1. Intro
* Now everything available on WWW, IP start @1983, 3 decade now, we have a big eye on world, every thing happen in world we get know about here there & anywhere, from video-conf to skype, from facebook to twitter etc.
1. UNGA resolution'97
* To harmonize & unify "law of international trade" & In order to devp trade esp in devpng countries, UNGA pass model law on "electronic commerce" after legalizing "computer record", this new model law Called "UNICITRAL model law on E-Commerce" & ask all state to follow it
* Subsequently, India enact ITA'2000 to facilitate "E-comm" as a alternative to "paper based Communication & storage" + legalize Electronic Documents & Signatures it also amend: IPC, Indian Evidence Act'1872, Bankers' Books Evidence Act'1891 & RBI Act'1934 & other which connected to it
1. What in Sec66AITA'2000
* As per ITA'2000 offences are: tempering of docs & publish obscene info beside them :
Sec66:
It say wrongful loss or damage to any public or person info & hacking are offences
1. But in mean time it was feels that this act not provide informational security, so govt came with ITAA'08 - just like:--- mini constitution it have massive changes, govt give new mini ITA'2000 in form of ITAA'08
1. What in ITAA'08
* Bill in '06 'finally passed in'08
* It replace "digital signature" with "electronic signature" lolz
* Defining communication devices, cybercafe & security etc
* Cleverly remove "Regulations" form "Cyber Regulations Appellate Tribunal"
* Prohibit child pornography
* Now offence:
* @Sec66, they include "dishonesty" & "fraudulently"
* & 66A: According to section following is offence:
* Grossly offences & menace characteristic
* False info cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation. enmity, hatred or ill will,
* & add much more as "Sec66" became "Sec 66A to 66F", &"Sec67" became "Sec67 A to 67C"
* They include recipient in offence not very good as he is not responsible for it,
* This all make it so difficult that this bill passed without discussion in House
* Sec 66A is most criticized at that time & now,
* Even Sec69 empower CG/SG/agency For interception any data incl. encrypted, for national security a seed for PRISM of India , which sprout in form of CMS NCTC & many other agencies,
1. Overall a view made by UN & even in India for "trade facilitation" Now became a "authoritarian law" where there is no privacy/no freedom & you are under surveillance.
1. What is Art14, 19, 21,
* No need to elaborate all know it
1. What is social media:
* Its new invention on Internet,
* Social media = social + media,
* Media = communication instrument like:--- newspaper radio = unilateral i.e. only one directional communication
* Social = a phenomenon of interaction, it should bilateral communication,
* So social media = a media in with 2-way communication
* Its democratization of IT
* Type of social media:
1. Advantage of social media:
* Facilitates open comm, leads to enhanced info discovery & delivery.
* Allow discuss ideas, post news, ask questions & share links.
* Widen you contacts.
* In edu it use to disseminate/spread knowledge via video-cof, utube, wiki etc
* Professional networking & recruitment via LinkedIn etc
* Keep personal contect via facebook, orkut etc
* Use in Business marketing via LinkedIn google, facebook etc
* Market research,
But There is little social about social media always, beside profit it make our life virtual, i.e. Relation became less personal, reduce face to face interaction,
1. Disadvantage
* Primary disadvantage that people not know how to use social media. people waste more time it leads to in-,
* it limit our societal interaction,
* If we go on road then we need license but there is no license for Social media, anybody can access any thing, via fake ID
* vulnerability of users to hacking/fraud /spam /virus attacks.
* data or identity theft.
* Negative campaign
* Productivity lost,
Enough theory lets see some dynamic contents
1. things happen in social media - In world
* PRISM we all know about it nothing to say
* ECHELON surveillance by US & EU
* Apple received so much criticism about how its iPhones and iPads were collecting and storing user location data -later cos apology
* AOL Search Leak: it release search keywords it supposed to be anonymous but later but many keywork include personal info later cos apolize & removed it
* Google street view map scandal of various monument & security locations,
* nina davuluri critisim also evident where social media use for racism
1. In India:
* Operation Blue Virus is latest, (blue virus = social media = Ubiquitous, Unbridled, Untamable)
* IT cos offer "customized online reputation management services" to boost anybody popularity, & even malign opponents, for money from lakhs to crores in cash
* They offer fake fan-following on social media platforms
* Clients incl. business & politician, even scam tainted public servants
* So far 2 dozen cos uncovered what nos of uncovers a full-fledged business
* provide demographic data on voters, on linguistic /communal lines, for effective booth management
* Hiring Dedicated journalists / detectives to throw opponent
* buying votes of the poor
* spreading rumours
* exploding bomb to force a particular minority community stay indoors on polling day, so bogus votes could be cast.
* They use different IP addresses, offshore servers, proxy codes or wireless connections, disable tracking device of a computer system & destroy same when job is over, to cover their tracks.
* violate various laws, like:--- ITA2000, the RPA1951 Income Tax Act 1961,
* riots in Muzaffar Nagar
* exodus of Northeastern Chinis from cities across India
Various arrest under Sec66A
1. Manoj Oswal for causing inconvenience to relatives of Sharad Pawar for allegations made on his website
* Jadavpur University Professor Ambikesh Mahapatra for political cartoon of Mamata Banerjee;
* businessman Ravi Srinivasan for defamatory tweet against chindu son
* 2 Air India emp, jailed for 12 days for defamatory remarks on Facebook against a trade union leader & politician;
* Aseem Trivedi, accused of violation of the IT Act for cartoons lampooning Parliament and the Constitution to depict its ineffectiveness. later incident rocked the nation
* 2 young women, for comment posted on Facebook that questioned shutdown of Mumbai following demise of Bal Thackeray.
* Sanjay Chaudhary arrested for posting objectionable comments and caricatures of Manmohan Singh, Kapil Sibal & Mulayam Singh Yadav on his Facebook wall.
Did you notice all victims(lolz) are minister or VIP, Can all security/safety only for them.
1. Is those all charges are real or just fake, its simple that if a minister/VIP not like any comment he ask police to arrest that person, Is this happening
* Other side of mirror:
* We know that social media is a world second / virtual world, but here is some problem,
* When you have to drive a vehicle, you have to got a driving license, but in social media no any thing require, anyone can do any thing, no age-proof, no certification, even not a simple training that how to use this internet & social media,
* A small child publish his photo thinking that his friend can see, but he dont know that who & where there phota can seen
So lets back to topic:
1. Several PILs filed to SC that "Sec 66A curbs freedom of speech and expression & violates Art14, 19 21
* it also say that Section is vague & ambiguous lead to wanton abuse by police .
1. Centre reply: that Sec66A is valid as it has been taken from UK Communications Act, 2003,
* @nov'12 we also advise SG not to allow police to make arrests @Sec66A without prior approval from an officer not below rank of IG in metropolitan cities or DCP / SP at district level. But, advisory = not sufficient as political interference in law enforcement is well known
* & in implementation SG make "spirit Law" to "letter law"
* then SC ask all SG to adhere CG guidelines in implementing Sec66A ITA'08
1. Later a private members resolution moved in Parliament, to withdraw this draconian Section 66A but later withdrawn following Sibal assurance that resolution will be taken up after SC rules on it
1. So where is real problem:
* Identity, in print media you always know about person who posting, who editor, even they governed by Press regulation Act,
* But in social you dont know who/when/why a person post from anywhere, most time social media is opaque
* Jurisdiction issue intermediary & carrier are not liable to jurisdiction, we have to rely on intermediary/carrier to know identity sender
* Expansion We are expanding our network it became a second world without boundaries but existing laws have boundaries, like:---
* in US any person can send much as many sms as he think, he can publish smoking ad in any website of US which majorly viewed in India,
1. What GoI do for social media
* To publish "govt initiatives" In social media, govt created New Media Wing under M/oIB .
* Govt of India issue: Framework & Guidelines for Use of Social Media for Govt Org https://www.negp.gov.in/pdfs/Social%20Media%20Framework%20and%20Guidelines.pdf
* MoIB @Youtube,
* In order to establish a direct communication between the Ministry and various stakeholders of Community Radio fraternity in the country, the Ministry has launched a dedicated page on facebook- Community Radio India. This page can be accessed from www.facebook.com/communityradioindia
* Delhi traffic police is on facebook, you can lodge complaint on page & get redressal
* Metrological dept issue weather report via social-media/SMS
Difference in use of social media & thinking:
Youth / new generationPolitician / older generation
They use social media massively, with such a high pace They are unable to match pace of new generation, they are not giving regular reply, when there is rumor they are absent to stop those rumor, in hasty they apply ITA improperly
New generation see society as horizontal platform, & see all people at same level They see society as vertical platform, see they are who control all things,
A debate on social media & freedom:
Pro-social media i.e. favor of Art19Anti-social media i.e. in against Art19
1. Social media should not be controlled as mainstream media,
* As we can see mainstream media is totally commoditized, paid news,
* major news channel are assets of business/politician,
* We not get correct ground-reality of situation/problem,
* But atlest via social media we get some correct info/view, & esp very rapidlySocial media should be controlled just like to mainstream media as its now have many bad effect
1. although it have some deformities, but if govt respond quickly these deformities can be easily overcomeNot easy as it have @very small level, even a cell phone used as bomb see case of NE exodus
1. Even after certain level of its self correctingBut what below that level, these poor people are much more vulnerable & constitute around 70% of India popu, for just profit some 14-15 m people why make life of other poor people vulnerable,
1. Pro argument make those people also tech available, i.e. coverage of social media
* Its fast
* Also spread rumor very faster
* See: Rumor of white house demolition share market loss
* Mainstream media give info/news on concentrated area, or its focus is on one thing even for whole day for a penny topic like:--- child fell in well, sharukh got cough ,
* but social media you have reach to every person make its info very diverse,@ end it became too diverse that sys became complex & we are unable to address any of issue correctly,
1. Blue virus show social media importance to politicians & there consciousness about there image, if we proper manage this quality of social media it became really profitable,
* See who are making this whole thing to stop = politicians,
* Its because when they see social media's benefit, they try to buy like& comments, but when people try to reap social media benefit, they try to stop it via misinterpretating existing laws, (as public welfare/profit cause a loss to business/politicians) Buy like& comment i.e. fake world
1. Politicians are not Focus on real problem : communal violence or any incident,
* but they are focus on social media,
* Can earlier riots are not happening, where there are not any social media like:--- '92-'93 riots, '84 riots, 02' riots London riots done by social mediapro: these riots are due to social disparity
1. These incidents are violation of Communalism/sedition/other laws based on different ideology
* So why put social media for its toll,Social media is great factor which contribute to massive loss
1. We see things are weird as
* Manipulation/other faults in mainstream media are organized but social media is institutionalized/unorganized,
1. In main stream media you can't highlight your talk/view individually, it get various scrutiny like:--- editor,
* But in social media single people can post, & all can view & comment on it if its correct they spread it but if it bad they censor it,
* in social media some small group discuss but other major part of people remain untouched,
* Without regulation there is no any thing then how social media free,
1. common man can't challenge any mainstream media for fake/wrong reporting as it have no good response,
* but in social media a smallest man can give its comment,
* even responsible politician responding accordingly, but what do if majority of our politicians are unresponsive/authoritarian or have tyranny mindsetWe have all redressal mechanism so why need social media
Misc:
1. Art19(2)CoI have a term "decency or morality" So ambiguity is also in it
* For same crime if committed offline - 2yr jail, if online - 3yr jail why this difference
* Aadhar : is a bad example of social data gathering as they collect common man data without any law, this all work done by private agencies they are really vulnerable, how can they legitimate there this claim
Conclusion:
1. Common people are never like riots, they always think of peace
* we agree that freedom of expression is until when it not hurt other person/public emotion/material,
* Its not correct to put restrictions, as this is not solution of problem but it is oppression of speech/ideas,
* There are certain bad content in social media, We have to face them counter them heal them if necessary,
* I.e. not shut any rumor but create such info/evidence/truth/proof that rumor seen/became fake or it became quite &for it govt have to be fast enough to updating such contents, & Why govt is not fast enough to do so, same gen-gap
* In other words you also say in present time negative matters are more organized in social media than positive elements, see blue virus
* Social media is not a element its medium, we need to focus on massage sender & not on messenger
* we have to fight communal forces, on which our govt never show any sign, like:--- '84riots,in which social media not used, till now any person is not convicted to them,
* See vanzara case - a live example, even arrest is when he not follow politicians,
* & you can't control spreading of rumors, even '75 emergency can't control rumors, as news on one place is spreaded to whole country
* in muzzzafarnagar we can't say that if no social media than riots are prevented
* At same time we need to revisit of countrys cyber laws to plug some loopholes, like:--- communal violence bill it fill many gap in existing laws
* We also take care that laws are implement on spirit not on words, & without impinging on freedom of speech
* Otherwise, it will be not too long before social media, ubiquitous, unbridled and untamed, becomes the bane of society with all its attendant ills
@last we think that Same sms save many fisherman @storm period
Indrajeet Singh
Ref
Some initial part of http://www.youtube.com/watch?v=FBE2tyXzGCI
UNGA resol http://www.un.org/documents/ga/res/51/ares51-162.htm
ITA2000http://eprocure.gov.in/cppp/sites/default/files/eproc/itact2000.pdf
ITA'08http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/it_amendment_act2008.pdf
A critical analysis of ITA.08http://cis-india.org/internet-governance/publications/it-act/short-note-on-amendment-act-2008/
Op Blue virushttp://www.cobrapost.com/index.php/news-detail?nid=4026&cid=23
Social media http://webtrends.about.com/od/web20/a/social-media.htm
Dis/advantagehttps://www.udemy.com/blog/advantages-and-disadvantages-of-social-networking/
Dis/advantagehttp://www.shrm.org/templatestools/hrqa/pages/socialnetworkingsitespolicy.aspx
Privacy scandals http://www.networkworld.com/news/2012/012612-privacy-scandals-255357.html?page=2
ECHELONhttp://news.bbc.co.uk/2/hi/uk_news/politics/655996.stm
ECHELONhttp://news.bbc.co.uk/2/hi/europe/820758.stm
thehinduhttp://www.thehindu.com/opinion/lead/an-unreasonable-restriction/article4432360.ece
Private resolhttp://www.firstpost.com/india/centre-promises-advisory-note-to-stop-misuse-of-sec-66-a-of-it-act-557788.html
Some RS debates on issue,
Showing posts with label SC. Show all posts
Showing posts with label SC. Show all posts
Monday, January 13, 2014
REDRAWING THE POLICE ADMINISTRATION
"If the foundation stone is crooked, the wall cannot be straight."
-Persian Philosopher
Colligating to the above quoted text, the prominent status of maintaining 'law and order' in the
conduct of a democracy can be very well established. The foundation of State is made of
rocks and mortar of security and protection, erosion of this will lead to the fall of the entire
State. With the Revolt of 1857 to the ushering of independence in1947, with a traditional Indian
society to the rise of prominent middle class, from one epoch to another, India has witnessed
developments in each and every sphere be it political, social, economic or
administrative. These developments have further been influenced and moulded in the global
environment with the rise of number of non-state institutions and human-centered approach
thereby, placing every agency to the critical assessment at the global phase. Police
performance in India have been in major limelight for many decades and now demanding
greater measure than at any time.
The administrative unit responsible for enforcement of law to maintain order of
community and internal regulation of State is referred to as 'Department of Police'. In most of
the developing countries, the organization and administration of this department is an attribute
of their colonial hangover. Similarly, in India, the Police System is basically extrapolated from
the British Police Act of 1861. Most of the State laws reflect this legislation of our colonial past
and thus inviting a huge criticism from every dimension of society.
But tracing down the history of India, one can find the roots of its origin during the
Mauryan Empire. Kautilya's arthashastra presents a vivid picture of Police administration. With
the passage of time, the departments were widened and during Mughal era, the kotwali system
emerged. The major phase of changes in this system started in the first hundred years of
British rule. Rules were modified to suit the imperial needs and assert the colonial
consolidation. One such step was the Police Act of 1861, which was mainly legislated in the
aftermath of 1857 and accentuated the objectives of colonial model and to serve the interests
of ruling administration. This act ignored the basic principles of policing i.e. accountability to
citizens, obligation to judicial review , preventing crime and wining the trust and confidence of
people rather only emphasized on repressive and coercive measures to strike terror in the
citizens to abide by law. This act subordinated the police to executive control and this practice
is evident in most of the State laws even after six decades of independence.
Post independence, the subject of maintaining law and order was placed in the State
list under article-246 of the constitution on India and a number of state laws have been
formulated such as Bombay Police Act(1951), Kerala Police act (1960), Karnataka Police
Act (1963) and so on. But each one of these act is a mere reflection of the police act 1861,
Indian Penal Code, Code of Criminal Procedure or the Indian Evidence Act- 1872 and thus led
to steady deterioration of police administration in India.
There is a huge list of the causes of popular dissatisfaction against the Police . The
major one being the perception of people about police as 'cruel', rude, corrupt, partisan in
nature, 'inactive' if no pressure, 'criminals in uniform' and 'immoral. This view is not
individualistic rather towards the whole outdated police system. The dismal record of police in
investigating cases and successful prevention of crime has further aggravated the situation.
Moreover, the continuous influence of bureaucracy and politics in the functioning, investigating
of cases and preventing crimes has led to general perception of repelling away from
police .Citing the recent case of riots in Uttar Pradesh, reports revealed that the police
didnt take any action in fear of political conseqences. The administration of police being entirely
under bureaucratic hand which being politically influenced further create confusion about the
flow of authority and thus inability to act. In absence of any accountability and answerability,
the police acts arbitrarily and in its discretion under the umbrella of bureaucracy and politics.
The top-down rigid hierarchy structure gives less avenues of promotion and thus fails to attract
the youth of the country ,leaving a large amount of human development untapped. Also, The
custom of 'sahib' sitting in the office issuing orders to 'hawaldars' ,along with poor
arrangements for training, performance appraisals, shortage of resources, service conditions,
poor conditions etc. has led to low morale and motivation among employees esp. at lower
levels of organization.
Apart from these, the ecological effects of rising population, inflation, poor pay structures,
violent outbursts in protest, student and political activists, criminalization of politics and
administration, corruption, red-tapism further challenge their existence.
As Kiran Bedi has stated that,
Had our forefathers shown foresight in two areas, we would have been a different
country today, first population control and second. professional, independent and accountable
policing.
the need for a transparent, accountable and answerable police force is strongly due to the
level of harassment and disgust and disappointment people feel of the process of police. The
idea of inequality or community bias is prevalent in this system thus defining the basic
fundamental right of equality to the people. there is a stark contrast between the police treating
politicians, VIPs, ministers and the harsh, brutal victimization of poor, marginalized society.
with the increased level of awareness, civil society groups, RTI act and judicial review has
mobilized a larger section of society against this. The increasing need of an environment free from fear
and terror and conducive for realization of people's right led to a landmark judgment by the
supreme court in 2006 in Prakash Singh vs. Union of India.
SC restricted central and state governments to comply with a set of seven directives that laid
down mechanisms to start police reforms directives to achieve:
1-functional autonomy for police (security of tenure, streamlined appointment and transfer
processed, creation of buffer body between police and government).
2- Enhanced police accountability (both for organizational performance and individual
misconduct). According to the current statics only 14 states have either enacted the police act
or made changes to the existing ones as per the SC directives.
In 2006 Government of India formed a committee - Police Act Drafting Committee (PADC)
under the chairmanship of soli-sorabjee committee to draft a new model to guide State
governments adoption of new police laws. The Model Police Act submitted by this expert
committee is still not applied. The Act, incorporates several suggestions including creation of
state police board (for deciding on promotion and transfers of cops), ensure fixed tenure of
police chief. Measures like setting up of state security commission (to check political or
bureaucratic pressure on police); merit-based selection of state police chief from among three
senior most cops; giving them security of tenure; separate the investigation and law and order
functions of the police and setting up of police establishment board (deciding all transfers,
promotions, postings and other service related matters) are yet to see the light of day in
majority of the states.
A new term in frequent use these days is "democratic policing" i.e. police to be
Tranparent, accountable to law, protects human rights and serve community as its
representative rather than that of the political minds.
Good policing is a pre-requisite for efficient government and in a country like India, with a
diverse and cultural background, the fundamental needs of representative policing are
inevitable. The need for decentralization by taking initiative at the local levels i.e. Panchayats
and municipalities by setting us of a grievance redressal mechanism at each police office,
creation of an appellate authority in marginalized area and thus mobilizing and creating
awareness among the masses is required. Voluntary organizations can be set up to educate
people of their rights and duties towards county and inculcating a feeling of trust and
confidence within the police administration.
The police administration has to be separated from political influences and efficiently
regulated. efficient training programs for conduct and behavior with the masses, dealing
situations with ethical and moral decisions, conducting seminars at local levels for the
masses by each SHO in his are to win trust and faith of people in police organization can be
some measures, organising award ceremonies for able and efficient work can be conducted
Moreover, the officers of higher levels of this hierarchy should appear as the guiding leaders
so to boost the morale of the lower grade officers. Citing an example from Punjab police in
1980s, the police morale was low with the high rise of terrorist activities the then appointed
DGP started an operation "Night Domination" .He cited the specific areas and along with all
senior officials visited those areas. This involvement of officers in undertaking risk for their
duties and public good highly boosted the morale of police.
The perception of police neutrality and trust-worthiness has to be re-established via
empowerment, both within the services and outside via lokpal and lokayukts , efficient citizen charters etc. If that is done, one may be able to see a moral revolution in this country in one's lifetime.
Anjali
References
1. Indian Administration- Fadia and Fadia
2. Wikipedia
3. Human rights initiative.org
-Persian Philosopher
Colligating to the above quoted text, the prominent status of maintaining 'law and order' in the
conduct of a democracy can be very well established. The foundation of State is made of
rocks and mortar of security and protection, erosion of this will lead to the fall of the entire
State. With the Revolt of 1857 to the ushering of independence in1947, with a traditional Indian
society to the rise of prominent middle class, from one epoch to another, India has witnessed
developments in each and every sphere be it political, social, economic or
administrative. These developments have further been influenced and moulded in the global
environment with the rise of number of non-state institutions and human-centered approach
thereby, placing every agency to the critical assessment at the global phase. Police
performance in India have been in major limelight for many decades and now demanding
greater measure than at any time.
The administrative unit responsible for enforcement of law to maintain order of
community and internal regulation of State is referred to as 'Department of Police'. In most of
the developing countries, the organization and administration of this department is an attribute
of their colonial hangover. Similarly, in India, the Police System is basically extrapolated from
the British Police Act of 1861. Most of the State laws reflect this legislation of our colonial past
and thus inviting a huge criticism from every dimension of society.
But tracing down the history of India, one can find the roots of its origin during the
Mauryan Empire. Kautilya's arthashastra presents a vivid picture of Police administration. With
the passage of time, the departments were widened and during Mughal era, the kotwali system
emerged. The major phase of changes in this system started in the first hundred years of
British rule. Rules were modified to suit the imperial needs and assert the colonial
consolidation. One such step was the Police Act of 1861, which was mainly legislated in the
aftermath of 1857 and accentuated the objectives of colonial model and to serve the interests
of ruling administration. This act ignored the basic principles of policing i.e. accountability to
citizens, obligation to judicial review , preventing crime and wining the trust and confidence of
people rather only emphasized on repressive and coercive measures to strike terror in the
citizens to abide by law. This act subordinated the police to executive control and this practice
is evident in most of the State laws even after six decades of independence.
Post independence, the subject of maintaining law and order was placed in the State
list under article-246 of the constitution on India and a number of state laws have been
formulated such as Bombay Police Act(1951), Kerala Police act (1960), Karnataka Police
Act (1963) and so on. But each one of these act is a mere reflection of the police act 1861,
Indian Penal Code, Code of Criminal Procedure or the Indian Evidence Act- 1872 and thus led
to steady deterioration of police administration in India.
There is a huge list of the causes of popular dissatisfaction against the Police . The
major one being the perception of people about police as 'cruel', rude, corrupt, partisan in
nature, 'inactive' if no pressure, 'criminals in uniform' and 'immoral. This view is not
individualistic rather towards the whole outdated police system. The dismal record of police in
investigating cases and successful prevention of crime has further aggravated the situation.
Moreover, the continuous influence of bureaucracy and politics in the functioning, investigating
of cases and preventing crimes has led to general perception of repelling away from
police .Citing the recent case of riots in Uttar Pradesh, reports revealed that the police
didnt take any action in fear of political conseqences. The administration of police being entirely
under bureaucratic hand which being politically influenced further create confusion about the
flow of authority and thus inability to act. In absence of any accountability and answerability,
the police acts arbitrarily and in its discretion under the umbrella of bureaucracy and politics.
The top-down rigid hierarchy structure gives less avenues of promotion and thus fails to attract
the youth of the country ,leaving a large amount of human development untapped. Also, The
custom of 'sahib' sitting in the office issuing orders to 'hawaldars' ,along with poor
arrangements for training, performance appraisals, shortage of resources, service conditions,
poor conditions etc. has led to low morale and motivation among employees esp. at lower
levels of organization.
Apart from these, the ecological effects of rising population, inflation, poor pay structures,
violent outbursts in protest, student and political activists, criminalization of politics and
administration, corruption, red-tapism further challenge their existence.
As Kiran Bedi has stated that,
Had our forefathers shown foresight in two areas, we would have been a different
country today, first population control and second. professional, independent and accountable
policing.
the need for a transparent, accountable and answerable police force is strongly due to the
level of harassment and disgust and disappointment people feel of the process of police. The
idea of inequality or community bias is prevalent in this system thus defining the basic
fundamental right of equality to the people. there is a stark contrast between the police treating
politicians, VIPs, ministers and the harsh, brutal victimization of poor, marginalized society.
with the increased level of awareness, civil society groups, RTI act and judicial review has
mobilized a larger section of society against this. The increasing need of an environment free from fear
and terror and conducive for realization of people's right led to a landmark judgment by the
supreme court in 2006 in Prakash Singh vs. Union of India.
SC restricted central and state governments to comply with a set of seven directives that laid
down mechanisms to start police reforms directives to achieve:
1-functional autonomy for police (security of tenure, streamlined appointment and transfer
processed, creation of buffer body between police and government).
2- Enhanced police accountability (both for organizational performance and individual
misconduct). According to the current statics only 14 states have either enacted the police act
or made changes to the existing ones as per the SC directives.
In 2006 Government of India formed a committee - Police Act Drafting Committee (PADC)
under the chairmanship of soli-sorabjee committee to draft a new model to guide State
governments adoption of new police laws. The Model Police Act submitted by this expert
committee is still not applied. The Act, incorporates several suggestions including creation of
state police board (for deciding on promotion and transfers of cops), ensure fixed tenure of
police chief. Measures like setting up of state security commission (to check political or
bureaucratic pressure on police); merit-based selection of state police chief from among three
senior most cops; giving them security of tenure; separate the investigation and law and order
functions of the police and setting up of police establishment board (deciding all transfers,
promotions, postings and other service related matters) are yet to see the light of day in
majority of the states.
A new term in frequent use these days is "democratic policing" i.e. police to be
Tranparent, accountable to law, protects human rights and serve community as its
representative rather than that of the political minds.
Good policing is a pre-requisite for efficient government and in a country like India, with a
diverse and cultural background, the fundamental needs of representative policing are
inevitable. The need for decentralization by taking initiative at the local levels i.e. Panchayats
and municipalities by setting us of a grievance redressal mechanism at each police office,
creation of an appellate authority in marginalized area and thus mobilizing and creating
awareness among the masses is required. Voluntary organizations can be set up to educate
people of their rights and duties towards county and inculcating a feeling of trust and
confidence within the police administration.
The police administration has to be separated from political influences and efficiently
regulated. efficient training programs for conduct and behavior with the masses, dealing
situations with ethical and moral decisions, conducting seminars at local levels for the
masses by each SHO in his are to win trust and faith of people in police organization can be
some measures, organising award ceremonies for able and efficient work can be conducted
Moreover, the officers of higher levels of this hierarchy should appear as the guiding leaders
so to boost the morale of the lower grade officers. Citing an example from Punjab police in
1980s, the police morale was low with the high rise of terrorist activities the then appointed
DGP started an operation "Night Domination" .He cited the specific areas and along with all
senior officials visited those areas. This involvement of officers in undertaking risk for their
duties and public good highly boosted the morale of police.
The perception of police neutrality and trust-worthiness has to be re-established via
empowerment, both within the services and outside via lokpal and lokayukts , efficient citizen charters etc. If that is done, one may be able to see a moral revolution in this country in one's lifetime.
Anjali
References
1. Indian Administration- Fadia and Fadia
2. Wikipedia
3. Human rights initiative.org
Great Maldivian electoral circus
Partyleaderspresident candidate
Maldivian Democratic PartyMohamed NasheedMohamed Nasheed
Progressive Party of MaldivesMaumoon Abdul GayyoomAbdulla Yameen
Jumhooree PartyQasim IbrahimQasim Ibrahim
Present President: Mohd. Waheed HasanBackground:Mohd. Nasheed became the first elected president of Maldives in 2008 after 30 years of autocratic rule of Maumoon Abdul Gayyoom. Who was controversially supported by india too.But during Nasheed reign he was unable to take all political parties along with him and started taking decisions single handily. He took many controversial decisions.One of them was to sack and arrest chief justice of Criminal court.it led to protests, even police was with protestors. All the state apparatus went against him andhe was forced to resign on 2012. The vice president Mohd Waheed was sworn in as president.
To get a better grip on it Read http://mrunal.org/2012/12/diplomacy-maldives-coup-reasons-implications-nasheed-gmr.htmlPresent Scenario:The present governments term is ending on 11th November 2013 and the president cannot continue after that as per the constitution of Maldives. So election is the only way forward.Facts:
Nasheed is still the most popular leader of Maldives and when he was prosecuted in court (for doing above) he further garnered support of general public of Maldives and India in specific. So due to this he was not banned from contesting elections by supreme court of Maldives.
Lets enter the circus now:First Phase of First electionsNasheed of the MDP got 45.45 percent votes
Abdulla Yameen of the PPM ( Gayooms party) with 25.35 percent
Gazim Ibrahim of Jumhooree party with 24.07
Current president Waheed got 5.13 percent
To be A president in Maldives you need to win 50%+1 votes and no one did so..
Therefore next round was inevitable but it was to be decided between top 2 contenders Nasheed and Yameen
Poor looser gasim Ibrahim:
The Jumhooree party filed a case in the High Court alleging rigging of the votes. They alleged that there were variations between the voters list and votes polled in various booths, votes being polled by voters who had no residential addresses, the names of many deceased were found in the list,repetition of some names in the lists etc.
The Jumhooree party filed another case in the Supreme Court seeking an injunction to delay the second round of voting. Surprisingly, the PPM of Gayoom and Yameen also supported the Jumhooree in the Supreme Court. The case filed by 3rd candidate Qasim Ibrahim is against the chances of 2nd candidates chances (Yameen) to go into run off for presidential seat. Still 3rd supported 2nd. WHY?
Bigger surprise was that the State Attorney General who should have remained neutral, intervened on behalf of the Jumhooree party in the court.
Most worrying, from my point of view is that most of the Islamic NGOs along with the Adhaalath party have called for a protest against the Election Commission alleging that the first round of presidential elections was rigged
Supreme Courts decision:1. It ordered that electoral lists may be given to High Court for scrutiny.
2. It also ordered an indefinite postponement of the run off.
3. Recounting of 490 boxes will take many days and the EC said that it is impossible to conduct the second round on the 28th Octoberas scheduled.
4. Pronounced that even if elections are not concluded before 11th November the present Govt. Continues in office.
5. Directed EC to verify the electoral lists again with finger prints of voters and dually signed by all president candidates..
Retaliation:
Meanwhile Nasheed, Indian Govt and western observers including EU, UN & USA all cried foul against SCs Judgement, but couldnt do more than lip service.
When Jumhooree party filed case; there was a fear that the 2nd round of elections may/will be derailed.
Therefore Majlis (parliament of Maldives) dominated by MDP members passed a resolution calling for the state institutions to proceed with the elections. during the passage of this resolution, there was unprecedented violence within the Majlis with the speakers mike being destroyed and members assaulted (isnt it circus now)
On the other hand Election Commission tried to proceed with the arrangements for the 2nd round of elections as mandated by constitution, while the Supreme Court took the unusual position that it can even change the constitution.
The Supreme Court had a midnight meeting on 26th September calling on the Police and the military to enforce the injunction order and halt all preparations for the conduct of the elections. On 27th September, the Police did whatever was said by SC.Flawed judgement of SC:1. 3 judges out of 4 annulled the elections on the basis of a confidential report not shown to even defendant.
2. 1 judge out of 3 who annulled elections is facing sexual crime charges in Sri lanka.
Basis:a report filed by police which was later revealed to public, showed 5623 out of 211850 voters with irregularities. i.e 2.5%
The breakup of 5623 irregularities pointed out is as follows.
Category 1:
7 minors had voted
773 people whose names were not in the list had voted.
225 who voted did not have the national identity card had voted.
18 votes were cast against the names of deceased persons.
3 people have voted twice.
Category 2:
819 people who voted had discrepancies in the identity card.
952 had discrepancies in their names
2830 people had irregularities in their permanent address.
And most laughable were last three (in red). Lolzzz
Most controversial was that this report was not shown even to the defendants lawyer before annulling elections.
It is clear that category 2 types of voters are not frauds these are just typing mistakes and not fraudulent votings. (Imagine if this has to happen in India where almost all voter IDs have spelling mistakes)
Also difference between 1st and 2rd candidate is way more than 5623.
First Phase of second elections
On 19th of November the date decided by SC for fresh first round of elections Police came to the picture and stopped EC to go on as scheduled.Police says that some electoral lists were not signed by all candidates and it is against the verdict of SC.My questions here is who the hell is police to interpret SC judgements and taking a Suo Motu cognizance and acting accordingly
Ridiculously two candidates named Qasim Ibrahim and Abdulla Yameen went underground. Now how can EC search out them and get the lists signed by them. And when they came out they went straight to SC and asked to verify all finger prints.
This could take at least 6 months. Actually it was all a part of larger plan to delay elections, create constitutional vacuum and keep nasheed away from power.From this picture it is clear that no one really understands who is really in power in Maldives
* Waheed
* Police Or
* Supreme Court
Reasons of doing so:
* Jumhooree Party candidate Qasim Ibrahim is considered as one of the most influential figures of Maldivian judicial services so he used all his strength to keep Nasheed away.
* It is alleged that Nasheed is anti Islamic. But truth is that he is a man with progressive mind and do not want religious fundamentalism to pop out its head it Muslim nation Maldives.
* Muslim clerics of Maldives who are against the MDP want to make maldive an Islamic state with sharia as its law, to which nasheed is oppsosing because it as against the economc interest f Maldives as its economy is driven by tourism sector and under such restrictive environment maldive could definitely loose aits foreign tourists.
* PPM even tried in SC to debar Nasheed from contesting elections on the grounds of outright criticism of Islam and imposing Islamic Sharia but failed to do under international pressure.
* Tried to frustrate the MDP supporters and waited for them to resort to violence. If they would have done so then state apparatus would have a got an excuse to put Nasheed behind Bars and keep him away from elections. It was a nice ploy of Law and order situation which they planned to sell to western observers and India.
* It is alleged that both Abdulla Yameen and Qasim Ibrahim were involved in major scams so they fear that they could be prosecuted if Nasheed comes to power.
Another Step by MAJLIS:
Now to avert any constitutional Vacuum the Majlis passed the resolution that if president is not elected by the end of 11th nov the speaker of majlis (who belongs to MDP) will lead the interim govt.With this resolution Opposition k plan par pani fir gaya and they all fell in line, president waheed for the first time announced that he does not want to continue beyond 11th nov and he will resign from his post. Both the opposition leaders lost all their ploys.
Final Run off After first round of Second elections (9th November) concluded Nasheed emerged with just short of majority with 47% votes trailing him was Abdullah Yameen with 30% of votes. Poor GQasim Ibrahim had it on his face.
The Elections Commission had earlier scheduled a runoff on November 16, but brought it forward to November 10 to avoid a constitutional crisis. But again The Supreme Villain Court of Maldives came into the picture and ruled that the consecutive days of elections would be impractical, and set November 16 for the runoff.After this delay US, EU, India and UN woke up from their slumber and openly warned and criticised Maldivian SC and President Waheed who were acting as impediments for elections.President Waheed Snubbed Majlis and extended his reign to 6 more days until the next candidate is elected and attracted flak from all international observers.Reason of this delay:it was alleged that gayoom and Gasim Ibrahim patched up and wanted to convert their collective votes in favour of Yameen (just to keep nasheed out of power). To do it they needed some time. Gayom promised G. Ibrahim 1/3rd of appointments in govt. He asked his supporters and voters to vote in favour of Yameen. That is why SC delayed run off to 16th (Gasim Ibrahim has nice links in SC as he was an influential member of Judicial Services).
END:
As you all know that some great person has said in a boring movie that hamari zindgi main bhi hamari hindi filmo ki tarah end main sab theek thaak ho jata hai
but Maldives didnt follow the above dictum and ultimately nasheed lost by a small margin and yameen won. Nasheed instead of moving to SC for stay gracefully accepted his defeat and pledged to work with president as a responsible opposition.
Indian stand:
From very beginning i.e. the coup against Nasheed India kept out of this mess citing the reasons that the democracy of Maldives is still immature and it needed some time to get consolidated, which appears to me as failure of Indias foreign policy. India must have interfered to save Nasheed who is a pro Indian leader and save guarded its own interests in Indian Ocean, whereas the next president Waheed was playing in Chinese hands and ousted GMR.Yameen on his oath promised to make closer ties with Arab nations, china also wooed them with 50bn dollar aid just after the election concluded.But here is the twist, soon after Yameen winning his election vented his anger and frustration against EU but did not utter a word against India, just because the level of interference was very less from Indian side. Therefore our foreign policy of wait and watch to see that who emerges as clear choice of public and then engage with him was a #success. Now Yameen is the choice of majority and he is not against India by any means so If India needs to have a stronger foot hold then she must work closely with both Yameen and Nasheed.Circus ends here and now concentrate on mains. Best of luck.Source: All articles tagged with Maldives in South asia analysis group (SAAG) and the hindu.
Aditya Sangotra
Maldivian Democratic PartyMohamed NasheedMohamed Nasheed
Progressive Party of MaldivesMaumoon Abdul GayyoomAbdulla Yameen
Jumhooree PartyQasim IbrahimQasim Ibrahim
Present President: Mohd. Waheed HasanBackground:Mohd. Nasheed became the first elected president of Maldives in 2008 after 30 years of autocratic rule of Maumoon Abdul Gayyoom. Who was controversially supported by india too.But during Nasheed reign he was unable to take all political parties along with him and started taking decisions single handily. He took many controversial decisions.One of them was to sack and arrest chief justice of Criminal court.it led to protests, even police was with protestors. All the state apparatus went against him andhe was forced to resign on 2012. The vice president Mohd Waheed was sworn in as president.
To get a better grip on it Read http://mrunal.org/2012/12/diplomacy-maldives-coup-reasons-implications-nasheed-gmr.htmlPresent Scenario:The present governments term is ending on 11th November 2013 and the president cannot continue after that as per the constitution of Maldives. So election is the only way forward.Facts:
Nasheed is still the most popular leader of Maldives and when he was prosecuted in court (for doing above) he further garnered support of general public of Maldives and India in specific. So due to this he was not banned from contesting elections by supreme court of Maldives.
Lets enter the circus now:First Phase of First electionsNasheed of the MDP got 45.45 percent votes
Abdulla Yameen of the PPM ( Gayooms party) with 25.35 percent
Gazim Ibrahim of Jumhooree party with 24.07
Current president Waheed got 5.13 percent
To be A president in Maldives you need to win 50%+1 votes and no one did so..
Therefore next round was inevitable but it was to be decided between top 2 contenders Nasheed and Yameen
Poor looser gasim Ibrahim:
The Jumhooree party filed a case in the High Court alleging rigging of the votes. They alleged that there were variations between the voters list and votes polled in various booths, votes being polled by voters who had no residential addresses, the names of many deceased were found in the list,repetition of some names in the lists etc.
The Jumhooree party filed another case in the Supreme Court seeking an injunction to delay the second round of voting. Surprisingly, the PPM of Gayoom and Yameen also supported the Jumhooree in the Supreme Court. The case filed by 3rd candidate Qasim Ibrahim is against the chances of 2nd candidates chances (Yameen) to go into run off for presidential seat. Still 3rd supported 2nd. WHY?
Bigger surprise was that the State Attorney General who should have remained neutral, intervened on behalf of the Jumhooree party in the court.
Most worrying, from my point of view is that most of the Islamic NGOs along with the Adhaalath party have called for a protest against the Election Commission alleging that the first round of presidential elections was rigged
Supreme Courts decision:1. It ordered that electoral lists may be given to High Court for scrutiny.
2. It also ordered an indefinite postponement of the run off.
3. Recounting of 490 boxes will take many days and the EC said that it is impossible to conduct the second round on the 28th Octoberas scheduled.
4. Pronounced that even if elections are not concluded before 11th November the present Govt. Continues in office.
5. Directed EC to verify the electoral lists again with finger prints of voters and dually signed by all president candidates..
Retaliation:
Meanwhile Nasheed, Indian Govt and western observers including EU, UN & USA all cried foul against SCs Judgement, but couldnt do more than lip service.
When Jumhooree party filed case; there was a fear that the 2nd round of elections may/will be derailed.
Therefore Majlis (parliament of Maldives) dominated by MDP members passed a resolution calling for the state institutions to proceed with the elections. during the passage of this resolution, there was unprecedented violence within the Majlis with the speakers mike being destroyed and members assaulted (isnt it circus now)
On the other hand Election Commission tried to proceed with the arrangements for the 2nd round of elections as mandated by constitution, while the Supreme Court took the unusual position that it can even change the constitution.
The Supreme Court had a midnight meeting on 26th September calling on the Police and the military to enforce the injunction order and halt all preparations for the conduct of the elections. On 27th September, the Police did whatever was said by SC.Flawed judgement of SC:1. 3 judges out of 4 annulled the elections on the basis of a confidential report not shown to even defendant.
2. 1 judge out of 3 who annulled elections is facing sexual crime charges in Sri lanka.
Basis:a report filed by police which was later revealed to public, showed 5623 out of 211850 voters with irregularities. i.e 2.5%
The breakup of 5623 irregularities pointed out is as follows.
Category 1:
7 minors had voted
773 people whose names were not in the list had voted.
225 who voted did not have the national identity card had voted.
18 votes were cast against the names of deceased persons.
3 people have voted twice.
Category 2:
819 people who voted had discrepancies in the identity card.
952 had discrepancies in their names
2830 people had irregularities in their permanent address.
And most laughable were last three (in red). Lolzzz
Most controversial was that this report was not shown even to the defendants lawyer before annulling elections.
It is clear that category 2 types of voters are not frauds these are just typing mistakes and not fraudulent votings. (Imagine if this has to happen in India where almost all voter IDs have spelling mistakes)
Also difference between 1st and 2rd candidate is way more than 5623.
First Phase of second elections
On 19th of November the date decided by SC for fresh first round of elections Police came to the picture and stopped EC to go on as scheduled.Police says that some electoral lists were not signed by all candidates and it is against the verdict of SC.My questions here is who the hell is police to interpret SC judgements and taking a Suo Motu cognizance and acting accordingly
Ridiculously two candidates named Qasim Ibrahim and Abdulla Yameen went underground. Now how can EC search out them and get the lists signed by them. And when they came out they went straight to SC and asked to verify all finger prints.
This could take at least 6 months. Actually it was all a part of larger plan to delay elections, create constitutional vacuum and keep nasheed away from power.From this picture it is clear that no one really understands who is really in power in Maldives
* Waheed
* Police Or
* Supreme Court
Reasons of doing so:
* Jumhooree Party candidate Qasim Ibrahim is considered as one of the most influential figures of Maldivian judicial services so he used all his strength to keep Nasheed away.
* It is alleged that Nasheed is anti Islamic. But truth is that he is a man with progressive mind and do not want religious fundamentalism to pop out its head it Muslim nation Maldives.
* Muslim clerics of Maldives who are against the MDP want to make maldive an Islamic state with sharia as its law, to which nasheed is oppsosing because it as against the economc interest f Maldives as its economy is driven by tourism sector and under such restrictive environment maldive could definitely loose aits foreign tourists.
* PPM even tried in SC to debar Nasheed from contesting elections on the grounds of outright criticism of Islam and imposing Islamic Sharia but failed to do under international pressure.
* Tried to frustrate the MDP supporters and waited for them to resort to violence. If they would have done so then state apparatus would have a got an excuse to put Nasheed behind Bars and keep him away from elections. It was a nice ploy of Law and order situation which they planned to sell to western observers and India.
* It is alleged that both Abdulla Yameen and Qasim Ibrahim were involved in major scams so they fear that they could be prosecuted if Nasheed comes to power.
Another Step by MAJLIS:
Now to avert any constitutional Vacuum the Majlis passed the resolution that if president is not elected by the end of 11th nov the speaker of majlis (who belongs to MDP) will lead the interim govt.With this resolution Opposition k plan par pani fir gaya and they all fell in line, president waheed for the first time announced that he does not want to continue beyond 11th nov and he will resign from his post. Both the opposition leaders lost all their ploys.
Final Run off After first round of Second elections (9th November) concluded Nasheed emerged with just short of majority with 47% votes trailing him was Abdullah Yameen with 30% of votes. Poor GQasim Ibrahim had it on his face.
The Elections Commission had earlier scheduled a runoff on November 16, but brought it forward to November 10 to avoid a constitutional crisis. But again The Supreme Villain Court of Maldives came into the picture and ruled that the consecutive days of elections would be impractical, and set November 16 for the runoff.After this delay US, EU, India and UN woke up from their slumber and openly warned and criticised Maldivian SC and President Waheed who were acting as impediments for elections.President Waheed Snubbed Majlis and extended his reign to 6 more days until the next candidate is elected and attracted flak from all international observers.Reason of this delay:it was alleged that gayoom and Gasim Ibrahim patched up and wanted to convert their collective votes in favour of Yameen (just to keep nasheed out of power). To do it they needed some time. Gayom promised G. Ibrahim 1/3rd of appointments in govt. He asked his supporters and voters to vote in favour of Yameen. That is why SC delayed run off to 16th (Gasim Ibrahim has nice links in SC as he was an influential member of Judicial Services).
END:
As you all know that some great person has said in a boring movie that hamari zindgi main bhi hamari hindi filmo ki tarah end main sab theek thaak ho jata hai
but Maldives didnt follow the above dictum and ultimately nasheed lost by a small margin and yameen won. Nasheed instead of moving to SC for stay gracefully accepted his defeat and pledged to work with president as a responsible opposition.
Indian stand:
From very beginning i.e. the coup against Nasheed India kept out of this mess citing the reasons that the democracy of Maldives is still immature and it needed some time to get consolidated, which appears to me as failure of Indias foreign policy. India must have interfered to save Nasheed who is a pro Indian leader and save guarded its own interests in Indian Ocean, whereas the next president Waheed was playing in Chinese hands and ousted GMR.Yameen on his oath promised to make closer ties with Arab nations, china also wooed them with 50bn dollar aid just after the election concluded.But here is the twist, soon after Yameen winning his election vented his anger and frustration against EU but did not utter a word against India, just because the level of interference was very less from Indian side. Therefore our foreign policy of wait and watch to see that who emerges as clear choice of public and then engage with him was a #success. Now Yameen is the choice of majority and he is not against India by any means so If India needs to have a stronger foot hold then she must work closely with both Yameen and Nasheed.Circus ends here and now concentrate on mains. Best of luck.Source: All articles tagged with Maldives in South asia analysis group (SAAG) and the hindu.
Aditya Sangotra
Judiciary system
1. In '1937, US, Roosevelt replace many SC judges by puppet as they are obstructing him to pass a bill which deficit of US, by Judicial Procedure Reform Bill, although his intention = noble, + it also not compromised judicial independence,
2. But in India = its intention = differ,
3. Collegium = small/powerful/unaccountable RS passed bill to scrap it,
4. Art 124 estb & determine SC,
5. Many say if this time then again further parlia amend laws make JAC sys total in there favor, & it became then easier to amend such law again,
6. UPA in furry to pass this bill on sacrificing independence of SC, = is to hide there culprits in all there scams like:-- coal, 2G & other fancy scams, before '14 election as @'14, 10SCJ are retiring, make UPA a good chance to win to reap this benefit, it also benefit them for flagships like:-- NFSB, & Land acquisition,
7. But this short term govt reputation gain affect our long term goal of separation of power,
Some remaining work @judicial reform
1. Key area of reform in Law
1. Appointment of judges,
2. Working of judicial sys
3. Modernization key economic legislation
4. Restoring independence & dignity of law officer of govt
National Judicial appointment commission (JAC)
1. Appointment of judge @current in constitutional court is by collegiums(made'93by judges) HC&SC judge, but now political sys influence(as politician say it not work) this collegiate need to replace it with JAC
* But only making JAC not work, we have to estb SOP's for JAC, with transparency,
* It also note down setting of JAC not done by legislation alone
Some new against JAC
* Its endless debate to decide who appoint judges,
* Art 222 says presi appoint HC judge court with consult of CJI,
* But proposal of JAC = great threat to judicial independence, although it require a consi amendment,
* As JAC bill seek appointment of JAC for SC/HC judges,
* Minister say we both have equal stake so both have equal right,
* But bill only seek Union Govt demand, & not seek collegium reform,
* Principally say that sys = not transparent, + personal like & there interest are there, as meritorious candidates are sidelined many times, without reason,
* But even SC say "consult with CJI" is only due to prevent appointment from political interference, as present sys of collegium also a result of SC two case decision & apply from'1990
* So complaint of CG that they not consulted in process = wrong as presi = there candidate
* But executives are upset as they have fucked many times, like:-- 2G coalgate, + also fucked by CAG CEC etc
* But we can see history full of events to undermine constitutional body independence, like:--
* Next day after keshavananda case verdict indira remove 3 judges ( which give verdict against CG ) & appoint a her side judge & win 3 case bank nationalisation, kesavnanda, privy purse
* This all led to protest as it is a great threat to judicial independence,
* Also after '75 emergency & losing case of using state power for election, she transferred 16 judges, sucks morale of fearless judges,
* + @ emergency, consti is extensively amended, like:--
* Judicial review eliminated, 2/3majority of judges = mandated to invalidate legislation, press censored, & opposition leader detained, without trial,
* @second term of indira gandhi he again try to access judge independence SC make CJI review mandatory,
* Post-'80, it was widely seen that CJI recommendation = neglected by executives,
* 1993-till date, collegium sys, although it have some shortcomings, but it need reform not abolished & replaced with a already failed sys that take independence of judicial,
* As JAC structure show they have a politician majority like:--
* CJI +2 SCJ - on one side
* Law minister, 2 eminent person, justice secretary, leader of opposition, PM other side ( = people representatives )
* but we see present sys is now superior one but need some reform only,
* & attempt to restore political dominance @ judicial appointment only subvert basic consi structure, became a recipe for disaster, so resist it,
* Centre to likely dismantle collegiums sys to appointment of judges
* @collegiums sys: 2/more judges only appoint judge
* @ JAC: there are govt politician also
Advocates are against collegium as it appoint bad judges via nepotism, but they also disagree with CG-JAC = which is also other tool to play nepotism,
* @jun 276/904 vacancy @ HC,
* Most states canvassing for appointment based on : caste, community, political, & other (non-merit)considerations.
Collegium experiment
* Emergency & post emergency witness of attempt to muzzle judiciary by executives, here are from where idea of collegium developed, in which senior most HCJ/SCJ appoint other judge without/merely consulting executive, but after 20 yr sys experienced corruption & last in sys there are judges with incompetent, inefficient, ethically compromised
* In may'13, 1k lawyer of Pun & Haryana HC protest for 7 names recommendation @collegium sys, saying "nepotism/favoritism"
* @jun'13 Madras HC Advocate association gave presentation to CJ-HC about low standard of collegium recommended names & say appointment based on other factors, We @ bar deeply distressed, even alarmed by this partisan appointment, a deep future where judicial institution interest have sacrificed at alter of personal interest
Consequences of poor judges
* Long delay (even many judge retire w/o giving judgment)
* Inability to organize time effectively for there board main = wasting other member's time
* Lack of clarity & clean reasoning in judgment
* Lack of knowledge even basic principal of laws
* Lack of ability & willingness to learn
* Ghost writing of judgment
Ultimately eroding of respect & confident in judicial process, even many people conception is also like this that "judgment delivered is based on states canvassing & personal affinities with particular member of bar/litigant this all give pain to us & also to state, it put down moral & motivation of lawyer Make them weak to perform there duty @ last they want transparency in appointment criteria of those judges
* For many yr although bar council demand transparency in judicial appointment, but now major concern secrecy surround appointment
* Real issue is "how judges appointed" & not who appointed, irrespective whether it executive/judiciary/JAC as long as appointment is opaque & made on personal consideration,
Solution :
* Sys of UK JAC:@UK Constitutional Reform Act'05 make merit =sole base for judge selection, + need a good character also, while JAC try to diverse selection from many sectors,
* JAC's criteria based on 5 terms:
* Intellectual capacity:
* High level of expertise @ chosen/specific area of there professional
* Ability to quickly absorb & analyze info
* Appropriate knowledge of law & understanding of principal
* Ability to acquire this knowledge where necessary
* Personal qualities:
* Integrity & independence of mind
* Sound judgment
* Decisiveness
* Objectivity
* Ability & wiling to learn & develop professionally
* Work constructive
1. Understanding & dealing fairly:
* Treat each one with respect & sensitivity whatever there background
* Willing to listen with patience & courtesy
2. Authority & communication skills:
* Ability to explain procedure & any decision reached clearly
* Maintain authority when challenged
3. Efficiency:
* Work speedy @ pressure
* Organize time efficiently & produce clear reasoned judgment expeditiously
* All above quality based on evidence only,
* Public hearing of senate to appoint senior judge @US =another example of transparency, although it not possible for us but atleast we can apply principals of transparency/accountability/citizen participation in our sys,
As transparency inspire confidence in people,
At same time transparency in collegium = not new topic, its have its root from 20yrs from SC to HC also,
* As judge bear responsibility of ensuring respect for "rule of Law" ensure that govt is based on Consti principle & vision
* Country deserve nothing less than, a learned person whose conduct is beyond doubt ' as a judge
* Irrespective of whether appointment is based on, collegium/JAC/other bar council member also need to be consulted,
* Our nation future is not only b/c powerful want remain powerful
* Winds of change sweeping the world demanding greater participation, inclusion, equity, accountability & transparency
Pendency of cases
* Indian judicial sys = overloaded, understaffed, bursting as it seems,
* Case Pendency
* Many suggest solution=judge, currently 11/1million ratio, global=50 but it not a issue to pendency, real problem in sys of judge working As : if no new case, major state's pendency clears in 1-2yrs, no solution to nos of judges
National litigation (judicial proceedings)policy
* A pendency problem (or judiciary) can be solved by transforming govt into responsible & efficient litigant, as most of cases are of against states
* A well drafted "National litigation policy" mooted@2010 but not implemented,
* Similarly provision like:-
* Imposing actual cost of litigations frivolous cases + adjournments, so sys should work together to implement them,
* With all those measures, more immediate measure to improve judiciary sys is enhance quality of justice given to high value cases (in money terms) ' esp @ foreign investment, as "commercial draft" of HC Bill scrapped @ LS @2011, as it suffered from many drafting flaws, revised version of bill in cold storage hope so it came out now
* Many important law require immediate attention:
* Key amendment to Arbitration & conciliation Act 1996, which reduce judicial intervention, & streamline ADR, not passed yet
* Even many minister say similar amendment require to strengthening regulation on bank & insu
* Law officer of govt AG, SG, ASG now only serve there clients, president empowered to appoint AG as qualify for SC judge, but recently resignations by them spread furor as it became many time to compromise there dignity @UPA rule preferred to quit
Institution eroded
* Fucking of 2 law officer @coalgate, show erosion of Indian democracy/judiciary,
* So now consider JAC-which appoint judges, this will even insulate these officer from political pressure, & also reduce any charge of govt management of sensitivity before consi courts, ( as the 2 law officer fucked by UPA )
* These reform necessary as confidence of public eroded out from judiciary sys , not just by recent event but also via many structural & institutional flaws @present sys,
* "consi confer power but not ensure that power exercised wisely (with high capacity & integrity )"
* Even if consi successfully work, an attempt to improve political atmosphere,
* Art 124(3) say three condition to appoint a SC judge
* HCJ +5yr or 2x HCJ
* Advocate HC + 10yr or 2x Advocate HC
* presi consent as "distinguished jurist"
1&2 can good but 3 ones definition is vague, or have a over-explanation like:-- a scholar who break common level by research & indrajeet have to debate all that why a professor needs to such a situation where we need new things,
* Lawyer are against JAC, opposed current Collegium, actually they seek there involvement, & only sough to make collegium sys more transparent
* They say if JAC "cure will be worse than disease"
Really awake some concepts
* This all not solve democratic accountability, first reason why collegium scrapped,
* In consti, SC judge have given power of check & balances they strike down law made by parli, it they violate consi, (Keshavnanda Bharti'73) so its totally undemocratic if selection of such powerful body is done by some law learned wo/men, who are unelected & not represent people, & @ last virtually irremovable, esp. a stringent impeachment process,
* Judge choose judge on basis of only technically qualification
* But in this time we also need social & constitutional philosophies this should be taken in appointment process,
* even when a HC lawyer is selected it : they look @ his level of practice, income, major argument, etiquette @court, etc
* But HC judge chosen on bases of seniority
* But we sought only one philosophy = consi philosophy
*
* A question on various judgment by SC, like:-- holding reservation in superspeciality/PG in AIIMS = unconstitutional, by saying to maintain talent totally uncertain judgment which not involve any qualification, just a bald statement
1. Although it may be due to pressure on judges, but it can't justify this judgment, as reservation = 63yr old phenomenon practicing by nation,
2. Sibbal say: he continue existing reservation sys,
* Judiciary not have knowledge of HR management, as we already saw many judge have tenure of days only there nepotism give chance to all to became apex, 14- 18 days are there tenure,
* Its serious affect is that no one give a good governance/inputs,
* So proposed sys give a HR man to ensure a sufficient tenure,
* Similar situation is @HC - here tenure = 3-6 months
* Above point also raise a new point that, is these HC/SC short term judges give good recommendation for appointment of another judge, can they measure there ability in such a short time, can even they worry/investigate about quality of there Succeeders,
* Is they give CJ post so that after retiring they extract CJ benefits, are they not cartel to give benefit to all,
* Even when they found it mandatory a 2 yr term for DGI(Police)
The hindu compilation on various article
Indrajeet singh
2. But in India = its intention = differ,
3. Collegium = small/powerful/unaccountable RS passed bill to scrap it,
4. Art 124 estb & determine SC,
5. Many say if this time then again further parlia amend laws make JAC sys total in there favor, & it became then easier to amend such law again,
6. UPA in furry to pass this bill on sacrificing independence of SC, = is to hide there culprits in all there scams like:-- coal, 2G & other fancy scams, before '14 election as @'14, 10SCJ are retiring, make UPA a good chance to win to reap this benefit, it also benefit them for flagships like:-- NFSB, & Land acquisition,
7. But this short term govt reputation gain affect our long term goal of separation of power,
Some remaining work @judicial reform
1. Key area of reform in Law
1. Appointment of judges,
2. Working of judicial sys
3. Modernization key economic legislation
4. Restoring independence & dignity of law officer of govt
National Judicial appointment commission (JAC)
1. Appointment of judge @current in constitutional court is by collegiums(made'93by judges) HC&SC judge, but now political sys influence(as politician say it not work) this collegiate need to replace it with JAC
* But only making JAC not work, we have to estb SOP's for JAC, with transparency,
* It also note down setting of JAC not done by legislation alone
Some new against JAC
* Its endless debate to decide who appoint judges,
* Art 222 says presi appoint HC judge court with consult of CJI,
* But proposal of JAC = great threat to judicial independence, although it require a consi amendment,
* As JAC bill seek appointment of JAC for SC/HC judges,
* Minister say we both have equal stake so both have equal right,
* But bill only seek Union Govt demand, & not seek collegium reform,
* Principally say that sys = not transparent, + personal like & there interest are there, as meritorious candidates are sidelined many times, without reason,
* But even SC say "consult with CJI" is only due to prevent appointment from political interference, as present sys of collegium also a result of SC two case decision & apply from'1990
* So complaint of CG that they not consulted in process = wrong as presi = there candidate
* But executives are upset as they have fucked many times, like:-- 2G coalgate, + also fucked by CAG CEC etc
* But we can see history full of events to undermine constitutional body independence, like:--
* Next day after keshavananda case verdict indira remove 3 judges ( which give verdict against CG ) & appoint a her side judge & win 3 case bank nationalisation, kesavnanda, privy purse
* This all led to protest as it is a great threat to judicial independence,
* Also after '75 emergency & losing case of using state power for election, she transferred 16 judges, sucks morale of fearless judges,
* + @ emergency, consti is extensively amended, like:--
* Judicial review eliminated, 2/3majority of judges = mandated to invalidate legislation, press censored, & opposition leader detained, without trial,
* @second term of indira gandhi he again try to access judge independence SC make CJI review mandatory,
* Post-'80, it was widely seen that CJI recommendation = neglected by executives,
* 1993-till date, collegium sys, although it have some shortcomings, but it need reform not abolished & replaced with a already failed sys that take independence of judicial,
* As JAC structure show they have a politician majority like:--
* CJI +2 SCJ - on one side
* Law minister, 2 eminent person, justice secretary, leader of opposition, PM other side ( = people representatives )
* but we see present sys is now superior one but need some reform only,
* & attempt to restore political dominance @ judicial appointment only subvert basic consi structure, became a recipe for disaster, so resist it,
* Centre to likely dismantle collegiums sys to appointment of judges
* @collegiums sys: 2/more judges only appoint judge
* @ JAC: there are govt politician also
Advocates are against collegium as it appoint bad judges via nepotism, but they also disagree with CG-JAC = which is also other tool to play nepotism,
* @jun 276/904 vacancy @ HC,
* Most states canvassing for appointment based on : caste, community, political, & other (non-merit)considerations.
Collegium experiment
* Emergency & post emergency witness of attempt to muzzle judiciary by executives, here are from where idea of collegium developed, in which senior most HCJ/SCJ appoint other judge without/merely consulting executive, but after 20 yr sys experienced corruption & last in sys there are judges with incompetent, inefficient, ethically compromised
* In may'13, 1k lawyer of Pun & Haryana HC protest for 7 names recommendation @collegium sys, saying "nepotism/favoritism"
* @jun'13 Madras HC Advocate association gave presentation to CJ-HC about low standard of collegium recommended names & say appointment based on other factors, We @ bar deeply distressed, even alarmed by this partisan appointment, a deep future where judicial institution interest have sacrificed at alter of personal interest
Consequences of poor judges
* Long delay (even many judge retire w/o giving judgment)
* Inability to organize time effectively for there board main = wasting other member's time
* Lack of clarity & clean reasoning in judgment
* Lack of knowledge even basic principal of laws
* Lack of ability & willingness to learn
* Ghost writing of judgment
Ultimately eroding of respect & confident in judicial process, even many people conception is also like this that "judgment delivered is based on states canvassing & personal affinities with particular member of bar/litigant this all give pain to us & also to state, it put down moral & motivation of lawyer Make them weak to perform there duty @ last they want transparency in appointment criteria of those judges
* For many yr although bar council demand transparency in judicial appointment, but now major concern secrecy surround appointment
* Real issue is "how judges appointed" & not who appointed, irrespective whether it executive/judiciary/JAC as long as appointment is opaque & made on personal consideration,
Solution :
* Sys of UK JAC:@UK Constitutional Reform Act'05 make merit =sole base for judge selection, + need a good character also, while JAC try to diverse selection from many sectors,
* JAC's criteria based on 5 terms:
* Intellectual capacity:
* High level of expertise @ chosen/specific area of there professional
* Ability to quickly absorb & analyze info
* Appropriate knowledge of law & understanding of principal
* Ability to acquire this knowledge where necessary
* Personal qualities:
* Integrity & independence of mind
* Sound judgment
* Decisiveness
* Objectivity
* Ability & wiling to learn & develop professionally
* Work constructive
1. Understanding & dealing fairly:
* Treat each one with respect & sensitivity whatever there background
* Willing to listen with patience & courtesy
2. Authority & communication skills:
* Ability to explain procedure & any decision reached clearly
* Maintain authority when challenged
3. Efficiency:
* Work speedy @ pressure
* Organize time efficiently & produce clear reasoned judgment expeditiously
* All above quality based on evidence only,
* Public hearing of senate to appoint senior judge @US =another example of transparency, although it not possible for us but atleast we can apply principals of transparency/accountability/citizen participation in our sys,
As transparency inspire confidence in people,
At same time transparency in collegium = not new topic, its have its root from 20yrs from SC to HC also,
* As judge bear responsibility of ensuring respect for "rule of Law" ensure that govt is based on Consti principle & vision
* Country deserve nothing less than, a learned person whose conduct is beyond doubt ' as a judge
* Irrespective of whether appointment is based on, collegium/JAC/other bar council member also need to be consulted,
* Our nation future is not only b/c powerful want remain powerful
* