A proven case

V VENKATESAN IN THE FRONTLINE

THE case Nandini Sundar vs State of Chhattisgarh arose out of a writ petition (civil) filed in 2007 in the Supreme Court by Nandini Sundar, a Professor of sociology at the Delhi School of Economics; Ramachandra Guha, a historian; and E.A.S. Sarma, former Secretary to Government of India and former Commissioner, Tribal Welfare, Government of Andhra Pradesh. The petitioners had alleged that the State of Chhattisgarh was actively encouraging a group called Salwa Judum, a civil vigilante structure, to counter Maoist insurgency, and that had resulted in violation of human rights.

The State government created Salwa Judum in June 2005, projecting it as a spontaneous people’s movement to take care of the law and order situation in the naxalite-prone Dantewada district. It comprised about 6,500 Special Police Officers (SPOs), or Koya commanders, appointed by the State government. The force was substantially financed by the Central government. Its members started out with meetings in and around Kutru village of Dantewada district under the aegis of the Jan Jagran Abhiyan. The Jan Jagran Abhiyan was subsequently renamed Salwa Judum.

In May 2006, Nandini Sundar, Guha and Sarma undertook a fact-finding mission to Chhattisgarh as part of the Independent Citizens’ Initiative and heard complaints against the activities of Salwa Judum. They then approached the National Human Rights Commission (NHRC), the Prime Minister, the Union Home Minister, and the National Commission for Scheduled Tribes, among others, and alerted them about the human rights violations by Salwa Judum. Failing to elicit an effective response from them, the civil rights activists approached the Supreme Court with a writ petition.

The Salwa Judum case was one of those rare cases heard by the Supreme Court; it was heard for 26 days spread over five years. Eleven judges, belonging to different Benches comprising two or three judges, heard the matter at different times. When Justice B. Sudarshan Reddy and Justice Surinder Singh Nijjar delivered the judgment in the case on July 5, they did so after hearing the case for 16 days during 2010-11.

According to Nandini Sundar, all the judges who heard the case were sympathetic towards the concerns raised in the petition. The hearings in the case could have concluded much earlier had the Chhattisgarh government not sought frequent and unnecessary adjournments.

The Reddy-Nijjar Bench held that the formation of Salwa Judum on a temporary basis was an abdication of the state of its constitutional responsibility to provide appropriate security to citizens by having an appropriately trained professional police force, of sufficient numbers and with proper equipment on a permanent basis. The Bench also held that the Salwa Judum policy violated both Articles 14 (equality before law) and 21 (protection of life and personal liberty) of those employed as SPOs as well as of the citizens living in those areas. Therefore, the Bench ordered the State government to disarm the SPOs, desist from using them to counter Maoist activities, and protect their lives.

The Bench also directed the State government to prevent the operation of Salwa Judum or any other such group that seeks to take the law into its own hands or violates the human rights of any person. The Bench held that the appointment of SPOs to perform any of the duties of regular police officers was unconstitutional.

Unusual case

Nandini Sundar was also an unusual case in that the court undertook to examine the issues of evidence very much like a trial court and yet did not compromise on the standards to be adopted while evaluating evidentiary issues. The court found its task easy to carry out primarily because most of the allegations made in the petition stood proven in terms of admissions by the State and Central governments and their corroboration by a number of independent fact-finding reports.

The state sponsorship of Salwa Judum was clear and could not be denied. The petitioners showed to the court that Salwa Judum activists, accompanied by security forces and the district police, went into villages, burnt houses, looted grain, livestock and money, and even raped women and killed individuals. Reports by Human Rights Watch, the National Commission for Protection of Child Rights, and the NHRC corroborated these allegations. In addition to this, the petitioners had annexed testimonies by victims. A documentary film produced by Channel 4 of Britain was included as Annexure F-3 in the evidence provided by the NHRC.

Forcible evacuation of villagers into Salwa Judum camps, which the State government euphemistically referred to as relief camps, was proved. Such villagers were made to abandon their fields and prevented from returning to their homes.

Chhattisgarh Chief Minister Raman Singh denied that minors were appointed as SPOs. However, the petitioners proved that minors were appointed as SPOs by producing their photographs and also the police memorials to SPOs Sujeet Kumar Mandavi and Manglu Ram showing that they were 17 and 18 years old respectively when they were killed in a naxalite attack on the Rani Bodli outpost.

A picture of mass violation of fundamental constitutional rights emerged from the testimonies of residents of 110 villages, given at an open rally organised by the Adivasi Mahasabha in June 2007 in Cherla in Khammam district of Andhra Pradesh. The translations of these testimonies (with originals in Gondi and Hindi) were given to the court as annexures to the writ petition. The lists of people killed or raped, and the number of houses burnt were also annexed to the petition. Independent reports corroborated these testimonies.

In the first two years of Salwa Judum (2005-07), the number of people forcibly removed from 644 naxalite-affected villages to Salwa Judum camps was 47,238. There were 20 such camps. These data, taken from an official memorandum of the State government, were annexed to the petition.

Considering the facts of the recruitment of SPOs, the court expressed its dismay at the violation of law. It found that the State government recruited the SPOs first under Section 17 of the Indian Police Act, 1861 (IPA), and later under Sections 9(1) or 9(2) of the Chhattisgarh Police Act, 2007 (CPA). Section 9(1) or 9(2) of the CPA does not specify the conditions under which the Superintendent of Police may appoint “any person” as an SPO.

The court felt that that would be a grant of discretion without any indicia or specification of limits, on the number of SPOs who could be appointed, their qualifications, their training or their duties. Conferment of such unguided and unchannelised power, by itself, would clearly be in the teeth of Article 14, it said. In contrast, Section 17 of the IPA sets forth the circumstances under which such appointments could be made and the conditions to be fulfilled. The court, therefore, held the appointment of SPOs to perform any of the duties of regular police officers other than those specified in Sections 23(1)(a)(h) and 23(1)(a)(i) of the CPA (dealing with disasters and movement of people and vehicles) unconstitutional.

It was also dissatisfied with the State government’s New Regulatory Procedures governing the recruitment of SPOs, which made it clear that the SPOs were to be used for counter-insurgency activities. The court agreed with the petitioners that the lives of thousands of tribal youth appointed as SPOs were placed in grave danger because they were employed in counter-insurgency activities.

The State government cynically claimed in its affidavit that 173 of the SPOs “sacrificed their lives” in this bloody battle, thus proving the petitioner’s contention, the court observed. It also noted that the SPOs suffered a higher rate of deaths, as opposed to what the formal security forces suffered, and this only implied that the SPOs were involved in front-line battles or that they were placed in much more dangerous circumstances without adequate safety of numbers and strength that formal security forces would possess.

The court noted that the SPOs had become cannon fodder in the killing fields of Dantewada and other districts of the State and that the training they received was clearly insufficient. It was shocked that the SPOs, with little or no education, were expected to learn the requisite range of analytical skills and legal concepts and familiarise themselves with other sophisticated aspects of knowledge within a span of two months. Although the State government claimed that it had preferred candidates who had passed the fifth standard for recruitment as SPOs, it implied that some, or many, who had been recruited might not have passed the grade. As the SPOs had such limited schooling, the court found the State government’s claim that they had learnt legal subjects in 42 hours astounding.

While the State government stated that the SPOs were provided firearms only for self-defence, the court felt that they were being placed in volatile situations in which the distinction between self-defence and unwarranted firing might be very thin. It would require a high level of discretionary judgment, which the young SPOs were incapable of exercising, the court said.

In Paragraph 49, the court referred to the State government’s admission that many of the youth who were willing to be recruited as SPOs were motivated by the fact that they or their families had been victims of naxalite violence or wanted to defend their hearth and home from naxalite attacks.

From this the court inferred that those recruited as SPOs might be actuated by feelings of revenge. Such feelings, it opined, would hinder the development of a cool and dispassionate analysis of Maoist actions and could even result in the SPOs branding non-Maoists as Maoists or Maoist sympathisers and causing more people to take up arms against the state.

The court also deplored the Central government’s argument that its role was limited to approving the total number of SPOs and the extent of reimbursement of the “honorarium” paid to them and that it had nothing to do with issuing directions as to how the SPOs were to be recruited, trained and deployed.

It reminded the Central government that the Constitution cast a positive obligation on the Centre to undertake all such necessary steps to protect the fundamental rights of all citizens and, in some cases, even of non-citizens. The court noted with concern that it was the financial assistance extended by the Union that had enabled the State government to appoint barely literate tribal youth as SPOs and give them firearms.

The SPOs were paid an honorarium of Rs.3,000 a month, which the Union reimbursed. The court found it clearly unconscionable that the Central government did not find it necessary to evaluate the capabilities of these SPOs and had abdicated its responsibilities. When the Central government expressed its readiness to issue advisories to the State government requiring the latter to recruit SPOs after careful screening and improve the standards of training, it did not at all inspire the confidence of the court that the Centre would take all necessary steps to mitigate a vile social situation that it had, willy-nilly, played an important role in creating.

Many analysts have expressed surprise that the Reddy-Nijjar Bench devoted 22 paragraphs of its judgment to a discussion of ideological issues, which largely appear irrelevant in deciding the issue before the court. These paragraphs indict the neoliberal development paradigm and the resultant privatisation and globalisation in clear terms. This paradigm, expressed succinctly in Paragraph 10, says that unless development occurs, via rapid and vast exploitation of natural resources, the country will not be able to either compete on the global scale or accumulate the wealth necessary to tackle the endemic and seemingly intractable problems of poverty, illiteracy, hunger and squalor.

The court says, on the basis of historical evidence, that a development paradigm depending largely on the plunder and loot of natural resources more often than not leads to the failure of the state and that on its way to such a fate, millions will be condemned to lives of great misery and hopelessness.

Primary motive

Those who are unable to understand the link between these early paragraphs of the judgment with the petition before the court must read Paragraph 53. The Bench says in this paragraph that it is abundantly clear from the affidavits of the State and Central governments that one of the primary motives behind employing tribal youth as SPOs is to make up for the lack of adequate formal security forces on the ground. The court said the situation had been created in large part by the socio-economic policies followed by the state. It reasoned:

“The policy of privatisation has also meant that the State has incapacitated itself, actually and ideologically, from devoting adequate financial resources in building the capacity to control the social unrest that has been unleashed. To use those tribal youngsters as SPOs to participate in counter-insurgency actions… clearly indicates that issues of finance have overridden other considerations such as effectiveness of such SPOs and of constitutional values.”

The Bench observed that involving these ill-equipped and barely literate youngsters in counter-insurgency activities revealed a disrespect for their lives and dignity, thus violating Article 21. Also, the temporary nature of the employment of the SPOs would endanger their lives further by subjecting them to dangers from the Maoists after they were disengaged from duty, the court said.

The Bench also found proof for the violation of Article 14 in that the SPOs were expected to perform all the duties of police officers and were subjected to all the liabilities and disciplinary codes as members of the regular police force, and their lives were placed on the line, plausibly to a greater extent than the members of the regular security forces, and yet they were paid only an “honorarium”.

The Communist Party of India (Maoist) has welcomed the judgment, reassuring the SPOs that the Maoists do not see them as their enemies. The Maoists have promised to take the responsibility of rehabilitating the SPOs and ensuring livelihoods for them if they returned to the villages and severed all ties with the government. According to the People’s Union for Democratic Rights, the CPI (Maoist)’s statement allays the fear that there may be retaliatory violence against the erstwhile SPOs.

