Archive | December 2012

House Panel: Legal Aid Or Eyewash ! – By Mukesh Jhangiani

                                                                                                                           June 22, 2006

House Panel: Legal Aid Or Eyewash !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – India’s poor litigants see legal aid provided to them by an authority set up eleven years ago as ”mere eyewash,” a parliamentary panel has reported.

”Poor litigants feel that legal aid being provided to them is mere eyewash,” according to the Parliamentary Standing Committee on Personnel, Public Grievances and Law and Justice.

E M Sudarsana Natchiappan (Photo: NoCorruption)

The National Legal Services Authority was set up in 1995 under the Legal Services Authorities Act 1987 to provide ”free and competent” legal services to the needy.

The views of the Committee headed by EM Sudarsana Natchiappan are contained in its latest Report on the Law and Justice Ministry’s 2006-07 Demands for Grants.

The Committee said the programme lacked proper planning and suffered from paucity of funds and failure at the level of states to utilise even the grants made.

It said, ”the actual benefit of this scheme is not gaining access to poor litigants” and the programme is ”confined to high profile areas or capital cities only.”

The NALSA’s goal, according to the Committee, was to ensure that no Indian citizen is denied opportunity to secure justice because of economic or other disabilities.

Experts call it a tall order considering the high litigation costs– unbridled lawyers’ fees and protracted court processes– which a vast many Indians find hard to afford.

The NALSA’S budget to achieve it all in 2004-05, for instance, was Rs 5.98 crores– raised in 2005-06 to Rs ten crores and sought to be maintained thereat this year.

To be eligible for legal aid, the annual income limit fixed by the central government for cases before the Supreme Court is Rs 50,000. Fourteen states have to catch up with even that.

Over the past decade, the Authority claims to have aided 8.25 million individuals, besides holding 4,86,000 Lok Adalats or conciliation courts nationwide and settling 18.3 million cases.

But critics say that tells little about the sort of cases in which the Authority helped individuals, the quality of legal aid or the outcome.

Nor does it tell the plight of citizens who are neither eligible for legal aid nor can afford legal recourse on their own– with no limits enforced on lawyers’ fees or duration of proceedings.

As in ordinary cases, in aided cases, too, the quality of lawyering is a key issue, only perhaps more so given the ‘meagre’ fees NALSA advocates supposedly get, critics say.

The Committee noted that counsels engaged for the poor under the legal aid programme ”are paid meagerly” and ”good and reputed lawyers do not come forward to take up the cases. Even Senior Advocates do not take up such cases.”

”As a result,” the Committee said, ”the poor litigants feel that legal aid being provided to them is mere eyewash.”

The Committee recommended ”reasonably” enhancing the fee structure– and standardising it nationwide– so as to draw experienced and competent lawyers to legal aid.

The Committee was ”given to understand that the government has been providing adequate funds to NALSA from year to year. However, there has not been total utilisation of the allocated grants.”

Some years ago, the Committee had suggested ”hundred percent central funding for implementing NALSA and also to ensure that the central grants released to the State Governments are utilised fully.”

But the government says NALSA has yet to submit a consolidated scheme for its consideration covering all its plans and programmes ”for formulating a Centrally Sponsored Scheme and seeking due approval.”

In what it calls a ‘vision document,’ NALSA has listed sections of Indian population it hopes to empower through legal literacy– knowledge of the law and the confidence to use this knowledge.

They include children, the elderly, workers, women, victims of mental or other disabilities, floods, tsunamis, drought, insurgency, Devadasi or other trafficking and those stigmatised by such conditions as Acquired immunodeficiency syndrome.

The Committee took note of it but said ”certain grey areas need to be addressed by the Ministry.

”One such problem relates to lack of proper planning. Moreover, non-utilisation of grants by the States Legal Services Authorities is another area of concern.”

It asked the Ministry to ”effectively monitor” utilisation of funds and implementation of NALSA’s schemes and programmes.

”Constraints of funds should not come in the way of successful implementation of the scheme,” it stressed.

Experts discount the value of sheer legal literacy unless it is accompanied by reforms that make adjudication more responsive to the litigants’ needs.

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Defence Bribery Affair Underscores Need For Appointing Lok Pal – By Mukesh Jhangiani

                                                                                                                               March 18, 2001

Defence Bribery Affair Underscores Need For Appointing Lok Pal

By Mukesh Jhangiani
United News of India

Indian Prime Minister Morarji Desai in New Del...

Morarji Desai who suggested in 1966 creating an ombudsman or Lok Pal became India’s first non-Congress Prime Minister 1977-79 (Photo: Wikipedia)

New Delhi (UNI) – The videotaped defence bribery affair has underscored a long-recognised need over which the authorities have vacillated while scandal after scandal has rocked the nation’s political life– appointing a Lok Pal, India’s much-heralded anti-corrupt ombudsman conceived 35 years ago but still nowhere in sight.

Last heard of, the Lok Pal bill was the subject of second thoughts: whether or not Members of Parliament be placed under its purview. This, notwithstanding the fact that a broad cross-section of MPs themselves has voiced support for that and several other measures aimed at promoting accountability.

The MPs’ support is reflected in responses already in to an appeal sent out some weeks ago by Lok Sevak Sangh, a Non-Governmental Organisation, and its sister NGO, Transparency-International India. Both groups have said they will embark on a Satyagraha if the Lok Pal bill is not introduced in this session of Parliament.

”If the bill is not introduced during the session ending on March 23 or if MPs are excluded from its jurisdiction, we shall resume the postponed Satyagraha on April 16, when Parliament reassembles after recess to continue the budget session,” LSS-TII Chairman Shambu Dutta Sharma told UNI.

The groups deferred Satyagraha last November after announcement of plans to introduce the bill during the winter session.

For decades, the authorities have let the grass grow under their feet while corruption has gone on unbridled– scam after scam bursting forth on the nation’s political stage, eroding public values, chipping away at public morale and cynicising public mind.

The concept of Lok Pal– inspired by Sweden’s Ombudsman– grew out of an interim report on the Problem of Redressal of Citizens Grievances submitted in 1966 by the Administrative Reforms Commission headed by Morarji Desai. The very thought of someone to whom an Indian citizen could turn with a complaint of corruption or administrative excesses against the mighty of the land was a whiff of fresh air.

Two years later, the Lok Pal and the Lokayuktas Bill, 1968 was introduced in the 4th Lok Sabha, when late Mrs Indira Gandhi was Prime Minister. It was considered by a joint committee of the two Houses of Parliament and passed by the Lok Sabha in 1969. It was pending in the Rajya Sabha when the Lok Sabha was dissolved. The bill lapsed.

Over the years, with political and public life getting increasingly mired in scandalous goings-on and some governments at the Centre or in States even losing office over issues involving integrity– Bofors, Hawala, Fodder, Urea, Telecom, to name just a few controversies– the need for Lok Pal and other reforms has got more and more acute.

