The objective of President’s Rule can be neither furthered nor hindered by anaesthetising the Legislative Council.
The Hindu 20th March 2008
A Judge of the Karnataka High Court intercepted me during my morning walk and asked: “Why have you not held a session of the Legislative Council? That will add a new dimension to our constitutional jurisprudence.”
That is a question that has been asked by a countless number of people. Indeed, the Judge was referring to an ongoing public discussion in the wake of the imposition of President’s Rule in Karnataka. Does the Legislative Council cease to function while the Legislative Assembly is dissolved by the operation of Articles 356 and 357 of the Constitution?
Literal interpretation
Yes, say the literal interpreters of the Constitution. They argue that the Upper House is clinically dead but kept alive with life support during such a period. They are, quite rightly, guided by the wording in the Presidential Proclamation suspending several Articles of the Constitution: Article 174(1) and (2) which empower the Governor to summon each House of the Legislature and prorogue it; Article 194 dealing with the powers, privileges, and so on of the Legislature, its members and committees; Article 208 which empowers the framing of rules of procedure for the conduct of the Legislature; and, above all, the provision, 356(1)(b), which declares that “the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.”
This, they claim, extinguishes any activity of the Council notwithstanding what Article 172(2) declares: that the “Legislative Council of a State shall not be subject to dissolution.” On the other hand, the liberalist approach would argue that it could never have been the intention of the Constitution or even of the Home Ministry that the consequences of the suspension of the provisions just mentioned should visit the Legislative Council as well.
How does one understand the mandate that the Council “shall not” be subject to dissolution? An answer to this did not figure in the frank yet highly civilised dialogue with the Governor and others. India’s top lawyer F.S. Nariman tried to help them while inaugurating a seminar on the role and status of the Legislative Council: “There was a purpose in Article 172(2)... these words are of vital import. The message that is sent out by our Constitution is clear — that its members are expected to deliberate and continue to deliberate on a continuing basis... there is total lack of understanding of our Constitution.”
Continued deliberation
“Continued deliberation” could be: 1. A Council session convened for a limited purpose: limited in the absence of a whole range of governmental business as well as Question Hour, and so on; 2. It could be in the various committees exclusive to the Council (since the Assembly has been dissolved); 3. It could even be for a legitimate, formal consultation with the “executive committee” comprising the Governor, his Advisors and the Chief Secretary.
The Council could not be convened since Article 174 which empowers the Governor to “summon the House or each House of the Legislature of the State...” has been suspended. Significantly, “each House” can be summoned. In other words, the Council alone can be summoned if the reach of that disabling order was confined to the Assembly.
Simple modification
The Governor is perfectly right in expressing his helplessness in the matter. Since a functioning Council cannot be an obstacle to the working of President’s Rule, a simple modification to the Presidential Proclamation would have been proper. I believe that, in future, any unwarranted mechanistic listing of suspended Articles enveloping the Upper House would be avoided.
“But what prevents the functioning of our Committees on Petitions, Governmental Assurances, and Privileges?” ask the MLCs. Surely, Article 174 is not relevant here? Maybe, but the Governor has been advised thus: “When the Presidential Proclamation categorically states that all the functions of the Legislature [which undoubtedly includes Legislative Council] are taken over by Parliament, it is impossible to conceive that the Legislative Council could function simultaneously. The Committees of the Legislative Council being [an] extended wing of the Council, the said Committees also cannot function.”
The Advocate-General’s first opinion had categorically advised the Council to go ahead with its committees. Curiously, however, he changed it subsequently on the ground that the Proclamation took away “all the functions of the Legislature,” to be handled by Parliament.
But lo and behold, it does not. While the Proclamation refers to “all functions of the Government,” it clearly and in a separate paragraph refers only to “the powers of the Legislature,” and not to “all the functions of the Legislature.” The term “powers of the Legislature” can only mean the law-making power, and the Legislative Council does not, on its own, make laws. Committee work, on the other hand, is in a completely different category. Committees ought to continue against the background that the Legislative Council “shall not be subject to dissolution.”
Secondly, it will be untenable to keep the Council, in effect, in a state of “suspended animation.” That concept was formulated in Bommai (1994) and is applicable only to the Assembly.
Right of consultation
Finally, as to “consultation” with the MLCs of a living House, it is disturbing to be told that they have no explicit “right” of consultation.
“What earthly purpose will be served in continuing as Legislators of a House which cannot be dissolved and certainly cannot be ‘suspended’ like the Assembly but which is not allowed to function?”, is another question thrown at me by the MLCs. I have maintained a diplomatic silence.
The objective of President’s Rule is to prepare the ground for fresh elections to elect a new government which can function in accordance with the Constitution. That objective can be neither furthered nor hindered by anaesthetising the Legislative Council.
(The author is Chairman, Karnataka Legislative Council.)
Thursday, March 20, 2008
Friday, March 07, 2008
How to . . . improve your drafting
From Times Online
March 3, 2008
The written side of litigation may not be as glamorous but it's where much of the war is fought, says Catherine Newman, QC
Catherine Newman, barrister
Interview by Alex Aldridge
Become a better lawyer: running a case, doing a deal, moving in-house and other tips from the top
Some people love to seem so clever. When I was younger I used to think that I was too stupid to understand those documents where you have to read a paragraph several times in order to understand it. But gradually I realised that the problem was that some people simply have a drafting style that is far too complex. Look at the speeches of the great House of Lords judges of our day: beautifully written but in plain, clear English.
Ambiguity is what gets lawyers into trouble. When writing a formal opinion one is able to think about exactly how to phrase something. But with advice increasingly being given more casually, there’s much greater scope for confusion to creep in. The immediacy of email means there’s an awful temptation to dispense with the polishing stage — and in litigation a little bit of polishing can make a huge difference.
Try not to make your missives too stinging. Many moons ago I was asked to draft an opinion explaining to a country solicitor why a client couldn’t extract money from a company that the court had ordered her to hand over to the other side. Of course, it was glaringly obvious that such a course of action would have been completely improper and likely to result in further litigation. Being very young, I may well have used that term “improper”. I certainly didn’t pull my punches. The response, a copy of which I still have to this day, begins: “I have received a stinging missive from Miss Chariots of Fire, who is fortunate that she does not have to make a living by the exercise of personal charm . . .”
Gradually you learn to code your language in more outwardly acceptable terms. A Chancery favourite is “utterly misconceived.” I use that a lot. Or, “We’re finding it rather difficult to understand the point you’re making.” If you receive that one, you can be sure that the other side thinks you’re talking complete bollocks.