The State government has decided to seek a review of the judgment, but the judgment makes it clear that it is the State and Central governments that need to review their approach to the Maoist threat. A number of civil society movements have urged the State government to give priority to instilling confidence among the affected communities by investigating all instances of alleged criminal activities by Salwa Judum, filing of first information reports and ensuring diligent prosecution of all SPOs charged with various offences, apart from rehabilitating the victims, as directed by the Supreme Court.

http://www.frontlineonnet.com/stories/20110812281604300.htm

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Development, justice and the Constitution

Supreme Court of India

KALPANA KANNABIRAN IN THE HINDU

Three judgments by the Supreme Court, in July, demonstrate the significance of social action. They draw important connections between courts, social sciences and social movements; connections that are often forgotten or negated in courts.

Three judgments by the Supreme Court in the month of July mark a sharp departure from pedantic legalism and point to the possibilities of a transformative constitutionalism that sustains and elaborates the idea of constitutional morality developed in the Naz Foundation judgment of the Delhi High Court in 2009. The three cases are also very different pieces that speak to different realities in similar fashion: Ram Jethmalani v Union of India (SIT); Nandini Sundar and Others v State of Chhattisgarh (SJ); and Delhi Jal Board v National Campaign for Dignity and Rights of Sewerage and Allied Workers (DJB). It might be argued, and rightly too, that radical jurisprudence by the Supreme Court is not a recent phenomenon — it has an older history rooted in struggles for civil and political rights. While that is the genealogy of this jurisprudence, we need yet to celebrate each signpost in the development of deliberative jurisprudence that responds not merely to the manifestations of a case, narrowly construed, but sees the larger socio-political context as an inextricable part of the bare facts, so to speak.

The guarantee of public goods — security, infrastructure for governance, law making and enforcement, provision of material and cultural goods especially for classes that lack the power, privilege and status to secure these for themselves — is state obligation. Neither markets (which cater to self-centred activities of individuals and groups) nor purely private social action can be expected to stand in for the state and provide public goods (SIT, 7). Central to the delineation of the problem in these cases is the opening out of the idea of constitutionalism to include a broader idea of justice that enables the mapping of injustice in all its complexity. Tracing the link between the existence of perennial channels for unaccounted monies abroad and the erosion of developmental goals of the state, the Supreme Court contextualises the need to reign in cash flows and ensure total accountability with reference to the structure of a neo-liberal economy. Gunnar Myrdal’s caution about the dangers of a “soft state” that spawns the “unholy nexus between the law maker, the law keeper, and the law breaker” (SIT, 10) is immediately relevant.

“Carried away by the ideology of neo-liberalism, it is entirely possible that the agents of the State entrusted with the task of supervising the economic and social activities may err more on the side of extreme caution, whereby signals of wrongdoing may be ignored even when they are strong. Instances of the powers that be ignoring publicly visible stock market scams, or turning a blind eye to large-scale illegal mining have become all too familiar, and may be readily cited (SIT, 15).”

The framework of justice by this token stretches illimitably beyond the narrow confines of constitutional law and decided cases to the letter and spirit of the constitution.

“Modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetrate state’s violence against anyone, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual (SJ, 3).”

In Chhattisgarh

The court locates the heart of the conflict and repression in Chhattisgarh in the amoral political economy endorsed by the state and the departure of state policy from Nehruvian socialism in favour of a free market economy, the natural corollary of which is “muscular and violent statecraft.” The intimate connections between neo-liberal economic policy and a violently authoritarian state have been demonstrated in one country after another. The routine derogation of fundamental rights and human rights, large-scale displacement and dispossession of primarily indigenous tribal communities is an inseparable part of this process.

Courts have more often than not insulated themselves from philosophical and political frameworks of justice, ploughing the over-trodden, unproductive furrow of strictly applied “constitutional law” instead. Drawing on a wide range of writing — from Conrad’s Heart of Darkness to reports prepared at the instance of the Planning Commission — the Salwa Judum judgment puts back into focus the constitutional scheme with socialism and the directive principles of state policy at the centre. It is against this backdrop that the Supreme Court frames the issue of compliance to Articles 14 and 21, and Article 355 with specific reference to the large-scale occupation of schools and hostels by security forces ostensibly to combat maoist forces; the deployment of the “koya commandos” or the salwa judum and the arbitrary use of extreme violence by this militia armed by the state; the arbitrary terms of employment of this tribal workforce that violates constitutional safeguards; and the obstruction of citizen’s peace missions by the state. The adverse impact of this entire scenario is directly on the adivasi communities of Chhattisgarh — both as gun-toting SPOs and subjugated villagers.

Sewerage workers

The case of the Delhi Jal Board points to the predicament of sewerage workers in a globalised economy where essential jobs are outsourced by the state, which then refuses to take responsibility for the health or safety of workers, and challenges claims to reparations. The specific questions placed before the Supreme Court by the state authorities concerned the locus standi of the National Campaign for Dignity and Rights of Sewerage and Allied Workers; the appropriation of legislative powers by the high court; the validity of the high court’s order of interim compensation to families of workers who had died after inhaling noxious fumes while cleaning manholes. That the state needs judicial intervention (which ironically, it challenges) in order to provide the barest of safeguards and entitlements to the most underprivileged category of workers is cause for concern, throwing as it does, the entire range of constitutional guarantees and obligations to the winds.

While upholding the decision of the Delhi High Court, the Supreme Court importantly for us, asserts that social action litigation is an important part of constitutionalism. In a situation where the implementation of the goals set out in the Preamble to the Constitution has been halting and sporadic over six decades, the court observes, arguments against judicial activism and on judicial overreach have the sole object of tiring out those who espouse the cause of the weak and the poor (DJB, 15). Yet, private social action can only force public accountability — remedies are and must be part of state obligation (as the SIT bench reminds us).

