From Chief Minister to Chief Censor

From Chief Minister to Chief Censor

From Chief Minister to Chief Censor

A G NOORANI IN THE HINDU

Mamata Banerjee‘s edict on selection of newspapers is a violation of the citizens’ right to know and is an insult to libraries.

Around 1967, Warren Unna of The Washington Post asked Shiv Sena boss Bal Thackeray whether he read any books. He received a stunning reply: “I don’t want to mix my thinking with that of others”. The same arrogance, bred by insecurity, explains the order of March 14 made by the West Bengal government headed by Mamata Banerjee: “In public interest the government will not buy newspapers published or purported to be published by any political party, either national or regional, as a measure to develop free thinking among the readers”. The affinities between the two leaders are striking — populism and intolerance of dissent.

However, Mr. Thackeray’s preference concerned him alone. Mamata’s affects 2,463 government-aided libraries, 12 government libraries, 7 government sponsored ones and the State Central Library. All English language dailies were barred. Initially, a mere eight survived — Sangbad Pratidin, Sakalbela, Dainik Statesman, Ekdin, and Khabar 365 Din in Bengali; Sanmarg (Hindi) and Akhbar-e-Mashriq and Azad Hind (Urdu).

Two of the Bengali dailies are headed by two Trinamool Congress MPs of the Rajya Sabha. The Hindi and an Urdu daily are headed by Rajya Sabha MPs of the same party. Sangbad Pratidin, for example, is owned by Srinjoy Bose, a party MP. Its associate editor Kunal Ghosh was elected recently to the Rajya Sabha on the Trinamool ticket to give the owner company. After an uproar, five more papers were added on March 28; namely, Himalaya Darpan (Nepali), Sarsagar (Santhali periodical), The Times of India, and two others.

‘First instance’

There is another aspect, besides. The right to select papers belongs to the management of each library depending on the demand among the readers in that particular area. A central edict is an insult to them. Ms Banerjee’s order also flagrantly violates the citizens’ right to know. It is not for any Minister to prescribe a select bibliography to the Indian citizen. An official acknowledged on March 28: “This is the first instance of such a circular. The management boards of libraries have so far been the final authority on deciding which newspapers and periodicals to offer, on the basis of readers’ demands”. Now the readers are asked to read what Kolkata deems fit for their minds; “in public interest”, of course.

Arbitrary orders are invariably defended by absurd and contradictory explanations. On March 29, Mamata Banerjee and her Sancho Panza, Abdul Karim, Mass Education and Library Services Minister, explained: “We will promote local and small newspapers”. Some dailies on her approved list will not be flattered by this decision apart from the impropriety of State funding of the press.

There is a judicial ruling directly on point by a judge of eminence, Lord Justice Watkins, in the Queen’s Bench Division on November 5, 1986 (R. vs. Ealing Borough Council, ex. p. Times Newspapers Ltd. (1987) 85 L.G.R. 316). He quashed decisions by some borough councils in the U.K. to ban from public libraries within their areas newspapers and periodicals published by Times Newspapers and News Group Newspapers for the duration of an industrial dispute between them and their employees. This was done as a gesture of support to the employees. The court ruled that the authorities had taken into account an irrelevant factor and abused their powers as library authorities under the Public Libraries and Museums Act, 1964. In India, the Constitution itself will render such an act invalid as being an abuse of state power.

The petitioners, represented by Anthony Lester, Q.C., relied on Section 7 of the Public Libraries and Museums Act, 1964, which reads thus: “(1) It shall be the duty of every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof; (2) In fulfilling its duty under the preceding subsection, a library authority shall in particular have regard to the desirability — (a) of securing … that facilities are available for the borrowing of, of reference to, books and other printed materials, sufficient in number, range and quality to meet the general requirements and any special requirements of both adults and children …”

The abuse of power was blatant. The councils had but one purpose, namely to punish Rupert Murdoch for his stand in the industrial dispute. The ban was clearly for a purpose ulterior to Section 7. The violation of Section 7 was deliberate and wilful.