A large part of the war occurs in the correspondence. I give the same level of consideration to drafting letters to the other side as I do to writing formal opinions. “Dear Judge” letters, I call them, because even if they’re written before litigation has commenced, they should always be drafted with the eyes of the judge in mind. They’re your opportunity to show not only that your client has behaved reasonably and sensibly from the beginning, but — and this is crucial for getting your costs if you win — that you’ve grasped the essential legal issues early on and have stuck to them.
Develop a flexible, anonymous style. If people spot your hand in the drafting, they may use it against you. There was an arbitration where we were against a solicitor based in Kazakhstan, who wrote the most mind-bogglingly rude letters — always unwise as judges hate correspondence that unnecessarily raises the temperature. This guy’s downfall was his inability to resist using certain pet phrases over and again. His client would never go to a meeting; he’d go to “a high level meeting with senior personnel” — that sort of stuff. It didn’t take long to spot the documents in which he’d had a hand.
Do your best to assist the court. Sitting part-time as a judge in Guernsey and as a recorder in the Crown Court, I’m well aware that case files often arrive on a judge’s desk at 4.15 in the afternoon on the day before a hearing begins. I always try to provide a thumbnail picture of my client’s arguments early on in my skeleton argument, just in case whoever is trying the case hasn’t managed to plough through everything I’ve written.
Other barristers are rather more cynical. I certainly know of two or three members of the profession who, when they don’t have a strong case, deliberately obfuscate by making their skeletons as long-winded and confusing as possible in the hope that the judge won’t have time to untangle the various arguments.
The written aspect of the job may not be as glamorous as the oral side of things. But it’s something that we commercial barristers take enormous pride in. I remember being asked as a very junior barrister to prepare a note on a particular section of an act of parliament that the court was construing. To my absolute delight, Lord Hoffmann (then a first instance judge), included a very brief acknowledgment of my “helpful” note in his judgment. Now that was real praise.
Catherine Newman, QC, is a barrister at Maitland Chambers
March 3, 2008
The written side of litigation may not be as glamorous but it's where much of the war is fought, says Catherine Newman, QC
Catherine Newman, barrister
Interview by Alex Aldridge
Become a better lawyer: running a case, doing a deal, moving in-house and other tips from the top
Some people love to seem so clever. When I was younger I used to think that I was too stupid to understand those documents where you have to read a paragraph several times in order to understand it. But gradually I realised that the problem was that some people simply have a drafting style that is far too complex. Look at the speeches of the great House of Lords judges of our day: beautifully written but in plain, clear English.
Ambiguity is what gets lawyers into trouble. When writing a formal opinion one is able to think about exactly how to phrase something. But with advice increasingly being given more casually, there’s much greater scope for confusion to creep in. The immediacy of email means there’s an awful temptation to dispense with the polishing stage — and in litigation a little bit of polishing can make a huge difference.
Try not to make your missives too stinging. Many moons ago I was asked to draft an opinion explaining to a country solicitor why a client couldn’t extract money from a company that the court had ordered her to hand over to the other side. Of course, it was glaringly obvious that such a course of action would have been completely improper and likely to result in further litigation. Being very young, I may well have used that term “improper”. I certainly didn’t pull my punches. The response, a copy of which I still have to this day, begins: “I have received a stinging missive from Miss Chariots of Fire, who is fortunate that she does not have to make a living by the exercise of personal charm . . .”
Gradually you learn to code your language in more outwardly acceptable terms. A Chancery favourite is “utterly misconceived.” I use that a lot. Or, “We’re finding it rather difficult to understand the point you’re making.” If you receive that one, you can be sure that the other side thinks you’re talking complete bollocks.
A large part of the war occurs in the correspondence. I give the same level of consideration to drafting letters to the other side as I do to writing formal opinions. “Dear Judge” letters, I call them, because even if they’re written before litigation has commenced, they should always be drafted with the eyes of the judge in mind. They’re your opportunity to show not only that your client has behaved reasonably and sensibly from the beginning, but — and this is crucial for getting your costs if you win — that you’ve grasped the essential legal issues early on and have stuck to them.
Develop a flexible, anonymous style. If people spot your hand in the drafting, they may use it against you. There was an arbitration where we were against a solicitor based in Kazakhstan, who wrote the most mind-bogglingly rude letters — always unwise as judges hate correspondence that unnecessarily raises the temperature. This guy’s downfall was his inability to resist using certain pet phrases over and again. His client would never go to a meeting; he’d go to “a high level meeting with senior personnel” — that sort of stuff. It didn’t take long to spot the documents in which he’d had a hand.
Do your best to assist the court. Sitting part-time as a judge in Guernsey and as a recorder in the Crown Court, I’m well aware that case files often arrive on a judge’s desk at 4.15 in the afternoon on the day before a hearing begins. I always try to provide a thumbnail picture of my client’s arguments early on in my skeleton argument, just in case whoever is trying the case hasn’t managed to plough through everything I’ve written.
Other barristers are rather more cynical. I certainly know of two or three members of the profession who, when they don’t have a strong case, deliberately obfuscate by making their skeletons as long-winded and confusing as possible in the hope that the judge won’t have time to untangle the various arguments.
The written aspect of the job may not be as glamorous as the oral side of things. But it’s something that we commercial barristers take enormous pride in. I remember being asked as a very junior barrister to prepare a note on a particular section of an act of parliament that the court was construing. To my absolute delight, Lord Hoffmann (then a first instance judge), included a very brief acknowledgment of my “helpful” note in his judgment. Now that was real praise.
Catherine Newman, QC, is a barrister at Maitland Chambers
Putting the executive in its place
B.P. Jeevan Reddy
The Hindu , March 6,2008
If the government ignores the will of Parliament and proceeds to finalise the Indo-U.S. nuclear deal, it would mean the executive is asserting its supremacy over Parliament – an unacceptable situation, constitutionally speaking.
A basic premise of the parliamentary system of government is the supremacy of Parliament. The executive — the political executive — is drawn from and is a part of Parliament. It is not independently elected.
While Parliament can override the executive will, the converse is not, and cannot be, true. India has adopted the parliamentary form of government both at the Centre and the States.
The Constitution is not exhaustive of the constitutional system prevailing in our country; conventions are a part of and constitute an essential component of the system. This is a proposition no student of constitutional law would dispute. In many respects, the Constitution is silent and the silences are filled by the conventions. Just as we have borrowed the parliamentary system of government from the United Kingdom, so have we borrowed its conventions too — with appropriate adaptations, of course.
By way of illustration, there is no provision in the Constitution requiring the President to invite the leader of the single largest party in the Lok Sabha to form a government. Article 75(1) merely says: “The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.”
Literally read, the President can as well invite the leader of the second largest party and give him or her sufficient time to cobble up a working majority by one or another means. It is the convention that obligates the President to invite the leader of the single largest party or the single largest pre-election formation to form a government and no President will dare to violate this convention.
Another instance: Prior to amendment of clause (1) of Article 74 by the Constitution (Forty Second) Amendment Act, the Constitution did not say in so many words that the President is bound to act in accordance with the advice tendered to him by the Council of Ministers with the Prime Minister at its head. Literally read, the clause enables the President to ignore such advice and act in his discretion. But soon after the commencement of the Constitution, when a doubt was raised on this point, it was made clear to the President by the highest legal functionary of the state — which he gracefully accepted — that since India has adopted the British parliamentary system and conventions, the President is bound by, and is bound to act in accordance with, such advice. There was never any departure from this convention. Of course, the 42nd Constitutional Amendment Act, 1976 expressly incorporated this convention in the Constitution. Even without this amendment, it is clear, the position would be the same. The decisions of the Supreme Court in 1955 (Ram Jawaya Kapur) and 1974 (Shamsher Singh) make it clear that we have borrowed the British parliamentary system, with all that goes with it.
Negation of concept
On the Indo-U.S. nuclear deal, a substantial majority of Parliament has made its position clear: it is opposed to the deal in the present form, particularly because of the governing provisions of the Hyde Act passed by U.S. Congress. The question is not whether the majority is right — or whether the government is not right. The political executive cannot sit in judgment over the wisdom, or the motives, of the majority in Parliament; it has to abide by it. Otherwise, it would be a clear negation of the very concept of parliamentary form of government.
If the executive (the Government of India) ignores the will of Parliament and proceeds to finalise the deal, it would mean the executive is asserting its supremacy over Parliament — an unacceptable situation, constitutionally speaking. On the other hand, every action of the executive can be reviewed by Parliament; no act of the executive is immune from legislative oversight. To assert the contrary is to undermine the very concept of the accountability of the executive to Parliament [recognised in Article 75(3)] as also the concept of parliamentary supremacy over the executive. A situation should not be allowed to develop where the majority in Parliament is driven to pass a resolution disapproving the nuclear deal, which may compel the government to tender its resignation.
It is true that under our constitutional system — again following British practice — it is for the government of the day to enter into treaties with foreign powers and that there is no provision for approval or ratification of such treaties by Parliament or by either of its Houses. But under our Constitution, it is not an unquestionable right of the executive. It can be controlled and regulated by our Parliament by making a law as contemplated by Entry 14 of the Union List in the Seventh Schedule to the Constitution.
It is true that Parliament has not so far made any law with reference to this Entry laying down the parameters of and/or laying down the manner in which this power has to be exercised. Our Parliament has chosen not to act in the matter despite the experience of the Uruguay Round of GATT Treaties — in particular, the Agreement on TRIPS (Trade-Related Intellectual Property Rights) where the executive signed the agreement containing provisions directly contrary to the recommendations of a parliamentary committee of 40 members drawn from all parties.
But all this does not mean that when a substantial majority in both the Houses expresses itself unambiguously against this particular agreement signed by the government, the latter is entitled to ignore Parliament’s will and go ahead and finalise the deal — as it is made to appear from recent statements emanating from governmental circles. It is not really necessary to go into the question whether the agreement entered into between India and the U.S. on civilian nuclear cooperation amounts to a ‘treaty’ or whether it is a mere ‘agreement.’ Whether it is a treaty or a mere agreement, the action of the government entering into it is not — and cannot be — outside the purview of Parliament. It is also not a question of procedure, namely under which rule of the House Parliament expressed its intention. It is a matter of substance and of democratic ethos and political morality.
Wrong precedent
That Parliament has expressed its will in unambiguous terms is enough. If the Government of India yet proposes to proceed to finalise the 123 agreement, it would be a wrong, and an unhealthy, nay, an undemocratic, step and would amount to laying down a wrong precedent for the future governments to follow. The Preamble to our Constitution speaks of the resolve of the people of India to constitute India into a “Democratic Republic” among other requisites. It is Parliament that represents the will of the people — not the executive, which is only a part of Parliament. It is inconceivable that a part can defy the whole.
A passing thought: if the foreign policy of a country is meant to subserve the interests of that state — and not be an exercise in charity — one finds it amusing to see hordes of incumbent and former officials of the U.S. government descending on India to persuade, cajole, advise, and threaten us into finalising the djavascript:void(0)
Publish Posteal at the earliest.
(Justice B. P. Jeevan Reddy is a former Judge of the Supreme Court of India and a former Chairman of the Law Commission of India.)
The Hindu , March 6,2008
If the government ignores the will of Parliament and proceeds to finalise the Indo-U.S. nuclear deal, it would mean the executive is asserting its supremacy over Parliament – an unacceptable situation, constitutionally speaking.
A basic premise of the parliamentary system of government is the supremacy of Parliament. The executive — the political executive — is drawn from and is a part of Parliament. It is not independently elected.
While Parliament can override the executive will, the converse is not, and cannot be, true. India has adopted the parliamentary form of government both at the Centre and the States.
The Constitution is not exhaustive of the constitutional system prevailing in our country; conventions are a part of and constitute an essential component of the system. This is a proposition no student of constitutional law would dispute. In many respects, the Constitution is silent and the silences are filled by the conventions. Just as we have borrowed the parliamentary system of government from the United Kingdom, so have we borrowed its conventions too — with appropriate adaptations, of course.
By way of illustration, there is no provision in the Constitution requiring the President to invite the leader of the single largest party in the Lok Sabha to form a government. Article 75(1) merely says: “The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.”
Literally read, the President can as well invite the leader of the second largest party and give him or her sufficient time to cobble up a working majority by one or another means. It is the convention that obligates the President to invite the leader of the single largest party or the single largest pre-election formation to form a government and no President will dare to violate this convention.
Another instance: Prior to amendment of clause (1) of Article 74 by the Constitution (Forty Second) Amendment Act, the Constitution did not say in so many words that the President is bound to act in accordance with the advice tendered to him by the Council of Ministers with the Prime Minister at its head. Literally read, the clause enables the President to ignore such advice and act in his discretion. But soon after the commencement of the Constitution, when a doubt was raised on this point, it was made clear to the President by the highest legal functionary of the state — which he gracefully accepted — that since India has adopted the British parliamentary system and conventions, the President is bound by, and is bound to act in accordance with, such advice. There was never any departure from this convention. Of course, the 42nd Constitutional Amendment Act, 1976 expressly incorporated this convention in the Constitution. Even without this amendment, it is clear, the position would be the same. The decisions of the Supreme Court in 1955 (Ram Jawaya Kapur) and 1974 (Shamsher Singh) make it clear that we have borrowed the British parliamentary system, with all that goes with it.
Negation of concept
On the Indo-U.S. nuclear deal, a substantial majority of Parliament has made its position clear: it is opposed to the deal in the present form, particularly because of the governing provisions of the Hyde Act passed by U.S. Congress. The question is not whether the majority is right — or whether the government is not right. The political executive cannot sit in judgment over the wisdom, or the motives, of the majority in Parliament; it has to abide by it. Otherwise, it would be a clear negation of the very concept of parliamentary form of government.
If the executive (the Government of India) ignores the will of Parliament and proceeds to finalise the deal, it would mean the executive is asserting its supremacy over Parliament — an unacceptable situation, constitutionally speaking. On the other hand, every action of the executive can be reviewed by Parliament; no act of the executive is immune from legislative oversight. To assert the contrary is to undermine the very concept of the accountability of the executive to Parliament [recognised in Article 75(3)] as also the concept of parliamentary supremacy over the executive. A situation should not be allowed to develop where the majority in Parliament is driven to pass a resolution disapproving the nuclear deal, which may compel the government to tender its resignation.
It is true that under our constitutional system — again following British practice — it is for the government of the day to enter into treaties with foreign powers and that there is no provision for approval or ratification of such treaties by Parliament or by either of its Houses. But under our Constitution, it is not an unquestionable right of the executive. It can be controlled and regulated by our Parliament by making a law as contemplated by Entry 14 of the Union List in the Seventh Schedule to the Constitution.
It is true that Parliament has not so far made any law with reference to this Entry laying down the parameters of and/or laying down the manner in which this power has to be exercised. Our Parliament has chosen not to act in the matter despite the experience of the Uruguay Round of GATT Treaties — in particular, the Agreement on TRIPS (Trade-Related Intellectual Property Rights) where the executive signed the agreement containing provisions directly contrary to the recommendations of a parliamentary committee of 40 members drawn from all parties.
But all this does not mean that when a substantial majority in both the Houses expresses itself unambiguously against this particular agreement signed by the government, the latter is entitled to ignore Parliament’s will and go ahead and finalise the deal — as it is made to appear from recent statements emanating from governmental circles. It is not really necessary to go into the question whether the agreement entered into between India and the U.S. on civilian nuclear cooperation amounts to a ‘treaty’ or whether it is a mere ‘agreement.’ Whether it is a treaty or a mere agreement, the action of the government entering into it is not — and cannot be — outside the purview of Parliament. It is also not a question of procedure, namely under which rule of the House Parliament expressed its intention. It is a matter of substance and of democratic ethos and political morality.
Wrong precedent
That Parliament has expressed its will in unambiguous terms is enough. If the Government of India yet proposes to proceed to finalise the 123 agreement, it would be a wrong, and an unhealthy, nay, an undemocratic, step and would amount to laying down a wrong precedent for the future governments to follow. The Preamble to our Constitution speaks of the resolve of the people of India to constitute India into a “Democratic Republic” among other requisites. It is Parliament that represents the will of the people — not the executive, which is only a part of Parliament. It is inconceivable that a part can defy the whole.
A passing thought: if the foreign policy of a country is meant to subserve the interests of that state — and not be an exercise in charity — one finds it amusing to see hordes of incumbent and former officials of the U.S. government descending on India to persuade, cajole, advise, and threaten us into finalising the djavascript:void(0)
Publish Posteal at the earliest.
(Justice B. P. Jeevan Reddy is a former Judge of the Supreme Court of India and a former Chairman of the Law Commission of India.)
Sunday, February 24, 2008
Gurgaon no exception
The incident of organ trade is shocking but not surprising in a country where there is an annual demand for 150,000 kidneys, while the transplants remain only 3,500. It's time authorities streamlined organ transplant law
The kidney excavations at knife-point has been among the biggest stories during the last two weeks. The principal targets are three -- the police for conniving with and even facilitating the macabre organ digger, the health authorities for not doing enough to stop organ trade and medicos for hoodwinking and causing the poor to bleed (sometimes to death.)
The story revives memories of Robin Cook's novel and the film Coma (1978) which unraveled a grotesque story of how young men and women visiting a particular hospital for a simple procedure, were deliberately rendered comatose; to be strung up brain dead until their livers and kidneys were harvested by ruthless auctioneers operating a bizarre global organ trade.
The Gurgaon kidney scam is no less wacky. The difference is that in the novel, the victims were young, educated, independent and able-bodied. The Gurgaon outfit sounded rudimentary and the victims were poor, illiterate and defenceless. The only reason why it made so much news was because at long last at least one racketeer had been nabbed. Otherwise, accounts about South Indian fisherfolk ravaged by the tsunami selling off a kidney each for Rs 50,000 and 50 per cent of village populations in Pakistan living on one kidney have been recounted for years; as have been reports about thousands of organs purloined from Chinese prisoners fated for execution.
But the exposé and the notoriety that surrounds the Gurgaon scam demand wider thinking about the issue. Kidneys are the most frequently transplanted organs (around the world). In a country where poverty is ubiquitous, life is cheap and demand outstrips the supply, strategies have to be practical. Several countries have a solution whereby the donor has to explicitly dissent to organ donation during his lifetime.
In the US, the regulation of organ donation is left to individual States within the limitations of the Federal National Organ Transplant Act, 1968. Many States in the US have encouraged organ donation by allowing the donor's consent to be entered on the driver's licence. Thereafter, state regulations lay down the systems and processes to be followed.
In the early 1990s when I was the Secretary for Medical and Public Health in Delhi, doctors and policemen made several suggestions. Pass a law, they suggested, that in case an accident victim's body is not claimed on the spot, the organs may be harvested at a designated facility and used according to the registry of needy recipients. Looking at the number of accident cases involving young people, it will be easy to operationalise this strategy, particularly if it were coupled with the consent given on the driving licence.
Efforts have been on for decades to persuade the public to donate just corneas -- far less threatening than retrieving kidneys, but to little avail. Aishwarya Rai has fluttered her gorgeous lashes on countless television commercials encouraging people to pledge their eyes (like her), but the supply remains woefully short. The Economic and Political Weekly writing editorially has referred to an annual demand for 1,50,000 kidneys while the transplants remain only 3,500. The well-intentioned 1994 Organ Transplant Act has clearly failed to prevent the illegal trade of kidneys because criminals would hardly present themselves before the authorisation committee to humbly seek permission.
The recent comments by the Chief Justice of the Supreme Court that the problem is with the implementation and not the law appear to address the enforcement angle. However, no less important is the fact that in a country where poverty drives people to sell their land, house, livestock, jewellery and even children, what is the value of a kidney for the love of money? Especially when it is possible to live perfectly well on its pair?
There is also the whole question of the emotiveness that surrounds death. Whether Indians exhibit their feelings more or less is not the point. In the Indian context, when funeral rites are given such enormous importance, few families would be willing to face the additional trauma of waiting for organ removal in a hospital setting. It is not that the idea of harvesting organs or the establishment of organ banks should not be pursued. The point only is that it will take a long time to convince families overwrought with grief to take decisions and get embroiled with hospitals and operation theatres for one minute longer than necessary. The consent on the driving licence is perhaps a good way of giving freedom to the individual, but also to the police to whisk away deceased accident victims for organ retrieval while preserving the body for the last rites.
Second, it is the fundamental duty of every local Government to build awareness among poor people that they might be compromising their lives by agreeing to donate a kidney. For starters, all construction and building contractors should be enjoined under municipal regulations to display a film about the harmful effects of kidney removal, for all hired labour. The message may yet percolate to a wider group of poor people -- particularly those living in urban areas where nursing hospitals, homes and kidney seekers abound.
The kidney excavations at knife-point has been among the biggest stories during the last two weeks. The principal targets are three -- the police for conniving with and even facilitating the macabre organ digger, the health authorities for not doing enough to stop organ trade and medicos for hoodwinking and causing the poor to bleed (sometimes to death.)
The story revives memories of Robin Cook's novel and the film Coma (1978) which unraveled a grotesque story of how young men and women visiting a particular hospital for a simple procedure, were deliberately rendered comatose; to be strung up brain dead until their livers and kidneys were harvested by ruthless auctioneers operating a bizarre global organ trade.
The Gurgaon kidney scam is no less wacky. The difference is that in the novel, the victims were young, educated, independent and able-bodied. The Gurgaon outfit sounded rudimentary and the victims were poor, illiterate and defenceless. The only reason why it made so much news was because at long last at least one racketeer had been nabbed. Otherwise, accounts about South Indian fisherfolk ravaged by the tsunami selling off a kidney each for Rs 50,000 and 50 per cent of village populations in Pakistan living on one kidney have been recounted for years; as have been reports about thousands of organs purloined from Chinese prisoners fated for execution.
But the exposé and the notoriety that surrounds the Gurgaon scam demand wider thinking about the issue. Kidneys are the most frequently transplanted organs (around the world). In a country where poverty is ubiquitous, life is cheap and demand outstrips the supply, strategies have to be practical. Several countries have a solution whereby the donor has to explicitly dissent to organ donation during his lifetime.
In the US, the regulation of organ donation is left to individual States within the limitations of the Federal National Organ Transplant Act, 1968. Many States in the US have encouraged organ donation by allowing the donor's consent to be entered on the driver's licence. Thereafter, state regulations lay down the systems and processes to be followed.
In the early 1990s when I was the Secretary for Medical and Public Health in Delhi, doctors and policemen made several suggestions. Pass a law, they suggested, that in case an accident victim's body is not claimed on the spot, the organs may be harvested at a designated facility and used according to the registry of needy recipients. Looking at the number of accident cases involving young people, it will be easy to operationalise this strategy, particularly if it were coupled with the consent given on the driving licence.
Efforts have been on for decades to persuade the public to donate just corneas -- far less threatening than retrieving kidneys, but to little avail. Aishwarya Rai has fluttered her gorgeous lashes on countless television commercials encouraging people to pledge their eyes (like her), but the supply remains woefully short. The Economic and Political Weekly writing editorially has referred to an annual demand for 1,50,000 kidneys while the transplants remain only 3,500. The well-intentioned 1994 Organ Transplant Act has clearly failed to prevent the illegal trade of kidneys because criminals would hardly present themselves before the authorisation committee to humbly seek permission.
The recent comments by the Chief Justice of the Supreme Court that the problem is with the implementation and not the law appear to address the enforcement angle. However, no less important is the fact that in a country where poverty drives people to sell their land, house, livestock, jewellery and even children, what is the value of a kidney for the love of money? Especially when it is possible to live perfectly well on its pair?
There is also the whole question of the emotiveness that surrounds death. Whether Indians exhibit their feelings more or less is not the point. In the Indian context, when funeral rites are given such enormous importance, few families would be willing to face the additional trauma of waiting for organ removal in a hospital setting. It is not that the idea of harvesting organs or the establishment of organ banks should not be pursued. The point only is that it will take a long time to convince families overwrought with grief to take decisions and get embroiled with hospitals and operation theatres for one minute longer than necessary. The consent on the driving licence is perhaps a good way of giving freedom to the individual, but also to the police to whisk away deceased accident victims for organ retrieval while preserving the body for the last rites.
Second, it is the fundamental duty of every local Government to build awareness among poor people that they might be compromising their lives by agreeing to donate a kidney. For starters, all construction and building contractors should be enjoined under municipal regulations to display a film about the harmful effects of kidney removal, for all hired labour. The message may yet percolate to a wider group of poor people -- particularly those living in urban areas where nursing hospitals, homes and kidney seekers abound.
Monday, February 18, 2008
"Ensure adherence to model code in future"
Election Commission tells Modi and Sonia they violated the Model Code of Conduct
This is the text of the unanimous decision of the Election Commission of India on the complaints of violations of the Model Code of Conduct in the recent election speeches in Gujarat by Gujarat Chief Minister Narendra Modi, Congress president Sonia Gandhi and Congress general secretary Digvijay Singh.
Shri Narendra Modi,
Chief Minister,
Gujarat,
Gandhi Nagar.
You were called upon to submit your reply on the complaint filed by Ms. Teesta Setalvad, Secretary, Citizens for Justice and Peace, and on news reports for violation of provisions of Model Code of Conduct for guidance of political parties and candidates vide its letter of even Number, dated 6th December 2007. The representation dated 8th December, 2007, submitted by you in reply to its letter referred to above, has been duly considered by the Commission.
The Model Code of Conduct for guidance of political parties and candidates embodies the consensus among the political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during an election campaign. It clearly lays down, inter-alia, that political party and candidates shall not indulge in slander against each other and any criticism based on unverified allegation or distortion shall be avoided and that parties and candidates shall not indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. The Model Code of Conduct is intended to maintain and uphold democratic traditions of ‘issue based’ election campaign. It is, therefore, expected from all the stakeholders to adhere to the provisions of the Model Code of Conduct so that free, fair and peaceful elections are conducted by the Commission as is expected of it, to ensure the vibrant working of the democracy in India. The Supreme Court, in the case of Gadakh Yashwantrao Kankarrao (AIR 1994 SC 678), had the occasion to advise that —
“The duty at the top echelons of leadership at the State and national level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.”
The Commission cannot help expressing its deep anguish over the fact that sagacious advice and high expectations of the Supreme Court seem to have been belied in the instant case. It can hardly be gainsaid that some of the impugned utterances in your speech under reference had the effect of aggravating the existing differences to create mutual hatred or cause tension between different castes and communities and amounted to an appeal to caste or communal feelings. The amount of controversy and national debate which those utterances created all over the country and which even attracted the attention of the Apex Court of the country bear ample testimony to the above fact of aggravating the existing differences between the main communities inhabiting the State of Gujarat. Your attention in this context may be invited to the following observation of the Supreme Court in Ziauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra (AIR 1975 SC 1788):-
“Our Constitution makers certainly intended to set up a Secular Democratic Republic the binding spirit of which is summed up by the objectives set forth in the Preamble to the Constitution. No democratic political and social order, in which the conditions of freedom and their progressive expansion for all make some regulation of all activities imperative, could endure without an agreement on the basic essentials which could unite and hold citizens together despite all the differences of religion, race, caste, community, culture, creed, and language. Our political history made it particularly necessary that these differences, which can generate powerful emotions, depriving people of their powers of rational thought and action, should not be permitted to be exploited lest the imperative conditions for the preservation of democratic freedoms are disturbed.”
The justification provided for the above referred utterances as reaction / counterblast to certain propaganda, as alleged by you, to have been carried out against you can also hardly be accepted. Dealing with a similar contention, the Supreme Court observed in T.K. Gangi Reddy vs. M.C. Anjaneya Reddy and Others [22 ELR 261 (SC)], as follows:-
“We do not find any force in the contention that exhibits P-3 and P-4 were published as a counterblast to exhibit D-62 and, therefore, the said documents are not hit by Section 123(4) of the Act (Representation of the People Act, 1951). Sub-section (4) of Section 123 defining a corrupt practice is not conditioned by any proviso to the effect that it would cease to be a corrupt practice if the statement was made to counteract the rival statement of an opponent.”
The Commission, after careful consideration of all aspects, has come to the conclusion that in the instant case, the Model Code of Conduct has been violated. The Commission, therefore, has conveyed its displeasure and advised you to be more cautious in future so that the salutary provisions of the Model Code of Conduct are adhered to and duly observed in letter and spirit.
Smt. Sonia Gandhi,
President,
Indian National Congress,
24, Akbar Road,
New Delhi.
You were called upon to submit your reply on the complaint filed by Shri Jayanti Lal S. Barot, General Secretary, BJP Gujarat State and on news reports for violation of provisions of the Model Code of Conduct for guidance of political parties and candidates vide its letter of even Number, dated 9th December 2007.
The representation dated 10th December, 2007, submitted by you in reply to its letter referred to above, has been duly considered by the Commission.
The Model Code of Conduct for guidance of political parties and candidates embodies the consensus among the political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during an election campaign. It clearly lays down, inter-alia, that political party and candidates shall not indulge in slander against each other and any criticism based on unverified allegation or distortion shall be avoided and that parties and candidates shall not indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. The Model code of conduct is intended to maintain and uphold democratic traditions of ‘issue based’ election campaign. It is, therefore, expected from all the stakeholders to adhere to the provisions of the model code of conduct so that free, fair and peaceful elections are conducted by the Commission as is expected of it, to ensure the vibrant working of the democracy in India.The Supreme Court, in the case of Gadakh Yashwantrao Kankarrao (AIR 1994 SC 678), had the occasion to advise that —
“The duty at the top echelons of leadership at the State and National level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.”
The sagacious advice and high expectations of the Supreme Court do not seem to have been given due respect in the instant case. Some of the impugned utterances in your speech under reference amount to an attack on the personal character or conduct of the political/administrative functionaries running the present Government of Gujarat. Your attention in this connection is invited to the following observation of the Supreme Court in T.K. Gangi Reddy vs. M.C. Anjaneya Reddy and Others [22 ELR 261 (SC)]:-
“The words ‘personal character or conduct’ are so clear that they do not require further elucidation or definition. The character of a person may ordinarily be equated with his mental or moral nature. Conduct connotes a persons actions or behaviour ... what is more damaging to a person’s character and conduct than to state that he instigated a murder and that he was guilty of violent acts in his political career.”
The Supreme Court also observed in Inder Lal Vs. Lal Singh (AIR 1962 SC 1156) that:
“If, for instance, it is said that the candidate is a cheat or murderer there can be no doubt that the statement is in regard to his private character and conduct … if the economic policy of the party to which the candidate belongs or its political ideology is falsely criticised and in strong words it is suggested that the said policy and ideology would cause the ruin of the country, that clearly would be criticism, though false, against the public character of the candidate and his political party.”
The Commission, after careful consideration of all aspects, has thus come to the conclusion that in the instant case, the Model Code of Conduct has been violated. The Commission, therefore, conveys its displeasure and expects that in future the salutary provisions of the Model Code of Conduct will be adhered to and duly observed in its letter and spirit.
Shri Digvijay Singh,
General Secretary,
Indian National Congress,
24, Akbar Road,
New Delhi.
You were called upon to submit your reply on the complaint filed by Shri Jayanti Lal S. Barot, General Secretary, BJP Gujarat State and on news reports for violation of provisions of the Model Code of Conduct for guidance of political parties and candidates vide its letter of even Number, dated 9th December 2007. The representations dated 11th and 15th December, 2007, submitted by you in reply to its letter referred to above, has been duly considered by the Commission. The Model Code of Conduct for guidance of political parties and candidates embodies the consensus among the political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during an election campaign. It clearly lays down, inter-alia, that political party and candidates shall not indulge in slander against each other and any criticism based on unverified allegation or distortion shall be avoided and that parties and candidates shall not indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. The Model Code of Conduct is intended to maintain and uphold democratic traditions of ‘issue based’ election campaign. It is, therefore, expected from all the stakeholders to adhere to the provisions of the Model Code of Conduct so that free, fair and peaceful elections are conducted by the Commission as is expected of it, to ensure the vibrant working of the democracy in India.
The Supreme Court, in the case of Gadakh Yashwantrao Kankarrao (AIR 1994 SC 678), had the occasion to advise that —
“The duty at the top echelons of leadership at the State and national level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.”
In keeping with the above sagacious advice and high expectations of the Supreme Court, you were expected to avoid all references to certain communities indulging in terrorism which had the effect of aggravating the existing differences or create mutual hatred or cause tension between different castes and communities and amounted to an appeal to caste or communal feelings. The Commission, after careful consideration of all aspects, has advised you to be more cautious in future so that the salutary provisions of Model Code of Conduct are adhered to and duly observed in its letter and spirit.
This is the text of the unanimous decision of the Election Commission of India on the complaints of violations of the Model Code of Conduct in the recent election speeches in Gujarat by Gujarat Chief Minister Narendra Modi, Congress president Sonia Gandhi and Congress general secretary Digvijay Singh.
Shri Narendra Modi,
Chief Minister,
Gujarat,
Gandhi Nagar.
You were called upon to submit your reply on the complaint filed by Ms. Teesta Setalvad, Secretary, Citizens for Justice and Peace, and on news reports for violation of provisions of Model Code of Conduct for guidance of political parties and candidates vide its letter of even Number, dated 6th December 2007. The representation dated 8th December, 2007, submitted by you in reply to its letter referred to above, has been duly considered by the Commission.
The Model Code of Conduct for guidance of political parties and candidates embodies the consensus among the political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during an election campaign. It clearly lays down, inter-alia, that political party and candidates shall not indulge in slander against each other and any criticism based on unverified allegation or distortion shall be avoided and that parties and candidates shall not indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. The Model Code of Conduct is intended to maintain and uphold democratic traditions of ‘issue based’ election campaign. It is, therefore, expected from all the stakeholders to adhere to the provisions of the Model Code of Conduct so that free, fair and peaceful elections are conducted by the Commission as is expected of it, to ensure the vibrant working of the democracy in India. The Supreme Court, in the case of Gadakh Yashwantrao Kankarrao (AIR 1994 SC 678), had the occasion to advise that —
“The duty at the top echelons of leadership at the State and national level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.”
The Commission cannot help expressing its deep anguish over the fact that sagacious advice and high expectations of the Supreme Court seem to have been belied in the instant case. It can hardly be gainsaid that some of the impugned utterances in your speech under reference had the effect of aggravating the existing differences to create mutual hatred or cause tension between different castes and communities and amounted to an appeal to caste or communal feelings. The amount of controversy and national debate which those utterances created all over the country and which even attracted the attention of the Apex Court of the country bear ample testimony to the above fact of aggravating the existing differences between the main communities inhabiting the State of Gujarat. Your attention in this context may be invited to the following observation of the Supreme Court in Ziauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra (AIR 1975 SC 1788):-
“Our Constitution makers certainly intended to set up a Secular Democratic Republic the binding spirit of which is summed up by the objectives set forth in the Preamble to the Constitution. No democratic political and social order, in which the conditions of freedom and their progressive expansion for all make some regulation of all activities imperative, could endure without an agreement on the basic essentials which could unite and hold citizens together despite all the differences of religion, race, caste, community, culture, creed, and language. Our political history made it particularly necessary that these differences, which can generate powerful emotions, depriving people of their powers of rational thought and action, should not be permitted to be exploited lest the imperative conditions for the preservation of democratic freedoms are disturbed.”
The justification provided for the above referred utterances as reaction / counterblast to certain propaganda, as alleged by you, to have been carried out against you can also hardly be accepted. Dealing with a similar contention, the Supreme Court observed in T.K. Gangi Reddy vs. M.C. Anjaneya Reddy and Others [22 ELR 261 (SC)], as follows:-
“We do not find any force in the contention that exhibits P-3 and P-4 were published as a counterblast to exhibit D-62 and, therefore, the said documents are not hit by Section 123(4) of the Act (Representation of the People Act, 1951). Sub-section (4) of Section 123 defining a corrupt practice is not conditioned by any proviso to the effect that it would cease to be a corrupt practice if the statement was made to counteract the rival statement of an opponent.”
The Commission, after careful consideration of all aspects, has come to the conclusion that in the instant case, the Model Code of Conduct has been violated. The Commission, therefore, has conveyed its displeasure and advised you to be more cautious in future so that the salutary provisions of the Model Code of Conduct are adhered to and duly observed in letter and spirit.
Smt. Sonia Gandhi,
President,
Indian National Congress,
24, Akbar Road,
New Delhi.
You were called upon to submit your reply on the complaint filed by Shri Jayanti Lal S. Barot, General Secretary, BJP Gujarat State and on news reports for violation of provisions of the Model Code of Conduct for guidance of political parties and candidates vide its letter of even Number, dated 9th December 2007.
The representation dated 10th December, 2007, submitted by you in reply to its letter referred to above, has been duly considered by the Commission.
The Model Code of Conduct for guidance of political parties and candidates embodies the consensus among the political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during an election campaign. It clearly lays down, inter-alia, that political party and candidates shall not indulge in slander against each other and any criticism based on unverified allegation or distortion shall be avoided and that parties and candidates shall not indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. The Model code of conduct is intended to maintain and uphold democratic traditions of ‘issue based’ election campaign. It is, therefore, expected from all the stakeholders to adhere to the provisions of the model code of conduct so that free, fair and peaceful elections are conducted by the Commission as is expected of it, to ensure the vibrant working of the democracy in India.The Supreme Court, in the case of Gadakh Yashwantrao Kankarrao (AIR 1994 SC 678), had the occasion to advise that —
“The duty at the top echelons of leadership at the State and National level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.”
The sagacious advice and high expectations of the Supreme Court do not seem to have been given due respect in the instant case. Some of the impugned utterances in your speech under reference amount to an attack on the personal character or conduct of the political/administrative functionaries running the present Government of Gujarat. Your attention in this connection is invited to the following observation of the Supreme Court in T.K. Gangi Reddy vs. M.C. Anjaneya Reddy and Others [22 ELR 261 (SC)]:-
“The words ‘personal character or conduct’ are so clear that they do not require further elucidation or definition. The character of a person may ordinarily be equated with his mental or moral nature. Conduct connotes a persons actions or behaviour ... what is more damaging to a person’s character and conduct than to state that he instigated a murder and that he was guilty of violent acts in his political career.”
The Supreme Court also observed in Inder Lal Vs. Lal Singh (AIR 1962 SC 1156) that:
“If, for instance, it is said that the candidate is a cheat or murderer there can be no doubt that the statement is in regard to his private character and conduct … if the economic policy of the party to which the candidate belongs or its political ideology is falsely criticised and in strong words it is suggested that the said policy and ideology would cause the ruin of the country, that clearly would be criticism, though false, against the public character of the candidate and his political party.”
The Commission, after careful consideration of all aspects, has thus come to the conclusion that in the instant case, the Model Code of Conduct has been violated. The Commission, therefore, conveys its displeasure and expects that in future the salutary provisions of the Model Code of Conduct will be adhered to and duly observed in its letter and spirit.
Shri Digvijay Singh,
General Secretary,
Indian National Congress,
24, Akbar Road,
New Delhi.
You were called upon to submit your reply on the complaint filed by Shri Jayanti Lal S. Barot, General Secretary, BJP Gujarat State and on news reports for violation of provisions of the Model Code of Conduct for guidance of political parties and candidates vide its letter of even Number, dated 9th December 2007. The representations dated 11th and 15th December, 2007, submitted by you in reply to its letter referred to above, has been duly considered by the Commission. The Model Code of Conduct for guidance of political parties and candidates embodies the consensus among the political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during an election campaign. It clearly lays down, inter-alia, that political party and candidates shall not indulge in slander against each other and any criticism based on unverified allegation or distortion shall be avoided and that parties and candidates shall not indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. The Model Code of Conduct is intended to maintain and uphold democratic traditions of ‘issue based’ election campaign. It is, therefore, expected from all the stakeholders to adhere to the provisions of the Model Code of Conduct so that free, fair and peaceful elections are conducted by the Commission as is expected of it, to ensure the vibrant working of the democracy in India.
The Supreme Court, in the case of Gadakh Yashwantrao Kankarrao (AIR 1994 SC 678), had the occasion to advise that —
“The duty at the top echelons of leadership at the State and national level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.”
In keeping with the above sagacious advice and high expectations of the Supreme Court, you were expected to avoid all references to certain communities indulging in terrorism which had the effect of aggravating the existing differences or create mutual hatred or cause tension between different castes and communities and amounted to an appeal to caste or communal feelings. The Commission, after careful consideration of all aspects, has advised you to be more cautious in future so that the salutary provisions of Model Code of Conduct are adhered to and duly observed in its letter and spirit.
Customary payments, gifts not dowry: SC
NEW DELHI: The Supreme Court has ruled that demand for money and presents from parents of a married girl at the time of birth of her child or for other ceremonies, as is prevalent in society, may be deprecable but cannot be categorised as dowry to make it a punishable offence.
This means, if a daughter-in-law is being harassed for customary gifts by parents-in-law, then they could be booked under ordinary penal provisions but not under the tough anti-dowry laws providing stringent punishments.
Acquitting the parents-in-law of a woman who had accused them of harassing her for dowry, a Bench comprising Justices Arijit Pasayat and S Sathasivam took help of a 2001 judgment of SC to say that not all demands from the parents-in-law could be categorised as 'dowry' under the Dowry Prohibition Act. It said though the Act covers payment of money or articles during, before or after marriage by the girl's parent to her in-laws, the cash and presents given had to have a link with the marriage to become objectionable in law.
"Other payments which are customary payments, for example given at the time of birth of a child or other ceremonies as are prevalent in different societies, are not covered by the expression 'dowry'," said Justice Pasayat, writing the judgment for the Bench.
A Haryana trial court had continued the dowry harassment charges against the woman's husband while acquitting the parents-in-law, the married sister and brother of the husband. Though the high court allowed quashing of charges against the sister and brother, it said the parents-in-law were liable to be proceeded against.
The apex court said that when the trial court had held that an attempt had been made by the woman to rope in as many relatives of her husband as possible, the HC should have given some reasons while reversing a well-reasoned order.
It said judicial discipline demanded the HCs to give clear reasons when reversing a trial court order backed by facts. "Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutible face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudicating the validity of the decision," the Bench said.
dhananjay.mahapatra@timesgroup.com
This means, if a daughter-in-law is being harassed for customary gifts by parents-in-law, then they could be booked under ordinary penal provisions but not under the tough anti-dowry laws providing stringent punishments.
Acquitting the parents-in-law of a woman who had accused them of harassing her for dowry, a Bench comprising Justices Arijit Pasayat and S Sathasivam took help of a 2001 judgment of SC to say that not all demands from the parents-in-law could be categorised as 'dowry' under the Dowry Prohibition Act. It said though the Act covers payment of money or articles during, before or after marriage by the girl's parent to her in-laws, the cash and presents given had to have a link with the marriage to become objectionable in law.
"Other payments which are customary payments, for example given at the time of birth of a child or other ceremonies as are prevalent in different societies, are not covered by the expression 'dowry'," said Justice Pasayat, writing the judgment for the Bench.
A Haryana trial court had continued the dowry harassment charges against the woman's husband while acquitting the parents-in-law, the married sister and brother of the husband. Though the high court allowed quashing of charges against the sister and brother, it said the parents-in-law were liable to be proceeded against.
The apex court said that when the trial court had held that an attempt had been made by the woman to rope in as many relatives of her husband as possible, the HC should have given some reasons while reversing a well-reasoned order.
It said judicial discipline demanded the HCs to give clear reasons when reversing a trial court order backed by facts. "Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutible face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudicating the validity of the decision," the Bench said.
dhananjay.mahapatra@timesgroup.com
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