Each of the three cases considered here demonstrate the significance of social action — the campaign against state repression and the Salwa Judum in Chhattisgarh, the nationwide campaign against corruption that began in a sense with the movement for the right to information, and the movement for dignity of workers engaged in hazardous and stigmatised forms of labour. The judgments draw important connections between courts, social sciences and social movements, connections that are often forgotten or negated in courts.

These judgments take a radical view of “development,” thereby addressing not just fundamental rights, but importantly, rendering the Directive Principles justiciable in effect — by resisting a disaggregated reading of the Constitution. At the other end, what the constitutionalism approach to the problem of development accomplishes is the framing of development as a bounded endeavour — and hence of justice as spatially and socially hedged in, to be held together by the state, through clear measures of protection against harm, distribution of good and the realisation of capabilities. These are not responsibilities easily or willingly borne by any government, but are undeniably state responsibility and must be used to discipline governments.

(Kalpana Kannabiran is Director, Council for Social Development, Hyderabad.)

A cruel joke on the nation

JAN LOK PAL

JAN LOK PAL COMMITTEE MEMEBERS

PRASHANT BHUSHAN SR. ADVOCATE  IN THE HINDU

All that the government’s Lokpal bill would do is to create an illusion that it has acceded to the public demand for an independent anti-corruption agency.

The Union Cabinet announced on July 28 that in order to honour the commitment it had given to Anna Hazare and the nation at large, it would table a Lokpal bill during the monsoon session of Parliament beginning on August 1. Though the exact contents of the bill as approved by the Cabinet is not known, its basic features as announced by various Ministers show that such a Lokpal as envisaged in the government’s bill will not be able to tackle any significant case of corruption and will in fact be a cruel joke on the nation.

Looking at the major scams that have erupted in recent times, we find that the government’s Lokpal, apart from being sarkari in the sense that it will be selected by a committee dominated by people from the government, would not be able to investigate them. Thus, it would not be able to investigate the Commonwealth Games scam, the Bellary mining scam or the Adarsh Society scam, since it would have no jurisdiction over State government officials. Similarly, it would not be able to investigate the Public Distribution System scam or the scams in the National Rural Employment Guarantee Scheme, because it would have no jurisdiction over officials below Group A. For the same reason it would not be able to take up any of the corruption cases that plague the common people. It would not even be able to investigate the cash-for-votes scam, since that involves the acts of MPs in Parliament. It would also not be able to properly investigate the 2G spectrum scam, since it cannot call for papers from the Prime Minister’s Office, which are relevant for a proper investigation.

Quite apart from the severely restricted nature of the sarkari Lokpal’s mandate, the distinction drawn by the government’s bill between the level of the officers to be investigated (with lower-level officials to be investigated by the Central Bureau of Investigation (CBI) that is under the government, and higher-level officials by the Lokpal) would create enormous confusion about jurisdiction. Since one often does not know in advance the level of the officers who may be involved in a scam, and usually officials of all levels are involved, one would not know whether to lodge the complaint with the government’s CBI or the sarkari Lokpal. If the CBI started an investigation into the Public Distribution System scam on the basis of the assumption that it involved junior officials, and then found that the money trail goes right up to the top, would the investigation then be transferred to the Lokpal? That would lead to duplication of investigation, apart from the very real possibility of the CBI having already ruined the investigation. That is why different investigative agencies are not designated to investigate offences depending on the identity of the culprits. Thus, normally there is one agency to investigate offences under the Prevention of Corruption Act irrespective of the status of the person involved. There may be a different agency to investigate separate offences under other laws, such as the Enforcement Directorate for offences under the Foreign Exchange Management Act, or the Income Tax Department for offences coming under the Income Tax Act. And will we allow corruption by junior officials to be dealt with by the same agencies that are today sleeping over it?

On UNCAC lines

The Jan Lokpal bill had been framed on the lines suggested by the U.N. Convention Against Corruption (UNCAC), which requires all countries to establish independent anti-corruption agencies which would have the jurisdiction to investigate all public officials. The civil society group has therefore tried to set up a comprehensive, independent, empowered but fully accountable Jan Lokpal which would have an adequate investigative machinery under its control (the anti-corruption wing of the CBI to begin with, which would be brought under the administrative and supervisory control of the Jan Lokpal) and would be able to investigate all Central public servants for corruption. The Jan Lokpal bill also provided for Lokayuktas in the States that would be similarly empowered to investigate State public servants. Moreover, the Jan Lokpal would be selected by a broad-based selection committee that would be largely independent of the government, to avoid the kind of farce that has been witnessed in the selection of the Central Vigilance Commissioner (CVC).

What we have in the government’s bill is an agency that would be essentially selected by the government (five of the nine members of the selection committee would be government nominees), would have jurisdiction over less than half a per cent of the public servants, and would be additionally crippled by the fact of not being able to investigate the Prime Minister, judges or MPs for corruption connected with their acts in Parliament. They say that nine members of the Lokpal cannot handle complaints against 40 lakh Central public servants. But that would be done by the investigating machinery supervised by the Lokpal. It has been estimated that on a ratio of one Lokpal official for every 200 public servants, the Lokpal would have a total of about 20,000 officials working under it. That is a medium-sized department. The Delhi Police alone has 80,000 officials.

On the Prime Minister, judiciary

Some of the provisions of the government’s proposal, such as granting immunity from investigation to the Prime Minister, show illiteracy about the basic features of the Constitution. In 1975, a Constitution Bench of the Supreme Court unanimously struck down the Constitution (39th Amendment) Act that sought to put the election of the Prime Minister above challenge, on the ground that such a provision would violate the basic structure of the Constitution. A provision to grant immunity from investigation and prosecution to the Prime Minister would similarly fall foul of several basic features of the Constitution. In no civilised country is the head of the government immune from corruption investigation. Even in India he or she has not been immune. The CBI can, and occasionally under court directions has, investigated the Prime Minister (as in the case involving some leaders of the Jharkhand Mukti Morcha). The problem is that the CBI is under the Prime Minister himself and therefore cannot conduct a credible investigation of the Prime Minister. That was the entire rationale for an independent Lokpal — to free the agency investigating corruption from the administrative control of the very people that it may seek to investigate. This is precisely what the UNCAC requires.

Similarly, the rationale for the government’s proposal to remove the judiciary from the Lokpal’s ambit suffers also from conceptual confusion. They say that bringing the judiciary within the investigative ambit of the Lokpal would compromise the independence of the judiciary. The judiciary needs to be independent of the government. Normally the police or the CBI can investigate judges for corruption. However, the Supreme Court in Veeraswami’s case directed that since the police are under the government, which can be used by the government to harass judges by way of investigation, the prior written permission of the Chief Justice of India would be required for such investigation. This, despite the fact there had been no instance of any judge being harassed in such a manner, since the judiciary can always use its power of judicial review to quash any mala fide investigation.

However, if the investigation of judges would be done by a Lokpal that would be independent of the government (with the further safeguard in the Jan Lokpal bill that a bench of seven members of the Lokpal would grant permission for investigation or prosecution of judges), the whole rationale for the permission of the Chief Justice disappears. We have seen that in the past such permissions have often been denied even in deserving cases for reasons of conflict of interest. Yet the government’s bill seeks to exempt judicial corruption from being investigated by an independent Lokpal, and seeks to retain the present system of investigation by a government-controlled agency after obtaining permission from the Chief Justice of India.

India is today plagued by corruption of such enormous breadth and depth and running across all public authorities that it is now at serious risk of becoming a banana republic and a mafia state. It was in recognition of this alarming reality, demanding a comprehensive, independent, empowered though accountable anti-corruption authority, that Anna Hazare went on an indefinite fast on April 5, 2011.

After seeing the extent of public support for this demand, the government agreed to a joint drafting committee for the Lokpal bill. Refusing to meet most of the demands of the civil society group in the Jan Lokpal bill, the government has now come out with its bill, which will not succeed in tackling even one per cent of India’s corruption.

All that the bill will do is to create an illusion that the government has acceded to the public demand for an independent anti-corruption agency. But the government will have to pay a heavy price for again having underestimated the ability of the people to see through such a charade. The long suffering people have had enough. Come August 16, they will get a glimpse of public anger.

(Prashant Bhushan is a Senior Advocate and member of the civil society team that drafted the Jan Lokpal Bill.)

http://www.thehindu.com/opinion/op-ed/article2306020.ece

A constitutional value for privacy

USHA RAMANATHAN IN THE HINDU

The fine line between transparency for accountability and transparency as a stand-alone ambition is getting fudged.

The notion of privacy has been under attack in recent times. Information technology, with its seemingly limitless capacity to hold, and give access to, all kinds of data and details about peoples, places, happenings and scores of other facts and fiction, has overwhelmed concerns about privacy. Facebook and its kin, though of remarkably recent origin, have already spun a web of forgetfulness around the significance of privacy.

The possibilities offered by technology have encouraged the state to get greedy for all that it can gather about people. In the beginning, it was only the census. The census was confidential. Not even a court could demand, and get, information about an individual collected as part of the census. The census was to get to know the state of the nation; not to delve into details about individuals. The census belongs to a tradition that is being edged into obscurity by more recent forays into data gathering and use.

Collection of statistics

In the past three years, the state has begun to work at enhancing its capacity to reach into people’s lives and know all. Take, for instance, the 2008 law authorising the collection of statistics. This replaced a law of 1953 vintage that was concerned with “industry, trade and commerce,” and sought the help of returns filed and registers maintained in collecting data and churning out statistics. The 2008 Act is ambitious and expands its interest to “economic, demographic, scientific and environmental aspects.” The 2008 law derives its information from multiple sources, including individuals and households who are bound to give information when asked, on pain of punishment if they refuse or give information that was misleading. The law provides no boundaries reining in the statistician’s curiosity. So, to study sex selective abortion, and given that the skewed sex ratio is a matter for national concern, if the statistician decides to seek household data on miscarriages and abortions, that information has to be provided. And, ultrasound clinics can be called upon to be “informants” (a term the law uses), and we may never know that our personal history has travelled from database to database. Confidentiality is crumbling away, unheeded.

In April 2011, rules made under the Information Technology Act 2000 directed that every user of a cyber cafe should provide information including name, address and identification particulars. This, along with the photograph of the person as also a list of sites the person visited, should be preserved for at least one year. The idea of the friendly neighbourhood cyber café owner being the repository of this information does not seem to have struck the rule-giver as bizarre. Another set of rules, also dated April 11, 2011, gives the government the power to demand and get any data including “sensitive” data from any body corporate. This may include information about mental, physical and physiological health, sexual orientation.

In December 2009, the Home Ministry set up and hosted NATGRID. As a part of this, 21 databases are to feed 11 security agencies. It is closed to scrutiny; so we will never know what is being done with data, but we will all be under surveillance. All, of course, in the interests of national security.

The unique identification, or UID, project, marketed as voluntary and increasingly being projected as mandatory so that enrolment targets can be met, is a tool to achieve convergence of data that exist on various databases. It is, of course, not only the state that has an avid interest in these developments. The “market” supports the idea of connecting databases. Convergence will make the fortunes and foibles of the population transparent to the marketers. It is no wonder that they do not protest.