India’s written Constitution repairs the omission of any such statute. As H.M. Seervai pointed out in his work Constitutional Law of India, Article 294 vests the assets and properties in the Union or the State Governments, respectively, for the purpose of the Union or the State, in short, for a public purpose.

The U.S. Supreme Court ruled in 1884 that “the United States does not and cannot hold property, as a monarch may, for private or personal purposes. All the property and revenues of the United States must be held and applied, as all taxes, duties, imposts and excises must be laid and collected, to pay the debts and provide for the common defence and general welfare of the United States” (Van Brocklin vs Anderson; (1884-85 U.S. 117 U*S.151 at 158). Arbitrary expenditure unrelated to public purpose also violates the fundamental right to equality (Art. 14).

Landmark ruling

The Supreme Court of India’s landmark ruling in the International Airport Authorities Case in 1979 opened another avenue of challenge. Justice P.N. Bhagwati held: “The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largesse and it cannot act arbitrarily. It does not stand in the same position as a private individual…

“It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which are not arbitrary, irrational or irrelevant.”

These tests render the order of March 14 a nullity on the very face of it. The Courts can strike it down suo moto or on the petition of any citizen.

They will render high service if they did so. For, it will provide a speedy and effective cure to a mindset which is completely out of sync with constitutional values and curbs. Ads have been stopped to “small” papers which depended on them for sheer survival. On Fools’ Day, it was disclosed that the list of Banga Bibhushan awardees, who received Rs. 2 lakh each, included artistes, poets and writers who had campaigned for the Trinamool. Didi looks after her own, albeit at public expense. An Urdu saying casts her in a different light — “Halvai ki dukan par nanaji ki fateha (Prayers for the soul of grandpa at the sweet maker’s shop, at his cost).

From Chief Minister to Chief Censor

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Hospital deaths & F1 fuel tale of ‘Two Indias’

School in Andhra Pradesh

Image by ILRI via Flickr

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Recent events confirm the western world’s view that India is a country of contradictions. Foreigners who hold this view and have come to witness India record its name in the international Formula One race calendar must have felt vindicated.

How else can one explain the country breaking barriers in the field of science and technology, medical research and yet be counting the abnormally high deaths reported from hospitals in West Bengal and Uttar Pradesh and the government’s inability to reduce the high incidence of suicide among farmers in Maharashtra, Karnataka and Andhra Pradesh. The purpose of research in the field of medical science is to give the right to life the deserved meaning by finding ways and means to fight diseases. If a government is duty-bound to encourage such research, it is also constitutionally obliged to provide proper health infrastructure, including adequate number of doctors, so that people do not fall victim to any ailment.

If India has marched into the 21st century with a string of successes in scientific developments, how does one explain the death of 17 newborns in the last few days in Kolkata’s Burdwan Medical College Hospital? Who will compensate the parents for their loss? Surprisingly, the Mamata Banerjee government has already given a clean chit to the hospital by terming it as natural deaths. In eastern UP, nearly 500 people, mostly children, have died of encephalitis in the last four months. In BRD Medical College Hospital, three patients fought for space on each bed. Unable to take the load, the X-ray machine, ventilators and other equipment malfunctioned. Can patients and relatives of those who succumbed to the disease claim compensation from the government for poor health infrastructure?

The Supreme Court has consistently held that it is obligatory on the part of the government to provide adequate medical services to citizens. It had categorically held in State of Haryana vs Smt Santra [2000 (5) SCC 182] that the government’s health service officials were not spared from liability of paying damages to patients and their relatives for medical negligence. The healthcare system in its true sense has not reached the rural hinterland. Despite the much publicised National Rural Health Mission (NRHM), there are only 23,000 primary health centres in rural areas, each with six beds catering to a population of 20,000-30,000. Is this infrastructure enough to provide free basic healthcare? Can a villager, who is not poor if he spends Rs 32 on his food daily, afford to go to a private hospital which has expertise in fleecing patients? Can a villager ever dare to complain against the absence of doctors, support staff or unavailability of medicines in these PHCs? The SC in Spring Meadows Hospital vs Harjol Ahluwalia [JT 1998 (2) SC 620] said, “The relationship between doctor and patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is therefore the function of medical ethics to ensure that superiority of the doctor is not abused in any manner.”

Caught in the quagmire of inadequate health infrastructure and costly treatment in private hospitals, it is little wonder that quacks have a field day in rural India. There is a mushrooming of private medical colleges but none of the doctors who pass out would like to practise in rural areas, for villagers can never pay the fees he would demand to meet the expenses he incurred in getting an MBBS degree. We must have Formula One races in India. But is it not equally or more important for the government or the private sector to spend an equal amount to have high-class health infrastructure to cater to the rural poor?

http://timesofindia.indiatimes.com/india/Hospital-deaths-F1-fuel-tale-of-Two-Indias/articleshow/10548701.cms

Celebration of 150 Years of Calcutta High Court

Formally established in 1862, High Court at Ca...

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Following is the text of the speech of Dr. M. Veerappa Moily, Minister of Law & Justice on the occasion of the celebration of 150 years of Calcutta High Court:

“The High Court at Calcutta, formerly known as the High Court of Judicature at Fort William was brought into existence by the Letters Patent dated 14th May, 1862 issued under the High Court’s Act, 1861 and was formally opened on 1st July, 1862. The jurisdiction and powers of the High Court were to be defined by the Letters Patent. The existence of the Calcutta High Court is important to us as it was the first High Court and one of the three Chartered High Courts to be set up in India, along with the High Courts of Bombay and Madras

Sir Barnes Peacock was the first Chief Justice of the Calcutta High Court in 1862. Subsequently, Justice Shri Sumboo Nath Pandit was appointed as the first Indian to assume office of the High Court on 2nd February, 1863. He was followed by other legal luminaries such as Justice Shri Dwarka Nath Mitter, Justice Shri Ramesh Chandra Mitter, Justice Sir Chunder Madhab Ghosh, Justice Sir Gooroodas Banerji, Justice Sir Ashutosh Mookerjee. Justice Shri P.B. Chakravartti was the first Indian to become a permanent Chief Justice of the Calcutta High Court.

The High Court started with strength of 13 Judges and by the year 1955, its strength raised to 20 Judges. In the year 1958, the strength was fixed at 24 which was increased to 32 in 1966, 39 in 1969 and 41 in 1974. Till 1994, the strength of the High Court remained 46 when in 1993, the Supreme Court directed that the Judge strength of every High Court should be reviewed periodically with reference to the felt-need for disposal of cases, taking into account the backlog and expected future filing. Accordingly, the Judge strength of the High Courts, including the Calcutta High Court is being reviewed every three years. In 1995 the Judge strength of the Calcutta High Court was fixed at 48 and after review in 1999 it increased to 50 Judges. As per the latest review undertaken in 2007, the Judge strength of the Calcutta High Court has been revised to 58 Judges.

The Union Government is keen on the reduction in the pendency in the High Courts and has, therefore, launched a campaign from today to reduce pendency in the High Courts. One of the measures in reduction of the pendency is to have as many Judges in position as possible. Calcutta High Court has, against the sanctioned strength of 58, only 46 Judges in position. Though the Chief Justice has recommended names of 7 persons they are pending with the Central Government for want of comments of the State Government. I would urge upon the State Government to consider the recommendation made by the Chief Justice and send their comments at the earliest so that the vacancies could be filled up during the campaign period itself, thereby helping in disposal of more number of pending cases.

I am told that the High Court building is an exact replica of the Stand Haus in Ypres, Belgium. It is also recorded that when the original Stand Haus burnt down, a blue print of Granville’s Calcutta High Court had to be consulted before rebuilding it. The neo-Gothic High Court building was constructed in 1872, ten years after the establishment of the court itself. Government of India feels that unless the infrastructure is perfect, it is not possible for the High Courts to function smoothly. The 13th Finance Commission has awarded Rs. 5000 Crores to improve the justice delivery system in the country during the period of 5 years starting 2010-11. A sum of Rs. 19.70 Crores has been set aside out of this allocation for renovation of the Calcutta High Court Building, this being a heritage building. Further to this, the Union Government has, under the Centrally Sponsored Scheme, released a sum of Rs. 425.26 lakhs to West Bengal Government for developing infrastructural facilities for the judiciary.

The Government in the Centre is also keen on bringing the justice to the doorsteps of the masses for which the Gram Nayayalaya Act, 2008 has been enacted which has come in force w.e.f 2nd October, 2009. Under the Act, assistance is provided to the States towards (i) establishing the Gram Nyayalayas @ Rs. 18 lakh per Gram Nyayalaya and (ii) meeting recurring costs involved in operating these Gram Nyayalayas @ Rs. 3.20 lakhs per annum per Gram Nyayalaya for the first three years. I would request the Government of West Bengal to take steps for establishment of Gram Nyayalayas. I would like to mention here that we have received representations from some of the States that the grant being provided for the Gram Nyayalayas is not adequate. We are working on these representations also for increasing the grants from establishment of the Gram Nyayalayas and will make an announcement shortly in this regard.

In our pursuit to bring justice to the people of West Bengal within their reach, the Central Cabinet had taken a decision in June, 2006 for setting up of a Bench of the Calcutta High Court at Jalpaiguri. The infractural facilities for setting up of the Bench need to be provided by the State Government. We have been reminding the West Bengal Government in this regard. I would request them to pay attention to this project and provide infrastructural facilities at Jalpaiguri to the satisfaction of the Chief Justice which will go a long way in mitigating the miseries of the litigants.

A Mission Mode Programme was launched on 26th January, 2010 titled “National Mission for Delivery of Justice and Legal Reforms for the Under Trials” with the aim to reduce the number of under-trial cases and to ease congestion in jails. This programme was undertaken for considering the cases of 2/3rd of the undertrials estimated to be about 3 lakhs in January, 2010, who were languishing in jails. I am happy to announce that the results of this drive was extremely successful with cases of over 7 lakh prisoners having being decided by the end of May, 2011 of which over 1.72 lakhs were from West Bengal. I hope this must have brought relief to as many families also.

I am happy that the Calcutta High Court Bar Association is taking active part in the activities of the Calcutta High Court. I hope they would continue to work for the betterment of the society by getting them early justice through Courts which would also help in reduction of the pendency in the Courts for which a campaign has been launched today. On the occasion of the 150th year of the Calcutta High Court, I would like to convey my sincere thanks to the Calcutta Bar Association for organising this function.”

The tortured bill

PRATAP BHANU MEHTA IN THE INDIAN EXPRESS

Some legislative acts do not simply signal the credibility of the state; they define the measure of civilisation itself. On any measure, the Indian state’s record on custodial torture is an indictment of its democratic credentials.

India has amongst the highest rates of custodial deaths amongst democracies. There is no consistent database on this. But according to the National Human Rights Commission data, more than 17,000 people have died in custody since the mid-’90s; in Lok Sabha, the government admitted to more than 1,000 custodial deaths in 2008-2009 alone. There is virtually no systematic record of torture that does not lead to death; nor is torture against children separately recorded.

Despite Supreme Court guidelines in D.K. Basu vs State of West Bengal on monitoring custodial deaths, the number of cases is increasing. The NHRC has proved to be a very ineffective tool to combat custodial deaths. The phenomenon of custodial deaths cuts across party lines. In absolute numbers, UP and Bihar are the worst offenders, but the record of Congress-led states, like Maharashtra and Andhra Pradesh, is also abysmal. India signed the United Nations Convention Against Torture in 1997. But it is one of the few democracies that has not ratified the convention, despite more than 140 countries having done so. What a measure of our normative backwardness.

