By Anil Divan ,The Hindu April 2,2007
The great contribution of judicial activism in India has been to provide a safety valve and a hope that justice is not beyond reach.
LIVELY CRITICISM of judicial activism encroaching on the powers of the legislature and the executive has been voiced by many including Lok Sabha Speaker Somnath Chatterjee. Such controversies are the lifeblood of democracy and must be welcomed. On March 12, 2007, marshals were summoned in the Lok Sabha as Communist Party of India (Marxist) members stormed the well, menacingly advancing towards Shipping Minister T.R. Baalu. Dravida Munnetra Kazhagam members formed a human wall to protect him. On March 19, 2007, another scuffle took place in the Rajya Sabha when Bharatiya Janata Party member S.S. Ahluwalia and other Opposition members rushed threateningly towards Finance Minister P. Chidambaram who was protected by a cordon of Congressmen.
The Indian citizen's perception of the political class is overwhelmingly coloured by the above images. It is in this context that judicial activism has flourished in India and has acquired enormous legitimacy with the Indian public. Some glimpses from the past and a peep into the future may be rewarding.
In 1608, England was ruled by the Stuart King James I who claimed absolute power. On November 13, 1608, James entered the royal courts and claimed that he could take any case he chose, remove it from the courts, and decide it in his royal person. Chief Justice Coke answered that he could not do so but the case ought to be determined and adjudged in a court of justice according to the law and custom of England. The King was greatly offended and replied: "This means that I shall be under law which is treason to affirm." Coke replied: "Bracton says that the King should not be under man but should be under God and law." At that time the judges were removable by the King and had no security of tenure. Chief Justice Coke's reply was an affirmation of the judicial power while upholding the rule of law against arbitrary decisions of the sovereign. This was judicial activism at its finest.
In 1801, Chief Justice John Marshall highlighted and reaffirmed the power of the American Supreme Court to invalidate Congressional statutes in the celebrated case of Marbury v. Madison. John Marshall was Secretary of State in the administration of President John Adams who in the last days of his Presidency appointed as judges and magistrates more than 50 people belonging to his party. Meanwhile, Marshall was appointed Chief Justice and overlooked delivering some commissions. The incoming President Thomas Jefferson ordered his Secretary of State James Madison not to deliver these commissions. Marbury, an appointee, moved the Supreme Court for a direction against Secretary of State Madison praying that the commission be delivered to him. Chief Justice Marshall knew that if a direction was given it was unlikely to be obeyed by President Jefferson. By an act of judicial statesmanship Marshall ruled that Section 13 of the Judiciary Act under which Marbury had petitioned the court was unconstitutional and invalid and therefore the court had no original jurisdiction to grant relief. He avoided a direct conflict with the administration while highlighting and reaffirming the judicial review power to invalidate an Act of Congress.
Chief Justice Earl Warren of the U.S. was one of the great activist judges who has profoundly influenced the Indian Supreme Court. By his decisions he legitimised affirmative action by the courts and removed racial discrimination in schools by desegregation, reapportioned obsolete electoral districts, and enhanced the rights of poor accused and defendants. Warren and the judges supporting him came in conflict with their colleagues who championed judicial restraint. Bernard Schwartz recounts a public display of acrimony between Warren and Frankfurter, the latter a champion of judicial restraint. In Stewart v United States, a bare majority reversed a murder conviction because of improper questioning by the prosecution. After the majority opinion was read, Frankfurter in open court characterised it as "an indefensible example of judicial nit-picking" and "excessively finicky appellate review." Chief Justice Warren, visibly angered, said: "As I understand it the purpose of reporting an opinion in the courtroom is to inform the public and is not for the purpose of degrading this Court." This exchange was front-page copy for the national press.
President Eisenhower a conservative Republican, was distressed by the liberal views of his appointee Chief Justice Warren. When Eisenhower was asked what his biggest mistake was, he angrily replied "the appointment of ... Earl Warren."
High-water mark
What was the one case that was the high-water mark of judicial activism in India? No doubt it was the judgment of the majority in the Keshavananda Bharati case (the fundamental rights case). For the first time a court held that a constitutional amendment duly passed by the legislature was invalid as damaging or destroying its basic structure. This was a gigantic innovative judicial leap unknown to any legal system. The masterstroke was that the judgment could not be annulled by any amendment to be made by Parliament because the basic structure doctrine was vague and amorphous. The judgment was severely and passionately criticised by the executive and many eminent lawyers. The immediate response of the executive was the supercession of three senior-most judges (Justices Shelat, Hegde, and Grover) while the fourth Judge Justice A.N. Ray who had decided all major cases in favour of the Government was appointed Chief Justice. However, the critics were soon silenced. The excesses of the Internal Emergency of 1975 completely legitimised this judgment and one of its severest critics the great jurist H.M. Seervai changed his views.
Judicial activism earned a human face in India by liberalising access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justices V.R. Krishna Iyer and P.N. Bhagwati. The Supreme Court gained in stature and legitimacy. Later, when the independence of the judiciary was threatened by punitive transfers, the court entered the arena of judicial appointments and transfers. With the increasing criminalisation and misgovernance and the complete apathy of the executive, the court (under the leadership of Chief Justice Verma and Justices Bharucha and Sen) took up the case of terrorist funding linked to political corruption through the `hawala' route in the Vineet Narain Case (Jain hawala Case). A cover-up by the Central Bureau of Investigation to protect its political masters was exposed and the court monitored the investigation upholding the principle "Be you ever so high the law is above you."
During the hearing there were reports that Prime Minister P.V. Narasimha Rao was interfering with the investigation and the court passed an interim order on March 1, 1996. It directed "that the CBI would not take any instructions from, report to or furnish any particulars thereof to any authority personally interested in or likely to be affected by the outcome of the investigation into any accusation. This direction applied even in relation to any authority which exercises administrative control over the CBI by virtue of the office he holds, without any exception." In substance Prime Minister Rao was forbidden from exercising control over the CBI in relation to that case. It was a bold and courageous order and carried judicial activism to hitherto unscaled heights. The fallout of the case was resignations following initiation of prosecutions against high profile political personalities including three Cabinet Ministers, two Governors, and the Leader of the Opposition. In the next general election the ruling Congress lost power.
The courts on several occasions have issued directions in public interest litigation (PIL) covering a wide spectrum such as road safety, pollution, illegal structures in VIP zones, monkey menace, dog menace, unpaid dues by former and serving legislators, nursery admissions, and admissions in institutions of higher learning. There is no doubt that sometimes these orders are triggered by righteous indignation and emotional responses.
The common citizens have discovered that the administration has become so apathetic and non-performing and corruption and criminality so widespread that they have no recourse except to move the courts through PIL, enlarging the field for judicial intervention. If a citizen's child is attacked by a stray dog or cattle roam the streets or hospitals suffer from monkey menace and nothing is done, should not the court intervene?
The great contribution of judicial activism in India has been to provide a safety valve in a democracy and a hope that justice is not beyond reach. Judicial activism has come to stay in India and will prosper as long as the judiciary is respected and is not undermined by negative perceptions, which have overtaken the executive and the legislature. There is concern among the public about lack of transparency in judicial appointments and a sense of increasing unease because of a lack of a credible mechanism to deal with serious complaints against the higher judiciary.
The plants slowly nurtured by judicial craftsmanship have grown into sturdy trees and have blossomed with colourful and fragrant flowers. Judicial activism has added much needed oxygen to a gigantic democratic experiment in India by the alchemy of judico-photosynthesis.
(The writer is a Senior Advocate, Supreme Court .)
Tuesday, April 03, 2007
Wednesday, February 28, 2007
Minister: Juvenile courts to be set up in all districts
Minister: Juvenile courts to be set up in all districtsHT CorrespondentJabalpur, February 25, 2007
WOMAN AND Child Development and Social Justice Minister Kusum Mahdele said on Saturday that the government would soon open juvenile courts in each district for speedy disposal of cases related to children. She said the number of juvenile courts in the State is insufficient at present and more courts are needed for disposal of cases.
The minister said that Bal Bhawan, akin to Bhopal, would be opened in Jabalpur in April. She said it is planned to open Bal Bhawan at the divisional headquarters, where children would receive training in sports, music, arts and would also be taught science and other subjects.Mahdele told the media persons that the beneficiaries under the social security and old age pension schemes would get the amount by the fifth of every month. He said her department had issued instructions in this regard to the authorities.
She disclosed that the government was contemplating a plan to reserve 50 per cent seats of supervisor cadre in Anganwadi for women.
To a query about promoting Anganwadi workers on the post of supervisor, she said the government would fill up 50 per cent posts of supervisor through Anganwadi workers for which they will have to qualify the test conducted by the Professional Examination Board.
Mahdele announced that 75 per cent amount for construction of hostel for working women and the students in the campus of Government Mankunwar Bai College here would be provided by the government.
WOMAN AND Child Development and Social Justice Minister Kusum Mahdele said on Saturday that the government would soon open juvenile courts in each district for speedy disposal of cases related to children. She said the number of juvenile courts in the State is insufficient at present and more courts are needed for disposal of cases.
The minister said that Bal Bhawan, akin to Bhopal, would be opened in Jabalpur in April. She said it is planned to open Bal Bhawan at the divisional headquarters, where children would receive training in sports, music, arts and would also be taught science and other subjects.Mahdele told the media persons that the beneficiaries under the social security and old age pension schemes would get the amount by the fifth of every month. He said her department had issued instructions in this regard to the authorities.
She disclosed that the government was contemplating a plan to reserve 50 per cent seats of supervisor cadre in Anganwadi for women.
To a query about promoting Anganwadi workers on the post of supervisor, she said the government would fill up 50 per cent posts of supervisor through Anganwadi workers for which they will have to qualify the test conducted by the Professional Examination Board.
Mahdele announced that 75 per cent amount for construction of hostel for working women and the students in the campus of Government Mankunwar Bai College here would be provided by the government.
Monday, February 05, 2007
India’s judiciary seeks to burnish its reputation with some belated guilty verdicts
By Parwini Zora and Kranti Kumara – World Socialist Web Site
India’s State High Courts have recently delivered guilty verdicts in a number of high profile cases arising from brazen violent crimes committed over a decade ago by wealthy and politically well-connected individuals. Those convicted include a cabinet minister in India’s Congress Party-led United Progressive Alliance (UPA) government, a sitting Bharatiya Janata Party (BJP) MP, the son of a senior police commissioner, and the son of a wealthy Congress Party leader.
The guilty verdicts have elicited a torrent of favorable media commentary, with the press congratulating itself for stoking and maintaining public interest in these cases and lauding the courts for having the integrity and courage to convict the rich and powerful. Kushwant Singh, one of the country’s best known media commentators, hailed the recent convictions for “beginning . . . the process of restoration of faith in our judicial system.”
“Convictions of Shibu Soren, Navjot Sidhu, Santosh Singh, Manu Sharma, Sharda Jain, Sanjay Dutt and others showed that no matter how important or celebrated a person, he or she is not above the law,” Singh wrote. “We have much to thank Justice R.S. Sodhi for. Credit is also due to our media; to TV channels for reporting the public outrage at the miscarriage of justice and the press for its sustained pressure to bring criminals to book. I hope the process will continue.”
That such comments can be made attests to how widespread is the public perception that the justice system is subject to financial and political manipulation and shot through with class bias. They also indicate that India’s elite—which has increasingly used the courts to suppress opposition to its neo-liberal socio-economic reform program and to strengthen proprietary and managerial rights—fears that the ability of some its own to literally get away with murder is undermining public faith in the judiciary and thereby endangering bourgeois rule.
A handful of exemplary convictions
In the first of a series of such rulings, the Delhi High Court on October 30, 2006 reversed an acquittal by a lower court and sentenced Santosh Kumar Singh, son of a senior police commissioner, to death for the brutal 1996 rape and murder of a 22-year old female student, Priyadarshini Mattoo.
On Dec. 5, 2006 the same court sentenced Shibu Soren, the Union Coal Minister and leader of the tribal-based political party Jharkhand Mukti Morcha (JMM) and four accomplices to life imprisonment for kidnapping and murdering Soren’s associate Shashinath Jha in 1994. Soren and Jha had had a falling-out over the divvying up of a massive bribe of 50 million rupees ($1.67 million US at the 1994 exchange rate) that had been given to Soren and his cronies in the JMM by the then-ruling Congress Party for propping up the government in parliament a year earlier.
Under India’s penal code Shibu Soren will have to serve a minimum of 14 years in prison before becoming eligible for release.
In another case, the Punjab and Haryana High Court on December 24, 2006 overturned a not-guilty verdict of a lower court and pronounced Navjot Singh Sidhu, a member of the Lok Sabha belonging to the Hindu-supremacist BJP, guilty of “culpable homicide” for beating Gurnam Singh to death in 1988 in a reputed case of road-rage. Sidhu was given a 3-year prison term and fined 100,000 rupees ($2,200 US). A particularly uncouth and coarse person, Sidhu turned to politics after retiring from cricket. He also hosts a television program.
Even the paltry sentence on Sidhu has been suspended, allowing him to appeal his sentence in the Indian Supreme Court. Neither Sidhu nor Soren are losing any sleep over their sentences. While Shibu Soren did step down as a Union Minister, he still retains his Lok Sabha seat. Soren can prevent his disqualification from parliament by filing an appeal within 3 months. If Soren is unable to obtain bail pending his appeal, the Speaker of the Lok Sabha may have to make arrangements for this convicted murderer to perform his parliamentary duties from jail.
According to news reports, Soren is being treated as a VIP in prison, with the jail authorities attending to his every demand. Navjot Sidhu, on the other hand, has resigned from the Lok Sabha, but just a couple of weeks after his sentencing he was back in his role as a television host and is currently acting in a 6-part reality TV series. More importantly, the BJP has named Sidhu its candidate for the Lok Sabha by-election necessitated by his own resignation.
The convictions of Soren and Sidhu are not surprising given that the Lok Sabha has become the domicile for scores of venal thug-politicians, who brazenly traffic in political influence and rally public support by making crude populist appeals to caste, religious-communal and ethnic identities. According to one study by a non-governmental organization, over 90 members of the 543-seat Lok Sabha, including 10 members of ministerial rank in the current UPA government, currently face serious criminal charges, including rape, extortion and murder.
In another prominent case that had caused widespread public outrage, the Delhi High Court on December 20, 2006 overruled a previous lower court ruling and sentenced Manu Sharma—the son of a prominent and wealthy Congress Party politician, Vinod Sharma—to life imprisonment for murdering the model Jessica Lal in 1999. Lal, who was working as a bar hostess at a private party of Delhi socialites, was murdered by Manu Sharma for refusing him further drinks after the bar had closed. This case triggered a public uproar when Manu Sharma was acquitted in February 2006 because, according to dozens of witnesses, he had brazenly shot Jessica Lal in the head at point-blank range.
Despite the prosecution’s call for Sharma to be sentenced to death, the Delhi High Court ruled that “justice would be satisfied if we award the sentence of imprisonment for life to Siddharth Vashishtha alias Manu Sharma.”
According to press reports Vinod Sharma is seeking the services of prominent attorneys to file an appeal with the Indian Supreme Court. As a matter of principle, the World Socialist Web Site opposes the death penalty, but it is nevertheless instructive to contrast the court’s magnanimity towards Manu Sharma with its baying for the blood of Mohammed Afzal, a minor accomplice—if even that—in the 2001 attack on the Indian Parliament. (See “India: Stop the state murder of Mohammed Afzal”.)
Elite concerns over a loss of legitimacy India’s judicial system has long been notorious for the unequal treatment it accords the poor and the well-to-do—for the corruption of the police and courts, the official indifference to crimes committed against poor and lower-caste people (as for example the recent spate of disappearances in Noida) and the hostility of the police to the rights of the accused.
The flagrant inequities in the judicial system are exemplified by the fact that poor people are often kept in jail for months, and frequently years, awaiting trial for minor offenses, while the rich and powerful are able to obtain “anticipatory bail”—a ruling granting them bail should they be charged—thus allowing them to avoid the indignity of being arrested and having to wait in jail for a bail hearing to secure their release. (See: “Fifty-four years in jail without trial: the plight of prison inmates in India”.)
Aware that the judicial system is little respected, if not held in outright disrepute, by much of the population, and also concerned about allaying investors fears that they will be hard pressed to enforce their contracts due to the chronic backlog in the adjudication of court cases, prominent figures in the government and judiciary have called repeatedly in recent years for action to “clean-up” and otherwise improve India’s legal system.
In a speech in London in June 12, 2003, the attorney general of India at the time delivered a damning indictment of India’s criminal justice system: “The criminal justice system is on the verge of collapse. Because justice is not dispensed speedily, people have come to believe that there is no such thing as justice in courts.
“This perception has caused many a potential litigant who has been wronged to settle out of court on terms which are unfair to him or to secure justice by taking the law into his own hands or by recourse to a parallel mafia-dominated system of ‘justice’ that has sprung up in metropolitan centers such as Mumbai.
“The gravity of this development cannot be underestimated. Justice delayed will not only be justice denied, it will be the Rule of Law destroyed.”
The calls from within the elite for measures against judicial corruption and inefficiency, for an effort to revive public confidence in India’s legal system, must also be see within the context of the pivotal role that the courts are playing in the bourgeoisie’s drive to make India a cheap-labor producer for the world capitalist market.
India’s courts, and especially its apex court, the Supreme Court, have moved in recent years to criminalize working-class and popular dissent with a spate of anti-democratic rulings.
To name but two of the most significant, in the summer of 2003 India’s Supreme Court sided with the Tamilnadu state government when it dismissed over 200,000 public employees who had gone on strike demanding better pay and benefits. The court found that public sector workers have no inherent right to strike and even suggested that the state would be within its constitutional limits to outlaw strikes by all workers. In an unprecedented February 2006 ruling, the Supreme Court banned all public discussion on whether the toxic-laden, de-commissioned French Aircraft carrier “Le Clemenceau” should be permitted to be dismantled at an Indian ship-breaking yard.
Under conditions where India’s government has often been forced to postpone enactment of neo-liberal reforms, especially in regards to labor laws, due to popular pressure, the courts through various rulings have moved to expand the powers and prerogatives of employers to discipline and dismiss workers. Recently, for example, the Supreme Court ruled that apprentices or trainees don’t have any rights during their training period, even if that period is prolonged, and can be fired without penalty even if they routinely perform work that a regular employee performs.
The recent exemplary rulings in a handful of high-profile criminal cases and the push from within the elite for reform of India’s judiciary will not—the claims of the press notwithstanding—make India’s legal system more just and democratic. Rather they are aimed at bolstering the legitimacy and efficiency of the legal system so as to make it a more effective instrument of class oppression.
Indian Prime Minister Manmohan Singh last year tied his call for the speedier dispensing of justice with the need to bring the courts more in line with his and previous governments’ pro-big business “economic reforms.”
One further point should be made: while the press has been lauding the courts for the recent convictions of a number of brazen upper-class criminals, those responsible for far greater and more politically-significant crimes—crimes which led to the deaths of thousands and in which leading politicians and police authorities were culpable—the 1984 anti-Sikh riots in Delhi, the 1992 razing of the Babri Masjid mosque in Ayodhya and the 2002 anti-Muslim pogrom in Gujarat, remain free. And about this gross injustice the corporate media remains almost completely silent.
- World Socialist Web Site -
http://www.asiantribune.com/index.php?q=node/4402
India’s State High Courts have recently delivered guilty verdicts in a number of high profile cases arising from brazen violent crimes committed over a decade ago by wealthy and politically well-connected individuals. Those convicted include a cabinet minister in India’s Congress Party-led United Progressive Alliance (UPA) government, a sitting Bharatiya Janata Party (BJP) MP, the son of a senior police commissioner, and the son of a wealthy Congress Party leader.
The guilty verdicts have elicited a torrent of favorable media commentary, with the press congratulating itself for stoking and maintaining public interest in these cases and lauding the courts for having the integrity and courage to convict the rich and powerful. Kushwant Singh, one of the country’s best known media commentators, hailed the recent convictions for “beginning . . . the process of restoration of faith in our judicial system.”
“Convictions of Shibu Soren, Navjot Sidhu, Santosh Singh, Manu Sharma, Sharda Jain, Sanjay Dutt and others showed that no matter how important or celebrated a person, he or she is not above the law,” Singh wrote. “We have much to thank Justice R.S. Sodhi for. Credit is also due to our media; to TV channels for reporting the public outrage at the miscarriage of justice and the press for its sustained pressure to bring criminals to book. I hope the process will continue.”
That such comments can be made attests to how widespread is the public perception that the justice system is subject to financial and political manipulation and shot through with class bias. They also indicate that India’s elite—which has increasingly used the courts to suppress opposition to its neo-liberal socio-economic reform program and to strengthen proprietary and managerial rights—fears that the ability of some its own to literally get away with murder is undermining public faith in the judiciary and thereby endangering bourgeois rule.
A handful of exemplary convictions
In the first of a series of such rulings, the Delhi High Court on October 30, 2006 reversed an acquittal by a lower court and sentenced Santosh Kumar Singh, son of a senior police commissioner, to death for the brutal 1996 rape and murder of a 22-year old female student, Priyadarshini Mattoo.
On Dec. 5, 2006 the same court sentenced Shibu Soren, the Union Coal Minister and leader of the tribal-based political party Jharkhand Mukti Morcha (JMM) and four accomplices to life imprisonment for kidnapping and murdering Soren’s associate Shashinath Jha in 1994. Soren and Jha had had a falling-out over the divvying up of a massive bribe of 50 million rupees ($1.67 million US at the 1994 exchange rate) that had been given to Soren and his cronies in the JMM by the then-ruling Congress Party for propping up the government in parliament a year earlier.
Under India’s penal code Shibu Soren will have to serve a minimum of 14 years in prison before becoming eligible for release.
In another case, the Punjab and Haryana High Court on December 24, 2006 overturned a not-guilty verdict of a lower court and pronounced Navjot Singh Sidhu, a member of the Lok Sabha belonging to the Hindu-supremacist BJP, guilty of “culpable homicide” for beating Gurnam Singh to death in 1988 in a reputed case of road-rage. Sidhu was given a 3-year prison term and fined 100,000 rupees ($2,200 US). A particularly uncouth and coarse person, Sidhu turned to politics after retiring from cricket. He also hosts a television program.
Even the paltry sentence on Sidhu has been suspended, allowing him to appeal his sentence in the Indian Supreme Court. Neither Sidhu nor Soren are losing any sleep over their sentences. While Shibu Soren did step down as a Union Minister, he still retains his Lok Sabha seat. Soren can prevent his disqualification from parliament by filing an appeal within 3 months. If Soren is unable to obtain bail pending his appeal, the Speaker of the Lok Sabha may have to make arrangements for this convicted murderer to perform his parliamentary duties from jail.
According to news reports, Soren is being treated as a VIP in prison, with the jail authorities attending to his every demand. Navjot Sidhu, on the other hand, has resigned from the Lok Sabha, but just a couple of weeks after his sentencing he was back in his role as a television host and is currently acting in a 6-part reality TV series. More importantly, the BJP has named Sidhu its candidate for the Lok Sabha by-election necessitated by his own resignation.
The convictions of Soren and Sidhu are not surprising given that the Lok Sabha has become the domicile for scores of venal thug-politicians, who brazenly traffic in political influence and rally public support by making crude populist appeals to caste, religious-communal and ethnic identities. According to one study by a non-governmental organization, over 90 members of the 543-seat Lok Sabha, including 10 members of ministerial rank in the current UPA government, currently face serious criminal charges, including rape, extortion and murder.
In another prominent case that had caused widespread public outrage, the Delhi High Court on December 20, 2006 overruled a previous lower court ruling and sentenced Manu Sharma—the son of a prominent and wealthy Congress Party politician, Vinod Sharma—to life imprisonment for murdering the model Jessica Lal in 1999. Lal, who was working as a bar hostess at a private party of Delhi socialites, was murdered by Manu Sharma for refusing him further drinks after the bar had closed. This case triggered a public uproar when Manu Sharma was acquitted in February 2006 because, according to dozens of witnesses, he had brazenly shot Jessica Lal in the head at point-blank range.
Despite the prosecution’s call for Sharma to be sentenced to death, the Delhi High Court ruled that “justice would be satisfied if we award the sentence of imprisonment for life to Siddharth Vashishtha alias Manu Sharma.”
According to press reports Vinod Sharma is seeking the services of prominent attorneys to file an appeal with the Indian Supreme Court. As a matter of principle, the World Socialist Web Site opposes the death penalty, but it is nevertheless instructive to contrast the court’s magnanimity towards Manu Sharma with its baying for the blood of Mohammed Afzal, a minor accomplice—if even that—in the 2001 attack on the Indian Parliament. (See “India: Stop the state murder of Mohammed Afzal”.)
Elite concerns over a loss of legitimacy India’s judicial system has long been notorious for the unequal treatment it accords the poor and the well-to-do—for the corruption of the police and courts, the official indifference to crimes committed against poor and lower-caste people (as for example the recent spate of disappearances in Noida) and the hostility of the police to the rights of the accused.
The flagrant inequities in the judicial system are exemplified by the fact that poor people are often kept in jail for months, and frequently years, awaiting trial for minor offenses, while the rich and powerful are able to obtain “anticipatory bail”—a ruling granting them bail should they be charged—thus allowing them to avoid the indignity of being arrested and having to wait in jail for a bail hearing to secure their release. (See: “Fifty-four years in jail without trial: the plight of prison inmates in India”.)
Aware that the judicial system is little respected, if not held in outright disrepute, by much of the population, and also concerned about allaying investors fears that they will be hard pressed to enforce their contracts due to the chronic backlog in the adjudication of court cases, prominent figures in the government and judiciary have called repeatedly in recent years for action to “clean-up” and otherwise improve India’s legal system.
In a speech in London in June 12, 2003, the attorney general of India at the time delivered a damning indictment of India’s criminal justice system: “The criminal justice system is on the verge of collapse. Because justice is not dispensed speedily, people have come to believe that there is no such thing as justice in courts.
“This perception has caused many a potential litigant who has been wronged to settle out of court on terms which are unfair to him or to secure justice by taking the law into his own hands or by recourse to a parallel mafia-dominated system of ‘justice’ that has sprung up in metropolitan centers such as Mumbai.
“The gravity of this development cannot be underestimated. Justice delayed will not only be justice denied, it will be the Rule of Law destroyed.”
The calls from within the elite for measures against judicial corruption and inefficiency, for an effort to revive public confidence in India’s legal system, must also be see within the context of the pivotal role that the courts are playing in the bourgeoisie’s drive to make India a cheap-labor producer for the world capitalist market.
India’s courts, and especially its apex court, the Supreme Court, have moved in recent years to criminalize working-class and popular dissent with a spate of anti-democratic rulings.
To name but two of the most significant, in the summer of 2003 India’s Supreme Court sided with the Tamilnadu state government when it dismissed over 200,000 public employees who had gone on strike demanding better pay and benefits. The court found that public sector workers have no inherent right to strike and even suggested that the state would be within its constitutional limits to outlaw strikes by all workers. In an unprecedented February 2006 ruling, the Supreme Court banned all public discussion on whether the toxic-laden, de-commissioned French Aircraft carrier “Le Clemenceau” should be permitted to be dismantled at an Indian ship-breaking yard.
Under conditions where India’s government has often been forced to postpone enactment of neo-liberal reforms, especially in regards to labor laws, due to popular pressure, the courts through various rulings have moved to expand the powers and prerogatives of employers to discipline and dismiss workers. Recently, for example, the Supreme Court ruled that apprentices or trainees don’t have any rights during their training period, even if that period is prolonged, and can be fired without penalty even if they routinely perform work that a regular employee performs.
The recent exemplary rulings in a handful of high-profile criminal cases and the push from within the elite for reform of India’s judiciary will not—the claims of the press notwithstanding—make India’s legal system more just and democratic. Rather they are aimed at bolstering the legitimacy and efficiency of the legal system so as to make it a more effective instrument of class oppression.
Indian Prime Minister Manmohan Singh last year tied his call for the speedier dispensing of justice with the need to bring the courts more in line with his and previous governments’ pro-big business “economic reforms.”
One further point should be made: while the press has been lauding the courts for the recent convictions of a number of brazen upper-class criminals, those responsible for far greater and more politically-significant crimes—crimes which led to the deaths of thousands and in which leading politicians and police authorities were culpable—the 1984 anti-Sikh riots in Delhi, the 1992 razing of the Babri Masjid mosque in Ayodhya and the 2002 anti-Muslim pogrom in Gujarat, remain free. And about this gross injustice the corporate media remains almost completely silent.
- World Socialist Web Site -
http://www.asiantribune.com/index.php?q=node/4402
India Sees Thousands Of Children Missing Thanks To Neglect In Police
February 05, 2007 21:44 PM
NEW DELHI, Feb 5 (Bernama) -- When India's senior police officers check the crime charts, they will frown upon increase in thefts, murders and even chain snatching incidents but seldom upon the number of missing persons, Xinhua reported Monday.It was no wonder that the public and media were so shocked when the serial killing of about 40 children was revealed early January in Noida, a satellite town of Indian capital New Delhi known for its large middle-class population.According to the police investigation, two prime suspects, a businessman and his servant, seduced the children from an urban village near their house, sexually abused and killed them. They dismembered the bodies and buried them in a dried drainage behind the house.People were asking how come the local police had been not aware of the crime when worried parents in the village kept filing complaints about their missing children in the past two years.The case seems lead to the fact that missing cases are so low on policing priority.A National Human Rights Commission report said that 45,000 children go missing every year but the Women and Child Development Ministry was quoted as saying it could be thrice as much.Some non-governmental organizations (NGOs) and social workers said that official estimates are based only on police complaints and the actual numbers may be close to 1 million.In Delhi there are 21,561 people reported missing including nearly 16,000 children. Provided that the city has other 50,000 homeless it is a frightening scenario.But India has no official website or data base for the missing people. The only public source of information seems to be Doordarshan, India's public TV channel, or personally placed ads in media.There is very little emphasis on locating missing children by the police or even the society, said Kiran Bedi, director-general of the Delhi police in charge of training.More attention will be paid on finding a stolen car than finding a human being because the former involves a pressure group and the insurance company, said Sagar Hudda, Joint Commissioner of Delhi Police.And missing children from poor and powerless families will face the most neglect from the police.The victims in the serial killing in Noida all came from poor families of migrant workers.In the same city it took the police only five days to save the three-year-old son of the chief executive of Adobe India who was kidnapped for ransom in November last year.The police are most reluctant to register First Information Reports (FIR) for kidnapping till a ransom demand is made. But this rarely happens in the case of poor children who may have been lifted for begging or prostitution or other violation like what happened in the Noida killing.India has adopted several laws on protection of children including the freshly passed Child Marriage Act, Domestic Violence Act and child labour protection Act but so far no law on missing children.To cope with the problem, the Women and Child Development Ministry is considering founding a national commission for children which will exclusively cater to complaints related to children with similar legal power with the National Commission for Women
http://www.bernama.com.my/bernama/v3/news.php?id=245230
NEW DELHI, Feb 5 (Bernama) -- When India's senior police officers check the crime charts, they will frown upon increase in thefts, murders and even chain snatching incidents but seldom upon the number of missing persons, Xinhua reported Monday.It was no wonder that the public and media were so shocked when the serial killing of about 40 children was revealed early January in Noida, a satellite town of Indian capital New Delhi known for its large middle-class population.According to the police investigation, two prime suspects, a businessman and his servant, seduced the children from an urban village near their house, sexually abused and killed them. They dismembered the bodies and buried them in a dried drainage behind the house.People were asking how come the local police had been not aware of the crime when worried parents in the village kept filing complaints about their missing children in the past two years.The case seems lead to the fact that missing cases are so low on policing priority.A National Human Rights Commission report said that 45,000 children go missing every year but the Women and Child Development Ministry was quoted as saying it could be thrice as much.Some non-governmental organizations (NGOs) and social workers said that official estimates are based only on police complaints and the actual numbers may be close to 1 million.In Delhi there are 21,561 people reported missing including nearly 16,000 children. Provided that the city has other 50,000 homeless it is a frightening scenario.But India has no official website or data base for the missing people. The only public source of information seems to be Doordarshan, India's public TV channel, or personally placed ads in media.There is very little emphasis on locating missing children by the police or even the society, said Kiran Bedi, director-general of the Delhi police in charge of training.More attention will be paid on finding a stolen car than finding a human being because the former involves a pressure group and the insurance company, said Sagar Hudda, Joint Commissioner of Delhi Police.And missing children from poor and powerless families will face the most neglect from the police.The victims in the serial killing in Noida all came from poor families of migrant workers.In the same city it took the police only five days to save the three-year-old son of the chief executive of Adobe India who was kidnapped for ransom in November last year.The police are most reluctant to register First Information Reports (FIR) for kidnapping till a ransom demand is made. But this rarely happens in the case of poor children who may have been lifted for begging or prostitution or other violation like what happened in the Noida killing.India has adopted several laws on protection of children including the freshly passed Child Marriage Act, Domestic Violence Act and child labour protection Act but so far no law on missing children.To cope with the problem, the Women and Child Development Ministry is considering founding a national commission for children which will exclusively cater to complaints related to children with similar legal power with the National Commission for Women
http://www.bernama.com.my/bernama/v3/news.php?id=245230
Saturday, February 03, 2007
An eye-opener for police
Much more needs to be done to sensitise cops entrusted with the task of locating missing persons, says DEVESH K. PANDEY
The Hindu 3, February
The Noida killings have acted as an eye-opener for the Delhi police. Although they have initiated a series of measures to ensure that such gory incidents do not take place in the Capital, it seems much more needs to be done to sensitise police personnel who are entrusted with the task of locating missing persons. To begin with, the Delhi police have shown great alacrity in taking steps to send across a strong message to the public that their children are well protected here. Following a hue and cry over the Nithari killings in Noida, the top brass not only sought the updated data on missing persons but also directed the Deputy Commissioners of Police to keep track of pending cases of missing children and strictly adhere to relevant standing orders.
The most significant step has been the formulation of District Missing Persons Units (DMPU). The objective of this unit -- which is headed by an Assistant Commissioner of Police -- is to constantly monitor complaints of missing persons in coordination with the Missing Persons Squad and the Crime Branch. While the DMPUs have now become functional and reports about missing persons are being meticulously tracked and recorded, some police officers feel that there is a need to adopt a judicious approach so that time and effort are not wasted on those missing people who have either been located or in whose disappearance there is no criminal angle involved.
In Delhi, the police have an institutionalised mechanism in place for enquiring into cases of missing persons. Going by the book, on receipt of any such complaint the police are required to flash a message to all the police stations relaying a description of the missing person. Hue and cry notices are then taken out and advertisements published and telecast to seek information from the public. In the case of missing juveniles, there is a standing order to compulsorily register a case of abduction if the child is not located within a short span of time.
Senior officers agree that despite these efforts there are chances that instances of organised crime like the Nithari killings may go undetected if cases of missing persons, especially juveniles, are not investigated on a priority basis. This can also happen in the absence of a sound ground-level intelligence network.
A case in point is a trend noticed in the late 1970s when there was a sudden jump in incidents of children going missing from different parts of South Delhi. Responding to the situation, the police had constituted teams to investigate the matter and caught hold of criminals who abducted the children. As it turned out, the abducted children were being forced into begging.
As this case illustrates, there is a need to take every "missing" complaint with all the seriousness it deserves because what may appear to be simple cases of "elopement" or "people going away out of their own choice'' can end up turning into Nithari-like episodes.
The Hindu 3, February
The Noida killings have acted as an eye-opener for the Delhi police. Although they have initiated a series of measures to ensure that such gory incidents do not take place in the Capital, it seems much more needs to be done to sensitise police personnel who are entrusted with the task of locating missing persons. To begin with, the Delhi police have shown great alacrity in taking steps to send across a strong message to the public that their children are well protected here. Following a hue and cry over the Nithari killings in Noida, the top brass not only sought the updated data on missing persons but also directed the Deputy Commissioners of Police to keep track of pending cases of missing children and strictly adhere to relevant standing orders.
The most significant step has been the formulation of District Missing Persons Units (DMPU). The objective of this unit -- which is headed by an Assistant Commissioner of Police -- is to constantly monitor complaints of missing persons in coordination with the Missing Persons Squad and the Crime Branch. While the DMPUs have now become functional and reports about missing persons are being meticulously tracked and recorded, some police officers feel that there is a need to adopt a judicious approach so that time and effort are not wasted on those missing people who have either been located or in whose disappearance there is no criminal angle involved.
In Delhi, the police have an institutionalised mechanism in place for enquiring into cases of missing persons. Going by the book, on receipt of any such complaint the police are required to flash a message to all the police stations relaying a description of the missing person. Hue and cry notices are then taken out and advertisements published and telecast to seek information from the public. In the case of missing juveniles, there is a standing order to compulsorily register a case of abduction if the child is not located within a short span of time.
Senior officers agree that despite these efforts there are chances that instances of organised crime like the Nithari killings may go undetected if cases of missing persons, especially juveniles, are not investigated on a priority basis. This can also happen in the absence of a sound ground-level intelligence network.
A case in point is a trend noticed in the late 1970s when there was a sudden jump in incidents of children going missing from different parts of South Delhi. Responding to the situation, the police had constituted teams to investigate the matter and caught hold of criminals who abducted the children. As it turned out, the abducted children were being forced into begging.
As this case illustrates, there is a need to take every "missing" complaint with all the seriousness it deserves because what may appear to be simple cases of "elopement" or "people going away out of their own choice'' can end up turning into Nithari-like episodes.
Friday, February 02, 2007
More staff for Juvenile Justice Board sought
The Hindu Jan 31,2007
BANGALORE: After the knee jerk reaction of suspending officials at the observation home at Madivala, the Government seems to be finally taking notice of the many underlying problems in the juvenile justice system that have emerged after the escape of 46 children.
A meeting was held here on Tuesday by child rights organisations and government officials where key recommendations have been made.
The strength of the staff, which stood at nine for 76 children when the break-out took place, was held to be grossly inadequate, for both the care and control of the children.
"At least four probationary officers, 10 guards and four wardens have been recommended for a better functioning of the observation homes," says Arlene Manoharan, research officer at the Centre for the Child and Law at National Law School of India University.
For better functioning of the Juvenile Justice Board, more administrative staff and a permanent office have been recommended.
Since one of the problems faced at the observation home included the younger children sharing space with older ones accused of more serious offences, segregation of the children based on their ages and offences has been recommended. To this effect, separate living arrangements to house the ones accused of more serious offences has been proposed.
A multi-disciplinary committee could take on this responsibility of classification. The committee could also provide the magistrate with informed opinion on the bail and final orders of the children, says Ms. Manoharan.
The other areas of concern included lack of legal and psychological assistance provided to the children. The government extends no legal help to the children, which is handled almost solely by Empowerment of Children and Human Right's Organisation (ECHO). Similarly, virtually no government provided facility for regular counselling exists, which is handled at the Observation centre largely by two non-government organisations, ECHO and BOSCO at the moment. A mental health team has been proposed to help children through their stay at the observation home.
Police reforms
Father Anthony Sebastian, Director, ECHO, believes that the Special Juvenile Police Unit needs to be strengthened, as a step toward reform of the police system.
"Only three divisions have such a unit, where a special officer is employed to look at these cases in a child-friendly way. We need all the city divisions to have such a unit, and also to increase the number of officers from one to three. We need more women officers to take charge of cases where a girl child is involved," he said.
The suspension of the superintendent was unanimously believed to be unnecessary. "Everyone objects to the suspension of Kamalamma. She was one of the few staff members who was able to handle the children in a sensitive and effective manner. She happened to be out, on duty, when the break-out happened," Fr. Anthony said.
BANGALORE: After the knee jerk reaction of suspending officials at the observation home at Madivala, the Government seems to be finally taking notice of the many underlying problems in the juvenile justice system that have emerged after the escape of 46 children.
A meeting was held here on Tuesday by child rights organisations and government officials where key recommendations have been made.
The strength of the staff, which stood at nine for 76 children when the break-out took place, was held to be grossly inadequate, for both the care and control of the children.
"At least four probationary officers, 10 guards and four wardens have been recommended for a better functioning of the observation homes," says Arlene Manoharan, research officer at the Centre for the Child and Law at National Law School of India University.
For better functioning of the Juvenile Justice Board, more administrative staff and a permanent office have been recommended.
Since one of the problems faced at the observation home included the younger children sharing space with older ones accused of more serious offences, segregation of the children based on their ages and offences has been recommended. To this effect, separate living arrangements to house the ones accused of more serious offences has been proposed.
A multi-disciplinary committee could take on this responsibility of classification. The committee could also provide the magistrate with informed opinion on the bail and final orders of the children, says Ms. Manoharan.
The other areas of concern included lack of legal and psychological assistance provided to the children. The government extends no legal help to the children, which is handled almost solely by Empowerment of Children and Human Right's Organisation (ECHO). Similarly, virtually no government provided facility for regular counselling exists, which is handled at the Observation centre largely by two non-government organisations, ECHO and BOSCO at the moment. A mental health team has been proposed to help children through their stay at the observation home.
Police reforms
Father Anthony Sebastian, Director, ECHO, believes that the Special Juvenile Police Unit needs to be strengthened, as a step toward reform of the police system.
"Only three divisions have such a unit, where a special officer is employed to look at these cases in a child-friendly way. We need all the city divisions to have such a unit, and also to increase the number of officers from one to three. We need more women officers to take charge of cases where a girl child is involved," he said.
The suspension of the superintendent was unanimously believed to be unnecessary. "Everyone objects to the suspension of Kamalamma. She was one of the few staff members who was able to handle the children in a sensitive and effective manner. She happened to be out, on duty, when the break-out happened," Fr. Anthony said.
Monday, January 22, 2007
India Assesment Report On Trafficking Released by US State Department
The Government of India has made some progress in combating its significant problem of trafficking in persons since the release of the 2006 Report. In September 2006, the central government responded to the need for a central anti-trafficking law enforcement effort by creating a two-person federal "nodal cell," responsible for collecting and analyzing data of state-level law enforcement efforts, identifying problem areas and analyzing the circumstances creating these areas, monitoring action taken by State governments for combating trafficking in these areas, and organizing coordination meetings with the nodal police officers of the states responsible for trafficking in persons crimes. However, the government still needs to go further in designating and empowering a national agency or office specifically tasked with carrying out an effective law enforcement response to trafficking crimes committed throughout India. The Government has provided significant in-kind contributions to a USG-funded United Nations Office of Drugs and Crime (UNODC) two-year program in Maharashtra, Goa, West Bengal, and Andhra Pradesh, focused on raising the awareness of police and prosecutors on the problem of trafficking and to build the capacity of these police and prosecutors to investigate and prosecute persons involved with trafficking. Law enforcement activity to combat trafficking in persons remains confined to the state-level and continues to be relatively low in comparison to the estimated extent of the situation. However, in June, two former state ministers in Jammu and Kashmir were arrested for trafficking in minor girls for commercial sexual exploitation, along with other senior government officials. Two traffickers in Delhi were also convicted and sentenced to three and seven years in prison, and another was arrested in August.
In November 2006, the Parliamentary Committee returned the amendments to the Immoral Trafficking Prevention Act to the Ministry of Women and Child Development for revision. The Committee asked the Ministry to clarify language, provide a clearer delineation between criminals and victims, prioritize programs and resources for expanded rehabilitation and reintegration efforts, and recommended passage of the bill with those changes.
Despite estimates of a significant debt bondage situation in the country, the Government of India reports no arrests, prosecutions, or convictions of employers using bonded labor. India similarly did not provide evidence of any rescues of victims of bonded labor. India did, however, make moderate progress on addressing child labor; between September and November, Delhi police rescued 140 children working in "zari" factories and rice mills, but it is unclear how these children have been rehabilitated. In October, the government also enacted a ban on the employment of children in domestic work or the hospitality industry with penalties including 3 months to 2 years incarceration and the possibility of fines.
Monday, December 11, 2006
CJI for judicial accountability
CJI for judicial accountabilityRavi Dayal
[ 10 Dec, 2006 0222hrs ISTTIMES NEWS NETWORK ]
PATNA: Chief Justice of India Y K Sabharwal on Saturday favoured detailed deliberations on the proposed Judicial Accountability Bill in Parliament. He, however, skirted concerns expressed by MPs about judicial activism that impinged on the sovereignty of the legislature. Inaugurating a national seminar on "Erosion of values in judicial system and its refurbishment" here, Justice Sabharwal said he does not find anything wrong in introduction of the Bill as it is within the ambit of judiciary. However, "if you cannot trust the President, Prime Minister, the Chief Justice of India, I can only say sorry", he added. The seminar was organised jointly by the Bar Council of India and Bihar State Bar Council. Justice Sabharwal said he wants corruption level in judiciary to be zero. "Rampant corruption among the staff in the subordinate judiciary shatters the confidence of litigants in the judicial system," he said, stressing the need for transparency and accountability. He said the implementation of court orders by the governments remains a grey area. The Central and state governments are the first respondents in 17,000 of the 35,000 petitions pending in the Supreme Court, he said, adding the governments are the biggest litigants. He was critical of the mushroom growth of law colleges which, he felt, has been affecting the quality of lawyers. The Bar Council of India, which grants affiliation to these colleges, should do some introspection in this regard. He also said the Indian courts have a huge workload but few facilities to cope up with the pressure compared to many developed and developing countries. Justice B P Singh of the Supreme Court said unnecessary criticism of an institution harms it. He attributed much of the criticism of judiciary to misunderstanding. Another Supreme Court judge, Justice S B Sinha, said, "We must try to refurbish the image of justice delivery system." He also gave a feel-good kind of certificate to Bihar judges when he said the performance of judicial officers of the state is good compared to their counterparts in other parts of the country. Former Chief Justice of Kolkata High Court and Andhra Pradesh High Court, Justice P S Mishra also said the fall in standards of judicial system is not as much in Bihar as in other states. Former CJI Jagannath Pattnaik underlined the importance of judiciary saying if the judicial system fails, the democracy will fail. "If I say there is no erosion of the values in judicial system, it will be sheer hypocrisy," he said, adding accountability and transparency must be ensured. He was equally critical of lawyers. "In the past, lawyers commanded respect but now they are demanding it," he said exhorting lawyers to restore the old glory to judicial system.
[ 10 Dec, 2006 0222hrs ISTTIMES NEWS NETWORK ]
PATNA: Chief Justice of India Y K Sabharwal on Saturday favoured detailed deliberations on the proposed Judicial Accountability Bill in Parliament. He, however, skirted concerns expressed by MPs about judicial activism that impinged on the sovereignty of the legislature. Inaugurating a national seminar on "Erosion of values in judicial system and its refurbishment" here, Justice Sabharwal said he does not find anything wrong in introduction of the Bill as it is within the ambit of judiciary. However, "if you cannot trust the President, Prime Minister, the Chief Justice of India, I can only say sorry", he added. The seminar was organised jointly by the Bar Council of India and Bihar State Bar Council. Justice Sabharwal said he wants corruption level in judiciary to be zero. "Rampant corruption among the staff in the subordinate judiciary shatters the confidence of litigants in the judicial system," he said, stressing the need for transparency and accountability. He said the implementation of court orders by the governments remains a grey area. The Central and state governments are the first respondents in 17,000 of the 35,000 petitions pending in the Supreme Court, he said, adding the governments are the biggest litigants. He was critical of the mushroom growth of law colleges which, he felt, has been affecting the quality of lawyers. The Bar Council of India, which grants affiliation to these colleges, should do some introspection in this regard. He also said the Indian courts have a huge workload but few facilities to cope up with the pressure compared to many developed and developing countries. Justice B P Singh of the Supreme Court said unnecessary criticism of an institution harms it. He attributed much of the criticism of judiciary to misunderstanding. Another Supreme Court judge, Justice S B Sinha, said, "We must try to refurbish the image of justice delivery system." He also gave a feel-good kind of certificate to Bihar judges when he said the performance of judicial officers of the state is good compared to their counterparts in other parts of the country. Former Chief Justice of Kolkata High Court and Andhra Pradesh High Court, Justice P S Mishra also said the fall in standards of judicial system is not as much in Bihar as in other states. Former CJI Jagannath Pattnaik underlined the importance of judiciary saying if the judicial system fails, the democracy will fail. "If I say there is no erosion of the values in judicial system, it will be sheer hypocrisy," he said, adding accountability and transparency must be ensured. He was equally critical of lawyers. "In the past, lawyers commanded respect but now they are demanding it," he said exhorting lawyers to restore the old glory to judicial system.
Saturday, December 09, 2006
Some SC verdicts are remarks, not court's decision
Some SC verdicts are remarks, not court's decisionDhananjay Mahapatra
[ 27 Nov, 2006 0026hrs ISTTIMES NEWS NETWORK ]
NEW DELHI: The UPA government will be thankful to attorney general Milon Banerjee for taking the steam off the controversy arising from the Supreme Court's recent judgment on application of creamy-layer exclusion policy to all backward classes, including SCs and STs. In the erudite opinion of the A-G, government need not burn the midnight oil in finding a way out of the caste triggered maze presented by the court while giving its judgment on the reservation within reservation issue pertaining to promotions in government jobs. The verdict was meant for OBCs and the ancillary observations need not be taken seriously as a direction, A-G appeared to have said by terming the creamy layer reference in the judgment as obiter dicta. An obiter dictum, Latin for a statement made "by the way", is a remark or observation made by a judge that, while included in the body of court's opinion, does not necessarily form part of the court's decision, even if they happen to be correct statements of law. Whoever had invented the coinage obiter dicta must have been in a situation similar to the one thrust upon the A-G, who knows the coalition nature of the government he represents before the courts and the importance of caste-based politics. He did well by terming the most sensitive and strong remarks in the judgment as obiter dicta. His approach to the problem was reflective of the traditional approach of governments, irrespective of the political party at the helm of affairs, that is to term the apex court's inconvenient observations as obiter dicta. From Bommai to Bihar, the SC in the last 10 years has given several judgments laying down guidelines and standards for imposition of President's rule in a state. Did the sanctity of the law laid down by the apex court under Article 142 prevent the Centre from dismissing inconvenient state governments bowing to pressures of its allies? Why should it be, for there were equally erudite law ministers and law officers who must have termed these judgments as obiter dicta. The Bommai case may be old enough to be forgotten. But take the judgment of the five-judge Bench on the action of Bihar governor Buta Singh to recommend dissolution of the assembly last year to prevent the NDA from coming to power by stitching together a rag-tag coalition. The judgment was an academic exercise to test the purity of the governor's action and Buta Singh failed miserably. A furious court singled him out for some special treatment terming his apprehension as "fanciful assumptions" and holding him and the council of ministers, which advised imposition of President's rule in Bihar, to have acted in tandem to "subvert the Constitution". Sample these: "Governor is not an autocratic political ombudsman"; "Buta Singh's action was a mere pretence. The real objective was to prevent Nitish from staking claim to form government"; "Clearly the governor has misled the council of ministers"; and "Report recommending dissolution of assembly was a mere ipse dixit, suspicion, whims and fancies of the governor". Had these been aimed at the holder of a constitutional post in any other country, he was sure to have resigned but Buta Singh continued.
[ 27 Nov, 2006 0026hrs ISTTIMES NEWS NETWORK ]
NEW DELHI: The UPA government will be thankful to attorney general Milon Banerjee for taking the steam off the controversy arising from the Supreme Court's recent judgment on application of creamy-layer exclusion policy to all backward classes, including SCs and STs. In the erudite opinion of the A-G, government need not burn the midnight oil in finding a way out of the caste triggered maze presented by the court while giving its judgment on the reservation within reservation issue pertaining to promotions in government jobs. The verdict was meant for OBCs and the ancillary observations need not be taken seriously as a direction, A-G appeared to have said by terming the creamy layer reference in the judgment as obiter dicta. An obiter dictum, Latin for a statement made "by the way", is a remark or observation made by a judge that, while included in the body of court's opinion, does not necessarily form part of the court's decision, even if they happen to be correct statements of law. Whoever had invented the coinage obiter dicta must have been in a situation similar to the one thrust upon the A-G, who knows the coalition nature of the government he represents before the courts and the importance of caste-based politics. He did well by terming the most sensitive and strong remarks in the judgment as obiter dicta. His approach to the problem was reflective of the traditional approach of governments, irrespective of the political party at the helm of affairs, that is to term the apex court's inconvenient observations as obiter dicta. From Bommai to Bihar, the SC in the last 10 years has given several judgments laying down guidelines and standards for imposition of President's rule in a state. Did the sanctity of the law laid down by the apex court under Article 142 prevent the Centre from dismissing inconvenient state governments bowing to pressures of its allies? Why should it be, for there were equally erudite law ministers and law officers who must have termed these judgments as obiter dicta. The Bommai case may be old enough to be forgotten. But take the judgment of the five-judge Bench on the action of Bihar governor Buta Singh to recommend dissolution of the assembly last year to prevent the NDA from coming to power by stitching together a rag-tag coalition. The judgment was an academic exercise to test the purity of the governor's action and Buta Singh failed miserably. A furious court singled him out for some special treatment terming his apprehension as "fanciful assumptions" and holding him and the council of ministers, which advised imposition of President's rule in Bihar, to have acted in tandem to "subvert the Constitution". Sample these: "Governor is not an autocratic political ombudsman"; "Buta Singh's action was a mere pretence. The real objective was to prevent Nitish from staking claim to form government"; "Clearly the governor has misled the council of ministers"; and "Report recommending dissolution of assembly was a mere ipse dixit, suspicion, whims and fancies of the governor". Had these been aimed at the holder of a constitutional post in any other country, he was sure to have resigned but Buta Singh continued.
Thursday, December 07, 2006
Thousands protest for rights over India's forests
By Nita Bhalla
NEW DELHI, Nov 29 (Reuters) - Thousands of India's poorest and most marginalised people gathered in the heart of New Delhi and other cities on Wednesday demanding rights over the remote forest land where they have lived for centuries.
Women in brightly coloured saris and men in turbans from far-flung rural areas waved banners and punched their fists in the air calling on the government to quickly pass a law recognising their rights.
"Who will look after the forests? We will. We will," they chanted. "Who do the forests belong to? They belong to us."
More than 40 million people live in India's resource-rich forest areas including protected wildlife reserves and dense woodland, eking out a meagre living from simple farming, picking fruit and collecting honey.
For generations they have had no legal right to the land or the use of forest resources.
They say they have been treated as "encroachers" and "criminals" on their own land and forced to leave it by forestry officials, mining and logging companies.
"Millions of impoverished people ironically live in the richest lands in India, but they have not been able to benefit from the land," said Shankar Gopalakrishnan from the Campaign for Dignity and Survival, a union of forest community groups.
"EVICTED, BEATEN, TORTURED"
"Every year, hundreds of thousands are forcefully evicted, beaten, tortured and their homes are demolished by officials and businessmen who want to use the land for their own purposes."
Similar protests took place in the eastern cities of Bhubaneswar and Ranchi, where thousands of forest dwellers gathered, beating drums and chanting slogans. Fifty-four-year-old Rambati Bai said despite spending more than 60 years living in Sunabeda Wildlife Sanctuary in the eastern state of Orissa, she and her family were not allowed to call the forest home.
"Last year, the forest officials came to my village and told us to leave the forest. Is it that easy? How can we live in another place?" said the woman, clad in a shabby, crumpled white sari.
Others said they had been jailed for months for refusing to leave the land that they and their forefathers had cultivated for generations.
The government is expected to pass a new law -- the Recognition of Forest Rights Bill 2005 -- before the end of the year which would, for the first time, give forest dwellers the right to own the land they have been using.
But some wildlife groups have voiced concern about the bill, saying it would give too much protection to forest people and would threaten efforts to save endangered tigers.
Activists for the forest dwellers say the bill has already been watered down to give people little power after pressure by green groups and powerful logging and mining companies.
"The government is using conservation as an excuse not to give us rights," said S.R. Hiremath of Samaj Parivartana Samudaya, a local charity working with forest communities in the southern state of Karnataka.
"We are not a threat to the environment and not a threat to animals. For centuries, we have lived in co-existence with the environment and its destruction is because of the mining and paper companies."
NEW DELHI, Nov 29 (Reuters) - Thousands of India's poorest and most marginalised people gathered in the heart of New Delhi and other cities on Wednesday demanding rights over the remote forest land where they have lived for centuries.
Women in brightly coloured saris and men in turbans from far-flung rural areas waved banners and punched their fists in the air calling on the government to quickly pass a law recognising their rights.
"Who will look after the forests? We will. We will," they chanted. "Who do the forests belong to? They belong to us."
More than 40 million people live in India's resource-rich forest areas including protected wildlife reserves and dense woodland, eking out a meagre living from simple farming, picking fruit and collecting honey.
For generations they have had no legal right to the land or the use of forest resources.
They say they have been treated as "encroachers" and "criminals" on their own land and forced to leave it by forestry officials, mining and logging companies.
"Millions of impoverished people ironically live in the richest lands in India, but they have not been able to benefit from the land," said Shankar Gopalakrishnan from the Campaign for Dignity and Survival, a union of forest community groups.
"EVICTED, BEATEN, TORTURED"
"Every year, hundreds of thousands are forcefully evicted, beaten, tortured and their homes are demolished by officials and businessmen who want to use the land for their own purposes."
Similar protests took place in the eastern cities of Bhubaneswar and Ranchi, where thousands of forest dwellers gathered, beating drums and chanting slogans. Fifty-four-year-old Rambati Bai said despite spending more than 60 years living in Sunabeda Wildlife Sanctuary in the eastern state of Orissa, she and her family were not allowed to call the forest home.
"Last year, the forest officials came to my village and told us to leave the forest. Is it that easy? How can we live in another place?" said the woman, clad in a shabby, crumpled white sari.
Others said they had been jailed for months for refusing to leave the land that they and their forefathers had cultivated for generations.
The government is expected to pass a new law -- the Recognition of Forest Rights Bill 2005 -- before the end of the year which would, for the first time, give forest dwellers the right to own the land they have been using.
But some wildlife groups have voiced concern about the bill, saying it would give too much protection to forest people and would threaten efforts to save endangered tigers.
Activists for the forest dwellers say the bill has already been watered down to give people little power after pressure by green groups and powerful logging and mining companies.
"The government is using conservation as an excuse not to give us rights," said S.R. Hiremath of Samaj Parivartana Samudaya, a local charity working with forest communities in the southern state of Karnataka.
"We are not a threat to the environment and not a threat to animals. For centuries, we have lived in co-existence with the environment and its destruction is because of the mining and paper companies."
Shortage of judges acute in U.P.
Shortage of judges acute in U.P.
748 posts to be filled against a sanctioned strength of 2,172
New Delhi: Uttar Pradesh ranks highest in terms of shortage of judges with 748 posts still to be filled against a sanctioned strength of 2,172 for district courts in the State.
This accounts for more than 28 per cent of nationwide shortage of 2,655 judges against the total sanctioned strength of 14,305 across the country, according to official figures.
In terms of judges shortage, Uttar Pradesh was followed by Bihar with a figure of 472 against the sanctioned strength 1163 for the state.
Yet further down are Maharashtra with (216), Karnataka (138), West Bengal (110), Rajasthan (106) and Madhya Pradesh (106). The remaining States have two-digit shortage. In States like Arunachal Pradesh and Nagaland and union territories of Andaman and Nicobar Islands, Dadra and Nagar Haveli judges worked in full strength.
The judges to population ratio still stood at 13 per ten lakh people against the required 50 judges per ten lakh people in the country.
The onus of filling posts of judges at district level courts lies with State governments and respective High Courts and the Centre has written to them that all vacant positions should be filled.
As for the High Courts, the shortage figure stood at 71 against the sanctioned strength of 686 judges and a review of shortage, which is carried out every three years, is pending this year.
In Supreme Court, there is a shortage of four judges against the total sanctioned strength of 26 judges.
Apart from shortage of judges, the pendency of cases can be ascribed to factors such as increase in number of cases, new laws, rise in population, heightened awareness among citizens of their legal rights, adjournments, lawyers strikes, increase in socio-economic matters, legal and administrative aspects touching the lives of the citizens. -- PTI
http://www.hindu.com/2006/12/06/stories/2006120611880300.htm
748 posts to be filled against a sanctioned strength of 2,172
New Delhi: Uttar Pradesh ranks highest in terms of shortage of judges with 748 posts still to be filled against a sanctioned strength of 2,172 for district courts in the State.
This accounts for more than 28 per cent of nationwide shortage of 2,655 judges against the total sanctioned strength of 14,305 across the country, according to official figures.
In terms of judges shortage, Uttar Pradesh was followed by Bihar with a figure of 472 against the sanctioned strength 1163 for the state.
Yet further down are Maharashtra with (216), Karnataka (138), West Bengal (110), Rajasthan (106) and Madhya Pradesh (106). The remaining States have two-digit shortage. In States like Arunachal Pradesh and Nagaland and union territories of Andaman and Nicobar Islands, Dadra and Nagar Haveli judges worked in full strength.
The judges to population ratio still stood at 13 per ten lakh people against the required 50 judges per ten lakh people in the country.
The onus of filling posts of judges at district level courts lies with State governments and respective High Courts and the Centre has written to them that all vacant positions should be filled.
As for the High Courts, the shortage figure stood at 71 against the sanctioned strength of 686 judges and a review of shortage, which is carried out every three years, is pending this year.
In Supreme Court, there is a shortage of four judges against the total sanctioned strength of 26 judges.
Apart from shortage of judges, the pendency of cases can be ascribed to factors such as increase in number of cases, new laws, rise in population, heightened awareness among citizens of their legal rights, adjournments, lawyers strikes, increase in socio-economic matters, legal and administrative aspects touching the lives of the citizens. -- PTI
http://www.hindu.com/2006/12/06/stories/2006120611880300.htm
Delhi HC tells Centre to file reply in Sanskriti School case
New Delhi, Dec 05: The Delhi High Court today asked the Centre to file a detailed reply on a government proposal to grant Rs 10-crore to the capital's elite Sanskriti School and if it was a one-time grant or paid on a regular basis. A division bench headed by Justice Swatanter Kumar has sought clarification from the government if there was any specific policy for the release of such a one-time grant by the different arms of the government.The court also wanted to know if the government was planning to release any other grants soon while giving the latter four weeks' time to file its reply.The court had taken suo moto cognisance of news reports that the government was planning a Rs 10-crore grant for Sanskriti School set up by wives of top bureaucrats.It had taken up the matter as a PIL in which the question was debated as to why the government was routing large public resources to a school not accessible to children belonging to the weaker sections of the society.Arguing on behalf of the school, its counsel Arun Jaitley challenged the court's powers to examine a budgetary provision by Parliament."Any grant made under the budgetary provision was beyond the scope of the judiciary," he contended.Claiming that the school provided 20 per cent reservation to children from weaker sections of society, he questioned the illegality of receipt of government grants by it.Meanwhile, the court has issued a notice to the journalist based on whose report a PIL was filed.
Bureau Report
http://www.zeenews.com/znnew/articles.asp?aid=340180&sid=REG
Bureau Report
http://www.zeenews.com/znnew/articles.asp?aid=340180&sid=REG
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