The explanation

This extraordinary momentum to get to “know” the people of India is explained away as being necessary to curb terrorism, or to prevent leakage and corruption, or as being essential to reach services to the poor. Or to give identity to those who the state does not know exist, and which ignorance can only be remedied by giving them a number by which it may be known that they exist. Or to make it possible to produce good statistics, which could, just perhaps, aid better planning. Ominous terms such as surveillance and “social control” are hardly, if ever, invoked even if they underpin each of these exercises. Revealing a steep decline in respect for civil liberties even among those representing civil society, the National Advisory Council‘s Communal Violence Bill adopted the idea of interception and non-transmission of communication — before it was withdrawn following criticism.

The Jan Lokpal Bill is drenched in a notion of transparency that treats the “private” as the enemy of the public, and as dispensable. In all this, the fine line drawn in the Right to Information discourse between transparency for accountability and transparency as a stand-alone ambition is getting badly fudged.

Now, happily, it has come to pass that the Supreme Court had lent its weight to the constitutional value of privacy in the Black Money judgment (Ram Jethmalani vs. Union of India, decision of July 4, 2011). The government has been objecting to the judgment as being a case of judicial overreach. It is a little difficult to understand this stance. The government had set up a high-level committee comprising 10 senior officers from various revenue and investigating wings of the state. The Supreme Court renamed this as a Special Investigation Team, while including the Director of the Research and Analysis Wing (RAW) in it. It is not clear why, and maybe an explanation would have helped.

What has irked the state, however, is the inclusion of two former judges of the Supreme Court to “guide and direct” the team. The judges found that “the major problem in the matters before us has been the inaction of the state,” and this inertia and lack of urgency needed to be set right. Yet, it is not as though the judges took the matter away from the executive; what they did was to introduce the judicial element, which would monitor progress in the investigation and act as a spur. This could be just what is needed to add a dash of transparency to governmental proceedings.

This same decision goes on to protect the individual person. In a refreshing return to constitutionalism and restoring significance to privacy when placed in a balance with public interest, the judges have expended thought and effort (paragraphs 72-77) in explaining the “right to privacy.” To pluck a couple of statements which are representative of what the judges held: “Right to privacy is an integral part of right to life. This is a cherished constitutional value and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner… We are not proposing that constitutions cannot be interpreted in a manner that allows the nation-state to tackle the problems it faces. The principle is that exceptions cannot be carved out willy-nilly and without forethought as to the damage they may cause.”

The difference between a transparent state and a private citizen has been clearly established. These are words to be weighed while looking for the limits on the power of the state, and as privacy jurisprudence is developed.

(The author is an independent law researcher working on the jurisprudence of law, poverty and rights.)

http://www.thehindu.com/opinion/op-ed/article2306023.ece

Cabinet approves the Lokpal Bill, 2011

The Union Cabinet today approved the proposal for the enactment of a new legislation in the form of the Lokpal Bill, 2011. The Bill provides for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto.

The Bill envisages setting up the institution of Lokpal consisting of Chairperson and eight Members with the stipulation that half of the Members shall be Judicial Members. It will have its own Investigation Wing and Prosecution Wing with such officers and staff as are necessary to carry out its functions.

The Lokpal shall inquire into allegations of corruption made in respect of Prime Minister, after he has demitted office; a Minister of the Union; a Member of Parliament; any Group ‘A’ officer or equivalent; Chairperson or member or officer equivalent to Group ‘A’ in any body/ Board/ corporation/ authority/ company/ society/ trust/ autonomous body established by an Act of Parliament or wholly or partly financed or controlled by the Central Government; any director, manager, secretary or other officer of a society or association of persons or trust wholly or partly financed or aided by the Government or in receipt of any donations from the public and whose annual income exceeds such amount as the Central Government may by notification specify. However, the organisations created for religious purposes and receiving public donations would be outside the purview of Lokpal.

The Lokpal shall not require sanction or approval under Section 197 of the Code of Criminal Procedure, 1973 or Section 19 of the Prevention of Corruption Act, 1988, in cases where prosecution is proposed. The Lokpal will also have powers to attach the property of corrupt public servants acquired through corrupt means

Supreme Court says it has sky-high powers to chase injustice

Supreme Court of India

J VENKATESAN IN THE HINDU

The limits of power exercised by the Supreme Court when it chases injustice are the sky itself, a Bench of the apex court has said.

“It is plenary power exercisable outside the purview of ordinary law to meet the demand of justice. Article 136 of the Constitution is a special jurisdiction. It is residuary power. It is extraordinary in its amplitude. The limits of Supreme Court when it chases injustice are the sky itself,” said the Bench of Justice J. M. Panchal and Justice H. L. Gokhale.

Stopping illegality

“The appellate power vested in the Supreme Court under Article 136 of the Constitution is not to be confused with the ordinary appellate power exercised by appellate Courts and appellate Tribunals under specific statutes. The powers under Article 136 can be exercised by the Supreme Court in favour of a party even suo motu when the Court is satisfied that compelling grounds for its exercise exist,” it said.

Writing the judgment, Justice Panchal said: “Where there is manifest injustice, a duty is enjoined upon this Court to exercise its suo motu power by setting right the illegality in the judgment of the High Court as it is well-settled that illegality should not be allowed to be perpetuated and failure by this Court to interfere with the same would amount to allow illegality to be perpetuated.”

Rejecting the contention that the Supreme Court should not do anything which was not prayed for or challenged, the Bench said: “When an apparent irregularity is found by this Court in an order passed by the High Court, the Supreme Court cannot ignore substantive rights of a litigant while dealing with the cause pending before it. There is no reason why the relief cannot be and should not be appropriately moulded while disposing of an appeal arising by grant of special leave under Article 136 of the Constitution.”

The Bench was of the view that the power under Article 136 “is meant to supplement the existing legal framework. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law.”

Instant case

In the instant case, the appellant, A. Subash Babu, a police officer in Andhra Pradesh, was alleged to have entered into a second marriage by suppressing the fact of his first marriage which was in subsistence. Aggrieved, the second wife filed a complaint for offences of bigamy, suppression, cheating, dowry and cruelty. The Andhra Pradesh High Court quashed the charges of dowry and cruelty, holding that the second marriage was void but allowed other charges to remain. The present appeal was directed against this judgment.

Dismissing the appeal, the Supreme Court held that the woman with whom the second marriage was contracted by suppressing the fact of former marriage would be entitled to maintain complaint against her husband under Sections 494 and 495 of the Indian Penal Code. Further without any appeal against quashing of charges under Section 498 A, the Bench said it could order reopening it to render justice.

Height of perversity

“A bare reading of the complaint together with statutory provisions makes it abundantly clear that the appellant having a wife living, married the second wife by concealing from her the fact of former marriage and, therefore, her complaint against the appellant for commission of offence punishable under Section 494 and 495 IPC is maintainable and cannot be quashed on this ground. To hold that a woman with whom second marriage is performed is not entitled to maintain a complaint under Section 494 IPC though she suffers legal injuries would be height of perversity,” said the Bench.

http://www.thehindu.com/todays-paper/article2289379.ece

Let us amend the law, it is only fair to women

THE HINDU / JUSTICE DR  A R LAKSHMANAN

This refers to the article “A law that thwarts justice” ( The Hindu , June 27, 2011) by Ms. Prabha Sridevan, former Judge of the Madras High Court. I have analysed it and am in agreement with the views expressed by the author for my own reasons.

As Chairman of the Law Commission of India, I took up for consideration the necessity of amending Section 15 of the Hindu Succession Act, 1956 which deals with the general rules of Succession in the case of female Hindus dying intestate — not having made a will before one dies — in view of the vast societal changes that have taken place.

The Hindu Succession Act, 1956 is part of the Hindu Code which includes the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956.

The Hindu Succession Act made a revolutionary change in the law for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding the succession of her husband’s property as also to her father’s property. The Act was amended in 2005 to provide that the daughter of a co-parcener in a joint Hindu family governed by the Mitakshara Law shall, by birth, become a co-parcener in her own right in the same manner as the son, having the same rights and liabilities in respect of the said property as that of a son.

Scheme of succession

Section 15 of the Hindu Succession Act propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate. There are also rules set out in Section 16 of the Act which provides for the order of succession and the manner of distribution among heirs of a female Hindu.

Source of acquisition

The group of heirs of the female Hindu dying intestate is described in 5 categories as ‘a’ to ‘e’ of Section 15 (1) which is illustrated as under:

In a case where she dies intestate leaving property, her property will firstly devolve upon her sons and daughters so also the husband. The children of any pre-deceased son or daughter are also included in the first category of heirs of a female Hindu;

In case she does not have any heir as referred to above, i.e., sons, daughters and husband including children of any pre-deceased sons or daughters (as per clause ‘a’) living at the time of her death, then the next heirs will be the heirs of the husband ;

Thirdly, if there are no heirs of the husband, the property would devolve upon the mother and father ;

Fourthly, if the mother and father are not alive, then the property would devolve upon the heirs of the father which means brother, sister, etc ;

The last and the fifth category is the heirs of the mother upon whom the property of the female Hindu will devolve if in the absence of any heirs falling in the four preceding categories.

This is the general rule of succession, but the Section also provides for two exceptions which are stated in Sub-Section (2). Accordingly, if a female dies without leaving any issue, then the property inherited by her from her father or mother will not devolve according to the rules laid down in the five entries as stated earlier, but upon the heirs of father. And secondly, in respect of the property inherited by her from her husband or father-in-law, the same will devolve not according to the general rule, but upon the heirs of the husband.

The Hindu Succession Bill, 1954, as originally introduced in the Rajya Sabha, did not contain any clause corresponding to Sub-Section (2) of Section 15. It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament. The intent of the legislature is clear that the property, if it originally belonged to the parents of the deceased female, should go to the legal heirs of the father.

So also under Clause (b) of Sub Section (2) of Section 15, the property inherited by a female Hindu from her husband or her father-in-law shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. The fact that a female Hindu originally had a limited right and after acquiring the full right, would not, in any way, alter the rules of succession given in Sub Section (2) of Section 15.

The 174 {+t} {+h} Report of the Law Commission also examined the subject of “Property Rights of Women; Proposed Reforms under the Hindu Law” and had noted that the rules of devolution of the property of a female who dies intestate reflects patriarchal assumptions.

The basis of inheritance of a female Hindu’s property who dies intestate would thus be the SOURCE from which such female Hindu came into the possession of the property and the manner of inheritance which would decide the manner of devolution.

The term ‘property’ though not specified in this Section means property of the deceased heritable under the Act. It includes both movable and immovable property owned and acquired by her by inheritance or by devise or at a partition or by gift or by her skill or exertion or by purchase or prescription. This Section does not differentiate between the property inherited and self-acquired property of a Hindu female; it only prescribes that if a property is inherited from husband or father-in-law, it would go to her husband’s heirs and if the property is inherited from her father or mother, in that case, the property would not go to her husband’s, but to the heirs of the father and mother.

This is very aptly illustrated by the following illustration:- A married Hindu female dies intestate leaving the property which is her self-acquired property. She has no issue and was a widow at the time of her death. As per the present position of law, her property would devolve in the second category, i.e., to her husband’s heirs. Thus, in a case where the mother of her husband is alive, her whole property would devolve on her mother-in-law. If the mother-in-law is also not alive, it would devolve as per the rules laid down in case of a male Hindu dying intestate, i.e., if the father of her deceased husband is alive, the next to inherit will be her father-in-law and if in the third category, the father-in-law is also not alive, then her property would devolve on the brother and sister of the deceased husband.