But the use of torture is not just a normative blight; it is practically self-defeating as well. We have no idea how much disenchantment and distance the practice of torture puts between the police force and the citizens, particularly vulnerable groups in society. So potential

allies of the state become, at best, sullenly indifferent to it; at worst, they become actively hostile. And the use of torture does not indicate the strength of an institution; it indicates its weakness. Impunity degrades the credibility of the institution in whose name it is carried out.

It is in this context that the Prevention of Torture Bill needs serious scrutiny. The form in which the bill passed Lok Sabha is, to put it mildly, something of a joke. The bill, in its present form, is being dubbed by commentators as the “sanction of torture bill”. As the excellent brief on this bill by my colleagues at PRS Legislative Research has pointed out, it is, in terms of its own objectives, deeply deficient in several respects. (On Tuesday, Rajya Sabha referred the bill to a select committee.)

First of all, there is controversy over the definition of torture in this bill. It is too narrow and does not include several acts already included in the IPC. For instance, the current bill gives no protection against torture or threat of torture being inflicted on some other person like a relative, with a view to obtaining information from the interested party. It does not comply with the definition of torture in the UN convention on torture that India seeks to ratify. It limits torture only to “grievous hurt”, and danger to “life, limb or mental or physical health”. The UN definition by contrast, adopted worldwide, includes any “severe pain or suffering, whether physical or mental”. But the degree to which the Indian law deviates from the UN convention is a matter of some debate. After all, even the UN convention, according to some interpretations, is limited to the idea that extreme practices count as torture. An article of the convention obligates parties to prevent in territory under their jurisdiction “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to acts of torture”.

While the UN convention explicitly criminalises torture, it does not explicitly criminalise other forms of degrading treatment. In the UN convention not all forms of cruel or inhuman treatment amount to torture. This is important to understand. Underlying the watered down provisions in our bill seems to be the fear that an anti-torture bill should not lead to misuse against public officials. This fear is hugely exaggerated.

Even under existing law the prosecution rate is less than two per cent of all those who go to trial. It is therefore important to clean up the definition of torture. There is perhaps one thing we can learn from our colonial masters. The IPC is an old code with problems arising from its 19th century provenance. But one of its advantages as a piece of drafting is that it is

replete with examples that leave no doubt about what the legislation intends; and it also provides a useful aid to thinking analogically about hard cases. Our legislation by contrast is perfunctory and vague, and will therefore not provide an effective moral compass that signals what we wish to prohibit.

Second, the redress mechanisms are even weaker in the new bill. Requirements such as government sanction before prosecuting any public servant (again a dilution of existing law), a six month statute of limitation, and the absence of any independent investigative agency to probe into torture allegations, and the lack of any compensation mechanisms make the bill relatively toothless. They are almost an incitement to impunity.

There is perhaps one practice that might enhance the quality of all legislation in India. Just like many bills include “finance” supplement assessing the possible cost to government, all legislation must come with an assessment of the administrative requirements of each bill. This assessment would analyse the measures that have to be put into place for a bill to realise its objectives. This will do two things. First, it will partially address a crippling infirmity of all our legislation. There is simply no analysis of whether the state has the capacity to carry out the mandate of the legislation: the number of personnel required, the administrative structures that need to be in place and so forth. Parliament simply passes the bills and dumps them on to hapless state personnel who increasingly resent more responsibility being placed on them.

Second, it will give our legislation greater credibility. It will send a powerful signal that the state is not interested in simply being seen to pass legislation. It is also determined that that objectives of the bill be realised.

The Prevention of Torture Bill should have sent a credible signal that India is serious about tackling its record on custodial deaths and torture. And this signal needs to be sent, not just to the international community, for whose benefit this bill has been drafted, but to elicit the allegiance of our own citizens who fear the state more than they love it. But instead the bill is an exercise in bad faith, treating the issue of torture with a shocking degree of callousness.

The writer is president, Centre for Policy Research, Delhi

express@expressindia.com

http://www.indianexpress.com/news/the-tortured-bill/675580/0