in one section. This will go a long way in reducing the filing of a single case under various sections and thus help reduce the time and resources.

Keeping in view the increasing workload on the judges, it must be made explicitly clear how many cases a judge needs to hear everyday. Similarly, the region falling under the jurisdiction of a single judge should not be too large. Otherwise, it won’t be of any help because the judges will be forced to decide a large number of cases. Dividing regions into small numbers and appointing judge for every region would help reduce the burden on a single judge. The end result would be that each case could be decided within a reasonable timeframe.

Unfortunately, the Union Law Ministry has not done enough work on judicial reforms. The kind of importance this Ministry holds, one would have expected it to be treated at par with any other governmental department like Finance, Home or Defence. But this has not been the case. There is reasonable justification for increasing the budget for the Law Department. More resources should be allocated to the various branches of the Law Ministry keeping development and reforms in sharp focus.

Many state governments have put a moratorium on inducting new judges. This should be revoked, and regular induction of judges should take place on the basis of examinations. Also the time period of promotion of a Sessions Judge to the High Court should be reduced.

President A.P.J. Abdul Kalam, while delivering the convocation address at Jodhpur Law University recently, suggested the creation of Indian Judicial Service (IJS). He promised to write to the government on this issue. The creation of IJS, on the pattern of the Indian Administrative Service (IAS), will help expedite pending cases as young judges will be more active, enterprising and render speedy service. The recruitment norms and procedures for the IJS could be on the lines of the Civil Services examination conducted by the Union Public Service Commission.

Institutes like the National Judicial Academy (NJA) in Bhopal should be given due attention. Every region in the country should have an institute based on the NJA model. The NJA’s basic aim is to train judges, improve their skill, and make them acquainted with legal fields like cyber law, arbitration law, environmental law etc. These areas, having developed in recent times, need to be given the attention they deserve.

National law schools in various parts of the country have been playing their part, by giving well-informed, well-moulded legal graduates. Encouragingly, there are more than 12 law schools all over the country.

As this year is being celebrated as Year of Excellence in Judiciary, we have to strive for the all round improvement in the judiciary.

http://www.tribuneindia.com/2005/20050320/edit.htm#2