Thus, in the case of the self-acquired property of a Hindu married female dying intestate, her property devolves on her husband’s heirs. Her paternal and material heirs do not inherit, but the distant relations of her husband would inherit as per the husband’s heirs.

The case for change

The Hindu Succession Act, 1956 was enacted when, in the structure of the Hindu society, women hardly went out to work. There has been a vast change in the social scene in the past few years and women have made progress in all spheres. The consequence is that women are owning property earned by their own skill. These situations were not foreseen by the legislators.

If that is so, what is the impact of these socio-economic changes? Do they warrant any change in the law of succession in relation to the property of a female Hindu dying intestate? What is the fallout of a gradual disintegration of the joint Hindu family and the emergence of nuclear families as a unit of society over the years in the context of law of succession governing the issue at hand?

A fundamental tenet of the law of succession has been the proximity of relation in which a Successor stands to the person who originally held the property that may be the subject matter of inheritance in a given case. The fact that women have been given the right to inherit from her parental side also assumes relevance in the present context. These developments and changes lead to competing arguments and approaches that may be taken in re-defining the law of succession in case of a female Hindu dying intestate. Thus, three alternative options emerge for consideration, namely:

1. Self-acquired property of a female Hindu dying intestate should devolve first upon her heirs from the natal family.

2. Self-acquired property of a female Hindu dying intestate should devolve equally upon the heirs of her husband and the heirs from her natal family.

3. Self-acquired property of a female Hindu dying intestate should devolve first upon the heirs of her husband.

The third option may be taken first as this can be disposed of summarily. The option essentially means continuation of the status quo. We have seen earlier that socio-economic changes warrant corresponding changes in the law as well.

We may now take up the first option. The protagonists of this approach contend that the general order of succession reflects a gender bias. It will be relevant to refer to a passage in Pradhan Saxena – Succession Laws and Gender Justice in Re-defining Family Law in India by Archana Parasar, Amit Dhanda, New Delhi.

The supporters of the said approach contend that the joint family system has slowly eroded and that an increasing number of nuclear and semi-nuclear families have replaced the traditional Mitakshara Hindu joint family system. Women are also becoming more economically independent. With the growth of the nuclear family, a married woman’s dependency on her natal family and continued closeness to it is much greater today even if it was not so earlier. Most married women would prefer that their parents should be the more preferred heirs to inherit her property if her children and husband are not alive. She would also prefer that her sister and brother have a better right to inherit her property than her brother-in-law and sister-in-law.

Accordingly, it is urged that Section 15(1) should be modified to ensure that the general order of succession does not place a woman’s husband’s heirs above those who belong to her natal family like her father and mother and thereafter, her brother and sister. It is contended that when a man dies intestate, his wife’s relatives do not even figure in the order of succession despite the manner in which he may have acquired the property. In view of this, parity is sought in the case of a female by applying the same rules as applicable to male’s property.

Accordingly, it is suggested that it would be better to amend Section 15(1) to specify the general rules of devolution, which will apply not only to self-acquired property by a woman, but also to other property acquired through her family, gifts, etc. The only proviso which would then be needed would be the property that a woman acquires from her husband’s family.

The second option in this regard is that the property of a female Hindu dying intestate devolves upon the heirs depending upon the source from which, the said property was acquired by her, the self-acquired property of such female be simultaneously inherited by her heirs both from the husband family as well as the natal family in equal share. The fact remains that in spite of her closeness to and dependence on her natal family, her relations with her husband’s family are not separated and uprooted in entirety. She continues to be a member of her husband’s family, getting support from it in all walks of life. One cannot afford to ignore the ground realities in this regard. The social ethos and the mores of our patriarchal system demand that the existing system should not be totally reversed as claimed by the protagonists of the first option. Lest, there may be social and family tensions which may not be in the overall interest of the family as a whole and as such, ought to be avoided. In any case, it is open to the female Hindu to bequeath her property the way she likes by executing a Will.

Conclusions

In the present scenario, when amendments are made to the effect that women have been entitled to inherit property from her parental side as well as from husband’s side, it will be quite justified if equal right is given to her parental heirs along with her husband’s heirs to inherit her property.

It is, therefore, proposed that in order to bring about a balance, Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause ‘a’ of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side.

If this amendment is brought about, the effect will be as under:

A married Hindu female dies intestate leaving self-acquired property at the time of her death, the only surviving relatives being her mother-in-law (L) and her mother (M).

Pre-Amendment

As per the present law, her property would devolve entirely on ‘L’ and ‘M’ will not get anything from her property.

Post Amendment

By the proposed amendment, her mother-in-law and mother should equally inherit her self-acquired property.

A married Hindu female dies intestate leaving self-acquired property and she has no heirs as per Clause ‘a’ of the Schedule, the only surviving relatives are her husband’s brother and sister (BL & SL) and her own brother and sister (B&S).

Pre-Amendment

As per the present law, her property would normally devolve upon ‘BL’ and ‘SL’. ‘B’ and ‘S’ do not inherit anything from her in this property.

Post Amendment

By the proposed amendment, her own brother and sister should equally inherit along with her brother-in-law and sister-in-law.

The above amendment, suggested by me as Chairman of 18 {+t} {+h} Law Commission as early as in June 2008 in the public interest, is still pending with the Union Law Ministry.

(The writer is a former Judge of the Supreme Court of India and former Chairman, Law Commission of India. His email id is jusarlakshmanan@ gmail.com)

Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause ‘a’ of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side.