But resistance to the bill appears manifest in the fact that even after being tabled six more times– in 1971, 1977, 1985, 1989, 1996 and 1998, the last time by Prime Minister Atal Bihari Vajpayee– it has never again been put to vote.

English: People taking part in protests in sup...

Protesters demanding Lokpal (Photo: Wikipedia)

The concern was echoed by the Prime Minister while opening a conference of Lokayuktas or State Ombudsmen some weeks ago. As Mr Vajpayee put it, rampant corruption over the past few decades and the failure to catch and punish the corrupt has bred contempt for the law and led to widespread cynicism among the people, causing a decline in moral values in Indian society.

“Experience has shown that our efforts to strengthen probity in civil service and the polity cannot yield desired results without extending the norms of accountability to the judiciary. The inability of our judicial system to deliver speedy justice has itself become the source of much injustice. It has also eroded the credibility of our judiciary in the eyes of the public,” Mr Vajpayee told delegates.

Noting that corruption was detrimental to development, he announced that a Group of Ministers was putting together a new draft of the Lok pal Bill, which “will be introduced in Parliament soon.”

On his part, Mr Vajpayee volunteered to submit to its jurisdiction by vesting the Lok Pal ”with adequate powers to deal with charges of corruption against anyone, including the Prime Minister.”

Authorities acknowledge that even the implementation of Lokayuktas in states has not been satisfactory. Lokayuktas exist in barely 15 states and do not have uniform jurisdiction over Chief Ministers or Members of State Legislatures. Nor is the system entirely effective.

For instance, between 1986 and 2000, the Karnataka Lokayukta ordered investigation in 2,840 cases, of which 1,677 were charge-sheeted but only six percent cases ended in conviction. The bulk– 1,118– were pending trial.

Originally, the Lok Pal bill was to place under scrutiny the conduct of all public functionaries and political leaders, including the Prime Minister, the Members of the Cabinet, as well as all members of both Rajya Sabha and Lok Sabha. It would have MPs and members of their immediate family declare personal assets each year they remain in office.

The bill was scheduled to be introduced for the eighth time in November 2000, but the move appears to have bogged down because of demands to leave MPs out of its sway.

An argument advanced for excluding MPs from its ambit is that Lok Pal should only mind the affairs of those wielding government and ministerial office who take decisions affecting citizens and therefore have the potential to abuse it for personal gain.

But activists for MPs’ inclusion point out that legislators exercise enormous influence in shaping laws, policy and decisions which is fundamentally important and has potential for abuse.

“MPs are also empowered to take decisions such as spending constituency development funds,” the LSS-TII spokesman said. “A few MPs have been known to accept bribes and misuse government property and ever increasing facilities and perquisites for personal benefit.”

A well known example is the acquittal of four Jharkhand Mukti Morcha MPs who allegedly voted for the Narasimha Rao government in return for monetary consideration. The magic words that got them off were written into Article 105 of the Indian Constitution: “no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof… ”

The episode has occasioned calls to change such provisions. Law Commission Chairman Justice B P Jeevan Reddy recently sought to kick off a public debate by suggesting that bribe-taking legislators should be liable for prosecution. He suggested including a new clause requiring that “nothing… should bar the prosecution of a Member of Parliament under the Prevention of Corruption Act etc, if they take money for voting in Parliament”.

Another argument advanced by those seeking to exclude MPs from Lok Pal’s purview has been that MPs are accountable to Parliamentary Ethics Committees, and do not need additional supervision.

But in its appeal to MPs, the LSS-TII pointed out that even bipartisan ethics committees in the United States “have not really been effective in controlling the wrongful conduct of the Senators and Representatives there. It is not likely to do better in India. It will be a case of you scratch my back and I will scratch yours.”

The letter pointed out that “the argument that the MPs would not like their conduct to be adjudicated by any outside agency, is untenable… Nobody should seek to be a judge in his own cause.”

It cited the Rajya Sabha Ethics committee’s quietness when the national press and the Chief Election Commissioner in the last biennial election raised grievous doubts about some Rajya Sabha candidates trying to bribe the MLAs.

“So far as Lok Sabha Ethics Committee is concerned its Chairman and (former) Prime Minister Chandra Shekhar is facing proceeding re(garding) his large Bhondsi campus in a public interest petition filed by advocate Dr (B L) Wadhera.”

“We request that the Lok Pal legislation should not be delayed further on any ground whatsoever,” the LSS-TII said, adding that “thirty-three years are enough for our political leadership to put in place an effective Lok Pal.”

Appointing Lok Pal is one of seven measures the LSS has been stressing to further the cause of probity in public life. The others include enacting laws giving citizens access to information, plugging loopholes to discourage defections, requiring declaration of political parties’ assets and accounts audit, debarring corrupt and criminal citizens from contesting elections, speedy trial of erring politicians and forfeiture of illegally acquired property, most of which have been under legislative consideration for years, even decades.

The MPs who have stepped forward cutting across the party lines to support the measures include Leader of the Opposition in Rajya Sabha, Dr Manmohan Singh, and leading attorney and Congress leader, Kapil Sibal, as well as ruling Bharatiya Janata Party veterans such as B P Singhal, Kailash Joshi and Vijay Kumar Malhotra.

They also include Debabrata Biswas of All India Forward Bloc, Nagendranath Ojha of Communist party of India, Sunil Khan and Subodh Roy of Communist party of India (Marxist), Chandra Vijay Singh of Akhil Bharatiya Lok Tantrik Congress, Tarlochan Singh Tur of Shiromani Akali Dal, Ananda Mohan Biswas of Trinamool, Prof M Sankaralingam of Dravida Munnetra Kazhgaham, Peter Alphonse of Tamil Manila Congress, Ashok Mohol of Nationalist Congress Party, Arun Kumar and Mahendra Baitha of Janata Dal United, Prabhat Kumar Samantaray of Biju Janata Dal, Prof A Lakshmisagar of Janata Dal, Dr S Venugopal of Telugu Desam Party, Ram Prasad Singh of Rashtriya Janada Dal, Ravi Prakash Verma of Samajwadi Janata Party and S D Shariq of National Conference.

Independent Member S Roy Choudhary and nominated Members writer K S Duggal, journalist Kuldip Nayar and jurist Fali S Nariman, all noted in their respective fields, have also voiced their support.

One party from which no response has been received so far is Jharkhand Mukti Morcha.

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Crying Foul Over Violations, Secrecy In Games ! – By Mukesh Jhangiani

                                                                                                                 October 01, 2010
Crying Foul Over Violations, Secrecy In Games !

By Mukesh Jhangiani
United News of India

women work2

Women At Work For No Pay ?
(Photo: nocwg2010)

New Delhi (UNI) – Violations of law that hit thousands of workers and drove thousands out of homes as New Delhi readied for Commonwealth games have yet to be remedied, activists say.

”Commonwealth Games hai! hai!”– cries of woe– rent the air as members of an Anti Commonwealth Games Front took to the streets on Friday, barely days before the event.

Such ”gross violations of human rights against Delhi’s poor and marginalised groups” called for a boycott of the 71-nation event on ethical grounds, a meeting at Jantar Mantar was told.

The protest coincided with the arrival of the ‘Queen’s Baton’ they dubbed ”a historical symbol of oppression and colonisation.”

They spoke of 200,000 now homeless and 300,000 without livelihood, not to mention labour law violations at CWG sites, beggars shipped out or young women trafficked in from States for sex work.

”In the run-up to the Commonwealth Games,” the Front, a coalition of 25 groups, said, ”the city has seen the most blatant violation of human rights of the urban poor.”

Many vendors, cart-pullers, waste-pickers, head-loaders, balloon sellers, cobblers, food stalls and eateries have simply been put out of work, it said in a statement.

The groups included Peoples’ Union for Democratic Rights, Samajwadi Jan Parishad, Housing and Land Rights Network, Indo German Social Service Society, National Campaign on Dalit Human Rights and Beghar Mazdoor Sangharsh Samiti.

”The government has completely lost its sense of priorities,” it said, citing Rs 70,000-100,000 crore– US$ 15-21 billion– spent on hosting the 12-day extravaganza.

They compared it, for instance, to Rs 11,270 crore allocated for housing projects for economically weaker citizens under Indira Awas Yojna 2010-11 and Rajiv Gandhi Awas Yojana 2010-2011.

They said CWG decisions– from bidding for the event to reserving lanes for participants or a somersault on turning the village into a student hostel– were ”taken in secrecy,” against democratic norms.

English: CWG Opening Ceremony 2010

CWG 2010 Opening Ceremony (Photo: Wikipedia)

While CWG construction workers ought to have been paid wages in keeping with the international stature of the event, a spokesman for a signatory group said most were deprived of minimum wages even by Indian standards.

Workers at CWG construction sites have experienced some of the most widespread violation of human rights, spokesman Subhash Bhatnagar for Nirman Mazdoor Panchayat Sangam said.

Unskilled workers in Delhi are entitled to a minimum daily wage of Rs 203 but got only Rs 110-130, volunteers said.

Experts say laws provide for paltry fines at the end of litigation– itself slow– not jail terms which can deter violations.

According to PUDR, the State agencies flouting labour laws as principal employers in CWG-related construction range from Delhi Development Authority to Delhi University.

Calling CWG one of India’s biggest corruption scandals, the groups said instead of accounting for the financial irregularities, the government ”is focusing” on ”success of the Games under the garb of ‘national pride’.”

It questioned the idea of supporting ”a sporting event that is making a selected few richer.”

The protesters dismissed suggestions that hosting the CWG will improve India’s performance in sports as ”completely false.”

They said for many schools across India a playground was a distant dream for children and the plight of most athletes ”is dismal if not pathetic.”

A placard they held demanded ”schools, not stadiums.”

English: CWG Delhi 2010 OC Building

2010 CWG Organising Committee’s home (Photo: Wikipedia)

Noting that India has spent at least Rs 4,500 crore on renovating stadiums for the Games, it said ”this money could have been more wisely spent to improve facilities for sportspersons across the country.”

It said Delhi residents have been put through ”a lot of inconveniences” to host an event they were neither consulted about nor asked for– but ”will eventually pay for.”

Alluding to remarks made by Delhi Finance Minister A K Walia in March 2010, the groups said the Delhi Government has gone bankrupt because of ”wanton spending” in the name of the Games. ”The city has become much more expensive and taxes have increased.”

It demanded ”full accountability from all agencies and departments involved in the CWG, full public disclosure of funds, transparency of transactions, protection of human rights of Delhi’s citizens.”

It also demanded ”compensation for livelihoods lost, adequate rehabilitation of the displaced close to their places of work, a post-Games legacy plan and cost recovery plan, and prosecution of officials responsible for embezzlement and misappropriation of public funds.”

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Indian Hostages Running Short Of Water, Food: Captain’s Wife – By Mukesh Jhangiani

English: GULF OF ADEN (July 7, 2009) Coalition...

Gulf of Aden (Photo: Wikipedia)

                                                                                                                                    September 30, 2008

Indian Hostages Running Short Of Water, Food: Captain’s Wife

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – With 18 Indian seafarers reportedly running short of water and rations after their ship was seized by Somalian pirates 15 days ago, relatives and friends urged ‘immediate’ steps this evening to secure their release.

”Bring an end to the ordeal of these innocent seafarers,” Seema Goyal, wife of Captain Prabhat Goyal urged in a petition to Shipping, Road Transport and Highways Minister T R Baalu.
Chemical tanker Stolt Valor, a Japanese-owned ship flying the Hong Kong flag and manned by a crew of 22, was sailing from Houston, in the United States, to Bombay when it was hijacked in the Gulf of Aden on September 15.
The tanker was carrying phosphoric acid and lubricating oil for Indian end-users, including Indian Farmers Fertiliser Cooperative Limited at Kandla.
As many as 18 of the 22, including Captain Goyal, are Indian, one Russian, one Bangladeshi and two Filipinos.
The hijackers appeared to have originally demanded six million dollars but lowered the demand to 2.5 million dollars, Mrs Goyal told a meeting at the Indian Society of International Law.
She said Capt Goyal and crew members have been in touch with her from the ship’s bridge, presumably using a satellite phone.
”For last 18 days, these 22 sailors are living under the shadow of guns with constant threat to their lives, and look upon the government of India as their last hope.
”Yesterday, a crew member telephoned me and said they will be out of fresh water in a day or two, and rations, in another 3-4 days,” Mrs Goyal said.
”I do not understand what the delay is about,” Ms Goyal said after submitting a petition in the Shipping Minister’s office.
Under the Merchant Shipping Act 1958, the Director General of Shipping, who licenses recruiters of Indian seamen and officers, is also responsible for the welfare of Indian seamen, experts say.
The post has been vacant since the last incumbent, Kiran Dhingra, was transferred to the Ministry of Housing and Urban Poverty Alleviation 19 days ago.
The delegation of seafarers’ relatives and friends she led also met some Society officers, including secretary general Rahmatullah Khan and former treasurer Joginder Singh Gill.
She has also requested a meeting with United Progressive Alliance chairman Sonia Gandhi.
As many as 55 ships have been attacked off the coast of Somalia since January and 11 were still being held for ransom, published accounts indicate.
The International Maritime Bureau has issued an advisory urging ships to stay 250 Nautical Miles away from the Somali coast.
The ship was reportedly in a corridor made ”safe” by a coalition of US, British and French forces.
An official for the recruiting agent declined to comment on negotiations under way.
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Managers Told To Learn From Fall Of East India Co. – By Mukesh Jhangiani

                                                                                                 March 18, 2011

Managers Told To Learn From Fall Of East India Co.

East India House in Leadenhall Street was the ...

East India Company’s original headquarters on Leadenhall Street in London (Photo: Wikipedia)

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Indian business managers have been cautioned against the cancers of greed and corruption that had triggered the collapse of a forerunner of the modern corporation– East India Company.

The advice-cum-warning came from India’s top auditor at a convocation of Gurgaon-based Management Development Institute for 527 management students and researchers.

“What this country cannot risk is the deficit of ‘ethics’ in its corporates,” Comptroller and Auditor General Vinod Rai underscored, pointing out that “deficit in governance” does not apply “to government alone. It applies equally to the business community.
“No business can be sustainable in the long run and have a consistent growth trajectory, unless it is based on an edifice of credibility and integrity,” Mr Rai said.
The CAG’s remarks came last evening as a globalising India grapples with the need to encourage businesses on one hand and make them accountable to consumers, employees, investors and society, on the other.
Inept auditing, endless litigations, lax enforcement of laws marked by a virtual absence of any real punitive devices are among factors encouraging malpractices and driving up the cost of doing business.
The Auditor General who keeps track of irregularities in public spending recounted the instance of Satyam which, he said, symbolised a single word barrier to credibility !
Rai saw Satyam as the “one word” which “stood between our successful growth story and the credibility of our institutions.”
He recalled how “the story breaking in January 2009 created ripples in global economies about the quality of corporate governance, efficacy of regulatory bodies and probity in corporates.”
Rai’s 1500-odd-word convocation address did not dwell on the inadequacy of Indian regulation system exposed, critics say, as scam after scam involving business and other segments comes to light.
MDI Director V K Gupta, reached afterwards for comment, stressed the need for accountability, but did not see it happening right away.

East India Company (video game)

East India Company – now a video game (Photo: Wikipedia)

“Public opinion is going to play a role in India and the pressure will keep mounting unless the government takes heed,” said Prof Gupta, who teaches Human Resource and Management.
He said the Bihar election showed that what people want is development and clean administration, free of corruption.
Nevertheless, he said, “it may be another decade before accountability systems are put in place and function.”
The CAG noted businesses’ tendency to cut corners or take short cuts, but asserted that “any innovative enterprise which attempts to establish rapid growth with a lack of ethics is bound to fail in the long run.”
“Realise,” Mr Rai told new graduates, “that as managers and chief executives, you would be sitting in glass houses. Every action of yours would be carefully watched and recorded… it is essential for you to ensure that you will abjure unethical methods.
“The post reform period has witnessed a corporate culture of diluting or ignoring stringent ethical standards. It is often considered ethical as long as a corporate establishment, in its business practices, remains within legal confines to survive in business and beat the competition.
“This is misplaced corporate governance. Probity in business is as important a trait in an outstanding CEO as is to be articulate, positive, courageous, dynamic and professionally competent.
“You have to be a developer of talent and maintain cultural sensitivity. The culture to perform has to be deeply inculcated. Without meritocracy, you fall into the morass of nepotism and mediocrity.”
In this context, Mr Rai reminded students of the fate that befell the East India Company, “with which we are all familiar.”
Founded in 1600 and often believed to be the forerunner of the modern multinational, the company started as a humble trader in Asian spices and was soon managing Britain’s Indian empire.
“Today, there is no sign, not even a plaque in any building or location in London announcing the existence of the world’s one time most powerful corporation.
“What brought about the demise of this powerful company in an era which was otherwise promoting globalisation?
“The company’s legacy provides compelling lessons on how to ensure accountability and probity of today’s global business. The most fundamental challenge that all Institutions face is to ensure that employees promote the collective rather than their individual self interest.
“Private trading by its managers, became one of the cancers that gnawed at the company’s ethical fibre.
“Taking ‘presents’ to secure business became common place. These ‘presents’ influenced the quality and cost of the commodities traded. The cancer erupted into intrigue, corruption and speculation leading to its tragic decline and its non existence today.
“History has repeated itself with Barrings Bank, Bears Stearns, Lehman brothers, Fannie Mae and Freddie Mac – personal greed versus corporate interest. You need to deliberate on this and ensure that such temptations do not befall you.”
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AG Wanted Judges To Scream No! Instead Got Their Nod! – By Mukesh Jhangiani

                                                                                                                                                  May 12, 2004

AG Wanted Judges To Scream No! Instead, Got Their Nod!

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – A government lawyer, who persuaded some of India’s seniormost judges during emergency that they had no business to intervene even if policemen took innocent lives, suffered ”profound anguish,” a contemporary jurist has reported.

English: Picture Of Justice V.R.Krishna Iyer

Justice V R Krishna Iyer (Photo: Wikipedia)

According to former Supreme Court Judge V R Krishna Iyer, Attorney General Niren De had urged the ”extreme position” hoping to shock and rouse the judges ”to rage against that violent view.”
Four of the five Judges heard but ”did not furiously resist. I felt sad as a jurist but found success as Counsel,” was how De put it, Justice Iyer recalls in a new book titled ‘Leaves from My Personal Life.’
The four: then Chief Justice A N Ray and Justices M H Beg, Y V Chandrachud and P N Bhagwati. Justice Hans Raj Khanna was the sole dissenter and paid by being superseded by his junior, Justice Beg.
Experts say the episode raises questions about the country’s judicial system and establishment, and the real or potential havoc to which the society may be exposed in absence of accountability in administration, adjudication and courts.
As Justice Iyer sees it, the April 1976 Judgement ranks ”in disgrace with” an American Supreme Court pronouncement that Negroes were slaves to be owned, not humans who could own.
The so-called habeas corpus case– Additional District Magistrate, Jabalpur v Shivakant Shukla– arose out of appeals from eleven high courts which had held that, notwithstanding a presidential order under Article 359 of the constitution suspending the right to enforce fundamental rights, the higher courts could, in appropriate cases, entertain applications for habeas corpus.
In his argument, De focused on ‘liberty’ as provided in the Constitution, contending that the right to move a court having been  suspended, a detainee had no locus standi and a writ petition would necessarily have to be dismissed.
Justice Khanna pointedly demanded: ”Life is also mentioned in Article 21 and would Government argument extend to it also?” De replied, ‘Even if life was taken away illegally, courts are helpless.’
Justice Iyer says: ”This argument, by democratic standards, was unconscionably outrageous. Yes, but the judges were not outraged, save Khanna, the great dissenter. They merely listened, (unperturbed by) the prospect of monstrous mayhem on human rights and fundamental freedoms; and eventually upheld this shocking proposition in pronouncements at learned length.”
”Alas, the darkest hour of forensic downfall, except for the historic dissent of Justice Khanna, was when this disastrous jurisprudence marred our law reports,” writes Justice Iyer.
The judgement delivered on 28th April, 1976 is dubbed by the People’s Union for Civil Liberties ”the biggest blow to the Supreme Court– by the Supreme Court.”
The Supreme Court held that, as long as the presidential order was in force, the individual had no remedy against detention, even in cases where he could show that the detention was vitiated by mala fides or was ultra vires of the statute.
Although the judgement has not been overruled, its effect has been reduced substantially by a 1978 amendment to the constitution which made the rights to life and personal liberty– Article 21– non-suspendable during emergencies.

Hans Raj Khanna

Justice Hans Raj Khanna (Photo: Wikipedia)

Justice Iyer’s narrative underscores the importance of Judges never letting a lawyer or a litigant– no matter how mighty– sway them from the rule of law.
De’s confession came at a chance encounter shortly after the apex court bench held that under Emergency no person has any locus to move any writ petition for habeas corpus to challenge detention.
At a dinner attended by judges, writes Justice Iyer, De ”came up to me– I was sitting in a corner and sat to tell me something deeply sombre and pathetically confidential which he wanted to unburden and reveal to me to relieve his conscience.
”What was it about? You are a socially sensitive judge and can appreciate my profound anguish, he said. ‘What was the agony in my soul, which gave me sleepless nights? It was about my defense of the Emergency.
”I did not want a ghastly law which would banish judicial jurisdiction in the face of subjective executive violence. I thought of the strategy of shocking the judges into sanity, into rousing their revulsion, into reading down the deadly law, into claiming space for judicial invigilation as haven of human rights.
”So I urged the damned extreme position hoping that humanist jurisprudence would be the indignant robed reaction.
”So I pressed, against my heart but with the expectation of awakening the aghast protest of the Bench. If the police abused power the court would not sit and watch with cauterised conscience but would act in fiat justicia spirit– so, I thought, would be their response.
”I wanted the robes to rage against that violent view I propounded and come down on such Emergency inhumanity. But, to my surprise, barring Khanna, the other justices heard but did not furiously resist. I felt sad as a jurist but found success as Counsel.
”Sir, frankly I passed through mental stress which I now confide in you because your conscience would have rebelled.”
”The narration ended, the dinner was over. And Niren De passed away not long after.”
Additional Solicitor-General Fali Sam Nariman had resigned from his post in protest a day after Emergency was declared on June 25, 1975.
Justice Iyer records: ”Nariman, the admirable and conscionable advocate resigned his post as Solicitor General. But I believed the Attorney General’s confessional version.
”Then why did he not give up his office? Good men, gripped by grave crises, sometimes cave in, maybe,” offers Justice Iyer.

”Niren De was a serious, sound advocate who argued later for democracy and against gross misuse of Presidential Power of supersession of State autonomy, but failed.
”Anyway, the ADM Jabbalpur ruling ranks in disgrace with the Dred Scott case where the American Supreme Court pronounced that Negroes were slaves to be owned, not humans who could own.”
Justice Iyer cited the dissenting judgement of Justice James Richard Atkin on deciding between the citizens’ rights to know the basis of their detention in war time and the rights of the executive government in times of emergency to deprive citizens of their liberty without being held to account in the courts.
Justice Iyer says Justice Atkin ”has the last word in Liversidge v Sir John Anderson.”
Justice Atkin’s words: ”I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive.
”Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum…: “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.”
”In this country (England), amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.
”It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
”In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I,” a 17th century British monarch regarded by many members in Parliament as a despot.
Justice Iyer warns: ”Our freedoms are in peril if our courts suffer (from) pusillanimity or arrogance.”
UNI MJ MIR RAI1030

Use Norms – Not Discretion – To Punish Crime: ARC – By Mukesh Jhangiani

                                                                                                         July 8, 2007

Use Norms – Not Discretion – To Punish Crime: ARC

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Government experts have called for guidelines ”so that sentencing across the country for similar offences becomes broadly uniform.”

Inconsistency in punishments judges award is among issues figuring in the latest report of the 2nd Administrative Reforms Commission on Public Order.

English: An unfair administrator barnstar

Justice v Discretion – A matter of balance (Photo: Wikipedia)

”To effectively deter crime, penalties must not be discretionary,” Commission Chairman M Veerappa Moily told United News of India Special Correspondent Mukesh Jhangiani.

According to the findings Moily gave Prime Minister Manmohan Singh last week, ”there is a view that in India there is a real problem arising from a lack of consistency in sentencing practices across the country.
”This is also compounded by broad executive discretion in commuting sentences and granting pardon,” the Commission said.
With Dr Singh’s approval, a 12-member Group of Ministers headed by External Affairs Minister Pranab Mukherjee was set up three months ago to consider the recommendations.
Feedback is yet to come.
The first such Commission headed by Morarji Desai functioned during 1966-70, but some of its key recommendations are yet to be implemented.
The Moily Commission underscored that sentencing guilty persons is an important and ultimate phase of the criminal justice system.
The trouble, experts say, is that not all laws specify a minimum punishment, which gives judges the leeway to let the guilty off with a slap on the wrist– undermining deterrence.
Thus offences like bribery and cheating are punishable under the Indian Penal Code with imprisonment ”which may extend to one year.” The fact that they are among the commonest crimes is a reflection of the level of deterrence law effects.
The IPC was enacted in 1860. But even the Biological Diversity Act 2002 makes contravention punishable with imprisonment ”which may extend to five years.” No minimum punishment.
”Criminal laws normally provide for a maximum sentence that may be imposed if an offence is proved,” the Commission said, adding that a minimum punishment is prescribed in only ”a certain category of offences.
”The courts have a wide discretion in deciding the quantum of punishment,” according to the Commission.
Advocates of such discretion say it ”is necessary in order to enable the judge to impose a punishment depending upon the circumstances of each case.” They say criminal courts do not have ‘total discretion’ in deciding the sentence and, for subordinate courts, the rulings of the High courts and the Supreme Court also act as guidelines.
They also argue that in a big and diverse country like India it may not be possible to codify each and every situation, and may be best to leave it to the courts’ judgement.
But critics say ”there are instances when such wide discretion has resulted in varying punishments for similar crimes in similar circumstances.”
They say there should be statutorily-backed guidelines to help judges arrive at the quantum of punishment in each case.
The Commission has recommended that the Law Commission lay down guidelines for Trial Courts ”so that sentencing across the country for similar offences becomes broadly uniform.” It has also recommended strengthening the training for trial court judges ”to bring about greater uniformity in sentencing.”
Western experience is that guidelines help ensure ”certainty and fairness” and avoid ”disparities” among defendants with similar records and criminal conduct, while allowing flexibility for mitigating factors.
Britain, for instance, set up a Sentencing Guidelines Council to frame or revise sentencing guidelines to which ”every court must… have regard.” In the United States, a Sentencing Manual and Table lay down a range in months within which the court may sentence defendants based on nature of their offence and criminal history.
Originally mandatory, the guidelines were made discretionary two years ago by a US Supreme Court decision, which cited Americans’ constitutional right to trial by jury.
Starting June 2006, the 2nd Commission has so far submitted five Reports:
— Right to Information – Master Key to Good Governance;
— Unlocking Human Capital – Entitlements and Governance – a case study;
— Crisis Management;
— Ethics in Governance; and
— Public order.
The Commission proposes to submit nine more and has been given a 7-month extension by the Union Cabinet up to March 31, 2008.
UNI MJ

 

Thousand-Wise, Billion-Foolish ? – By Mukesh Jhangiani

                                                                                                                February 20, 2005

Yashwant Sinha, Finance Minister of India

Yashwant Sinha, India’s former Finance Minister (Photo: Wikipedia)

Thousand-Wise, Billion-Foolish ?

 

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Authorities preparing India’s 2005 Budget have been urged to stop exempting dividends Indian and foreign promoters earn– to the tune of thousands of crores of rupees.

Virtually unnoticed by millions of toiling Indian taxpayers, hundreds– perhaps thousands– of promoters have netted thousands of crores of rupees free of tax over the past eight years.

Critics say in an economy which suffers from managerial and resource inadequacy and does not ensure citizens’ access to water, housing, jobs, an effective system of justice and other basics, such policies smack of a class bias.

On one hand, authorities tax wage earners and even productivity awards, and have cut provident fund interest.

On the other, lakhs of crores are sunk in non-performing assets– loans the rich haven’t repaid– and thousands of crores fly out as company reserves distributed to individuals are exempted.

According to a news report this week, some multinationals running operations in India have declared huge dividend payouts– windfalls for bulk shareholders abroad.

The joyride started in February 1997 with then Congress Finance Minister P Chidambaram abolishing dividend tax on recipients as part of what the market hailed as a ”dream budget.”

In fact, says one critic, this was the prospect that brought the cheer and the accolades.

Since then, governments– National Democratic Alliance as well as United Progressive Alliance– have– with one exception– exempted recipients, encouraging companies to declare higher dividends– or tax-free cash year after year.

One e-published source claims the average dividend payout from Indian companies moved up from 20 per cent to 25 per cent in financial year 2004.

According to India Infoline, a hundred companies paid Rs 4,334.18 crore dividends for 2003-04– up 54.1 per cent over the Rs 2,811.3 crore paid in the previous year.

Advocates of dividend tax exemption claim it eliminates double taxation of profits– in the hands of the company and again in the hands of shareholders.

But opponents say taxing dividends declared by companies is not the same as taxing recipients’ dividend income.

A 19th century United States court ruling held that ”the capital stock of a corporation, and the shares into which such stock may be divided and held by individual shareholders, are two distinct pieces of property.

”The capital stock and the shares of stock in the hands of the shareholders may both be taxed, and it is not double taxation,” US Judge Rufus Peckham declared in 1896 in Bank of Commerce v State of Tennessee.

Asked to comment, a top Indian economist, speaking on condition of anonymity, said, ”There is no valid argument against taxing dividend or to favour exemption, especially considering that even wage earners who take home far less, are taxed.”

Yet, through that single exemption, critics say, the NDA and the UPA governments between them have contributed to thousands of crores of rupees of revenue shortfall over the years.

One man who tried to end that spree was NDA Finance Minister Yashwant Sinha who allowed exemption in February 2001– but abolished it a year later.

In that budget speech– his last– Sinha confessed he was troubled by the ”inherent inequity” in the system which ”must go.”

മലയാളം: ജസ്വന്ത് സിംഹ്

Jaswant Singh (Photo: Wikipedia)

The inequity: ”Income is exempt in the hands of the recipient” and ”allows persons in the high-income groups to be taxed at much lower rates than the rates applicable to them.”

Sinha said, ”these issues have been troubling me over the past four years, and I am now convinced that the existing system must go.” He moved to abolish tax on dividends distributed by companies and levy it on ”such income… in the hands of the recipients.”

”Few are aware,” Sinha remarked in a newspaper interview in July 2002, ”that there are people in this country who have been earning anything between Rs 10 to Rs 20 crore by way of dividends. They have been earning in crores without having to pay any tax. You think it is unjustified to tax them?” he countered.

His previous Budget, Sinha went on, registered a revenue shortfall of Rs 40,000 crore, of which ”something like Rs 22,000 crore could be directly ascribed to concessions.”

Sinha’s public remarks notwithstanding, such qualms did not appear to weigh with either his NDA successor, Jaswant Singh, or UPA incumbent Chidambaram.

In a telephone interview this week, Sinha told UNI he believed that ”all income should be treated alike from the point of view of tax.”

He said ”the hue and cry that followed the 2002 budget was largely on account of the fact that I re-introduced tax on the dividend. Many opinion makers invest in stocks and resented the tax.”

But the exemption was reintroduced in 2003 on expert advice supplied by a group led by Dr Vijay Kelkar, an economist and former International Monetary Fund executive director.

The group recommended exempting dividend both in the hands of shareholders as well as companies distributing it.

Singh was petitioned by the Legal Cell of All India Tax Payers’ Association which spelt out the incongruity in taxing everyone– even agriculturists– but exempting dividends to promoters.

Palaniappan Chidambaram (1)

Palaniappan Chidambaram (Photo: Wikipedia)

The Association warned that letting huge tax free sums accumulate in the hands of industrialists would increase the gap between rich and poor– violating Article 14 and the spirit of Article 39 (b) and (c) of the Constitution.

Those Articles provide for equality before law and forbid pursuit of economic policies that result in concentration of wealth to common detriment.

The Association said the move for full fledged exemption had not even found takers in the US.

Last week, the petitioners again represented to the authorities, urging withdrawal of exemption of tax on dividends in recipients’ hands, saying it amounts to discrimination between a common taxpayer and industrialists.

The Association says the dividends declared by companies end up in the pocket of the private management controlling the majority of shares, adding to individual incomes.

It says ten or twelve per cent tax companies must pay to declare dividend is not much price for promoters to transfer company reserves to individual accounts.

Individuals in control of companies can thus help themselves to more and more tax free income– increasing the gap between rich and poor and possibly undermining companies and jobs, it says.

UNI MJ RA GR1013

Fear Of Torture Doesn’t Let UK Deport Suspects : AG – By Mukesh Jhangiani

English: The Rt. Hon Lord Goldsmith QC, at the...

Peter Goldsmith (Photo: Wikipedia)

                                                                                                                                                             January 9, 2003

 

 

Fear Of Torture Doesn’t Let UK Deport Suspects : AG

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Fears that terror suspects might face ”death, torture or inhuman and degrading treatment” in their country of origin ”prevents us sending them back,” Britain’s chief legal advisor says.

”We have of course had to confront these issues in the United Kingdom,” Attorney-General of England and Wales Peter Goldsmith said, lecturing at the Indian Society of International Law in the Capital last night.

Mr Goldsmith, who delivered the 2003 M K Nambyar Lecture, also touched on Britain’s failure to deport a Pakistani cleric who raised money and recruits for a Kashmiri terrorist group accused of attacking the Indian Parliament in New Delhi last year.

He said the terrorist threat ”is now on an unprecedented global scale, as the dreadful events that have taken place over the last 16 months only too graphically testify: from New York-Washington and Bali to Moscow, Mombasa and here in India.”

The lecture titled ‘Right or Rights: Does tackling terrorism force us to choose?’ dwelt on steps States should take to protect themselves from the activities of terrorists and the Courts’ role in relations to State action.

”One of the more controversial steps,” the British AG said, ”relates to the treatment of persons within the country who have no immigration right to remain and who are suspected of involvement in terrorism and pose a threat to national security.

”In relation to these persons we have a difficulty,” he said. ”Under our immigration laws we have the right to deport them because they have no right to be in the country.

”But we are prevented from carrying out the deportation because of certain international obligations, notably under the European Convention of Human Rights, which is now a part of our domestic law.

”Where the individuals would face death, torture or inhuman and degrading treatment if returned to their country of origin, those obligations (under Article 3) prevent us sending them back.

”So we are faced with a choice: either to leave them to roam free in the country–which is an unacceptable risk given the heightened threats since 11 September– or to detain them unless and until they voluntarily leave the country.

”Under these new powers, 13 people have so far been detained and two, having been detained, have voluntarily left the country,” he told the audience.

Mr Goldsmith spoke of the ”inherent, but now heightened, tension within the Constitution” between the judicial branch and democratic powers– Parliament and the executive– which, he said, was to be resolved by the ”emerging principle of judicial deference.”

Mr Goldsmith cited the case of Shafiq ur Rehman, a Pakistani cleric who was ordered to be deported from Britain four years ago as a ”danger to national security” but was told a few months back that deportation proceedings against him have been dropped.

”In this case,” Mr Goldsmith recalled, the British Home Secretary had decided that the appellant’s deportation would be ”conducive to the public good” based on conclusions as to his involvement with a terrorist organisation ”operating in the Indian sub-continent (which was seeking ‘the liberation of Kashmir’).”

Shikaras are a common feature in lakes and riv...

Kashmir valley (Photo: Wikipedia)

But the appellant ”successfully appealed” to the Special Immigration Appeals Commission, which could not understand ”how conduct prejudicial to the national security of the Indian sub-continent could be prejudicial” to UK’s national security, he said.

”In the House of Lords, however which granted the Home Secretary’s appeal, Lord Hoffmann took the view that SIAC was not entitled to differ from the opinion of the Home Secretary on the question of whether, for example, the promotion of terrorism in a foreign country by a UK resident would be contrary to the interests of the UK’s own national security. In the carrying out of such assessments, the Courts should extend the appropriate degree of deference to the executive.

”That was not to say, of course, that the whole decision on whether deportation would be in the interests of national security was surrendered by the Court to the Home Secretary.

”For example, the question whether deporting someone would expose him to the risk of ill-treatment contrary to Article 3 of the Convention would be a matter which would certainly not lie within the exclusive province of the executive.

”This is an indication that the Courts are prepared to distinguish between those elements of a decision which attract deference and those which do not.

”The key question, is how well-placed or well-equipped the Courts are– having regard to the particular subject-matter of the decision and the particular areas in which the Courts have accepted expertise– to determine the particular issue,” he said.

India’s Chief Justice V N Khare presided over the lecture, which was organised jointly by the Bangalore-based National Law School of India University and the M K Nambyar Memorial Trust founded by Senior Advocate K K Venugopal to commemorate his father, one of India’s leading constitutional lawyers.

Describing the global nature and magnitude of the threat of terrorism, Mr Goldsmith said, the increased world travel, internet and global telecommunications which benefit millions ”have brought new challenges too, especially in the area of crime.”

Criminals conduct their business across international boundaries, Mr Goldsmith said. ”They traffic young women from the Ukraine or Romania to Bosnia and through the European Union to the UK; they smuggle drugs from the cocaine factories of Colombia to the streets of Paris or Rome; or launder money through bank accounts in all the financial cities of the world. Through international travel and cyberspace they operate globally. The scale of the problems is huge.”

He said drugs were a huge international business– UK market alone estimated at seven billion pounds– accounted for 2000 drugs-related deaths a year and much other crime: property crime, drug dealing, fraud and prostitution.

In one city, he said, it was reported that 70 per cent of all recorded crime was committed by drug users. He cited UN estimate that illegal immigration business is worth 15 to 30 billion dollars a year.

Estimates put the value of money laundering transactions– a key part of much organised crime– at two to five per cent of global GDP– around 1.5 trillion dollars. ”So crime now presents a global threat.

”But our national law enforcement is based firmly on a national level. Law enforcement agencies have to operate within their own national systems and national laws.

”A drug trafficker may have contacts and collaborators in any number of countries. Even to obtain the evidence of people in each of those countries may present a major logistical problem for prosecutors.

”Our courts cannot directly order the attendance of a witness from another country to attend before it; without the assistance of foreign authorities it cannot compel the production by a foreign bank of its records of transactions in another country; nor give us the ability to order the police force of another nation to investigate a particular potential witness in that country.

”And of course our national jurisdiction will usually be limited to crimes committed in our own countries so that we cannot bring to justice those whose activities may have affected us but whose conduct has been abroad.

”In short, we must respect national boundaries and frontiers whilst the criminals treat them with contempt. It is through international cooperation that we can hope to find an answer to this challenge,” the AG said.

UNI MJ RSB GC1340

Drawing Line Between Trial And Punishment ! – By Mukesh Jhangiani

                                                                                                                          March 25, 2011

M. Veerappa Moila

M. Veerappa Moily (Photo: Nestlé)

Drawing Line Between Trial And Punishment !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – More than 300,000 under-trials were let out of custody after a special drive begun early last year but with new arrivals daily the number in prisons remains almost what it was– more than 200,000.

”Imagine the plight in absence of such an effort,” was how a senior government official responded when asked about the impact of the special drive, which, he pointed out, has been extended.

Article 21 of the Constitution lays down that ”No person shall be deprived of his life or personal liberty except according to procedure established by law.”

A statistic to bear in mind: roughly two out of every three prisoners in India are under-trials– only one is a convict serving sentence.

Doing Time, Doing Vipassana

Guilty or Innocent (Photo: publik16)

That, critics say, is a telling reflection of a justice system ostensibly committed to treating an accused as innocent until proven guilty.

For instance, 162 of 543 Members elected to Parliament in 2009 faced criminal charges as against 128 in 2004. Correspondingly, 76 and 58 of them faced serious charges.

Of 813 legislative assembly members in Assam, Kerala, Puducherry, Tamil Nadu and West Bengal, which go to the polls next month, 204 faced criminal charges, 83 of them serious charges.

Serious crime cases include those involving murder, attempt to murder, kidnapping, robbery and extortion.

The special drive was an initiative by Law and Justice Minister M Veerappa Moily to decongest prisons.

”We want to dispose of as many as two-thirds of the under-trial cases by July 31,” Dr Moily told journalists on Republic Day eve 14 months ago. ”The mission begins January 26.”

The exercise involved expediting legal process for some 200,000 under-trials as part of a National Mission for Delivery of Justice and Legal Reforms.

In a jurisprudence known to let even those accused of serious crimes get bail or get elected to legislatures, many under-trials are believed to spend longer in jail than their alleged petty crimes warrant.

By law anyone arrested has a right to be informed of any charges he or she faces, consult a lawyer of his or her choice and to be produced before the nearest magistrate within 24 hours of arrest.

Lawyers say that without legal aid, those who cannot afford bail inevitably suffer prolonged incarceration during the pendency of investigation by police and trial by a court.

Experts say they languish simply because they are illiterate, do not know their rights or charges they face, and cannot afford lawyers– although Rs 50 crores is spent annually on legal aid.

According to a National Human Rights Commission consultant, India’s prison capacity in December 2008 was 293,144 inmates, against which 386,791 inmates were actually in prison– 264,502 of them under-trials and 122,289, convicts.

While authorities have been acquiescing in the miscarriage of justice, the victims’ plight has, from time to time, evoked concern at home and abroad with critics assailing India’s tortuously slow courts.

India is bound by several international human rights conventions and for decades the government as well as courts have been aware of the violations.

An early official reference to the plight of under-trial prisoners came in the findings of K F Rustamji, a National Police Commission member, 32 years ago.

He saw under-trials as ”dumb, simple persons, caught in the web of the law, unable to comprehend as to what has happened, what the charge against them is, or why they have been sent to jail,” and prisons as a system ”slowly grinding thousands of people into dust.”

Indeed, the first public interest litigation– Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar… 1979– brought to light how undertrial prisoners had been in jail longer than if they had been charged, tried, convicted and given maximum punishment.

Supreme Court lawyers recall a September 1977 judgement by Justice V R Krishna Iyer who held that ”the basic rule may perhaps be tersely put as bail, not jail.”

Among exceptions he spelt out ”are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like.”

”It made clear that incarceration in the name of judicial custody and protracted or delayed trial is itself criminal as it hits at the very base of Article 21,” says advocate Ravi Prakash Gupta.

Eight years ago, National Democratic Alliance Law Minister Jana Krishnamurthy drew attention to the plight of more than 200,000 under-trials.

”It’s a shame,” he said, that in independent India men and women have to await their day in court for over ten years.

The yearly cost to public exchequer for under-trials upkeep was then estimated at Rs 4.6 crore.

Although under-trials’ guilt is yet to be proven, they remain in prison almost indefinitely.

Experts say unlike convicts, found guilty, they are not even entitled to such basics as uniforms, literacy lessons or work.

NHRC consultant Lakshmidhar Mishra says children and juveniles are worse off inasmuch as they are put up in regular jails with hardened criminals contrary to law for lodging them in police lockups or observation homes, which are neither adequate in number nor adequately equipped.

There was no let-up until about a year ago, when a move to cut two thirds of under-trial cases was announced by Dr Moily of the United Progressive Alliance.

Addressing lawyers on November 26, 2009, marked as Law Day, the Minister regretted the justice system’s failure to give every citizen equal protection of law.

”A necessary corollary to the guarantee of the rule of law is Article 14 of the Constitution,” Dr Moily reminded.

Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

”Unfortunately,” he admitted that ”justice delivery system in its working in India has not been able to guarantee this protection to every citizen– man, woman and child.”

The government asked High Courts to identify under-trials not involved in heinous crimes or preventive detention so that their cases may be put on a fast track to expedite pressing cases.

The Indian Constitution guarantees speedy trial. But the commodity is routinely in short supply, with litigation often taking years, even decades.

Indian courts have close to 31 million cases pending, a factor that discourages justice seekers at home, investors from abroad, and has even judges advocating alternative ways of resolving disputes.

Hope may be hard to entertain given hundreds of High Court judgeships and thousands of lower judicial posts perennially vacant and inconsistent sentencing practices across India undermining the deterrent value of law.

Government figures show that there were 213,739 under-trials in prison as the drive got underway.

Over the next six months or so, only 43,504 were convicted and 50,282 discharged.

As many as 309,728 under-trials were released after having been kept in jails for unspecified periods.

About the same time, 399,115 new under-trials arrived in prisons across India, to wait for their day in the court.

Government data indicate that of 612,854 under-trials in prison for unspecified periods– ranging from a day to possibly several years– merely 7.09 per cent were actually convicted in those six months or so.

The figures made available do not, for instance, specify how long individuals spent in jail on what sort of charges before they were convicted, discharged or released.

Nor has there been a mention of compensating any who might have been jailed or held without basis.

Any compensation awarded by human rights or other authorities is discretionary, depending on how a given judge feels at the moment– hardly fair.

No compensation is mandated by the Indian Constitution or statutes for wrongful confinement.

In a telephone interview with United News of India special correspondent Mukesh Jhangiani, Dr Mishra called it ”a significant omission,” and agreed that a remedial legislation is needed.

But given the pace of legislation in India, remedies are neither swift nor easy.

The figures indicating that the number of under-trials in prison at the end of the drive was 212,454– just 1,285 less than at the outset– do not necessarily reflect a nationwide trend.

In 16 out of 27 States or Union territories for which the Justice Department has received figures, the numbers actually went up.

West Bengal led in this increase with 14,238 under-trials put into prisons while 9,337 were released, an increase of 4,901 under-trials in prison.

It was followed by Orissa, with an increase of 4,305, Rajasthan, 3071, Haryana, 1,737, Jharkhand, 1,726, Bihar, 1,550, Chhattisgarh, 1,516, Gujarat, 1,086, and Assam, 1,000.

Smaller increases were reported by Andhra Pradesh, 678, Punjab, 677, Kerala, 652, Manipur, 238, Tripura, 118, Himachal Pradesh, 107, Goa, 106, Nagaland, 69, and Arunachal Pradesh, 47.

One State which reported the highest decline was Uttar Pradesh which released 77,205 under-trials while putting in jail 55,287, an actual decrease of 21,918.

It was followed by Madhya Pradesh, where the number of under-trials in prison declined by 748, Karnataka, 643, Uttarakhand, 569, New Delhi, 356, Maharashtra, 257, Mizoram, 156, Meghalaya, 112, Sikkim, 58, Chandigarh, 11, and Daman and Diu, 1.

The Department had no figures immediately from Tamil Nadu, Jammu and Kashmir, Andaman and Nicobar, Dadra and Nagar Haveli, Lakshadweep and Puducherry.

The programme originally scheduled to end on July 31, ”is continuing,” Dr Moily told journalists a few weeks ago.

From citizens’ perspective locking up innocent, law-abiding individuals is as undesirable and indeed repugnant as letting crooks and lawbreakers roam free or shape laws or societies.

UNI MJ NK 1749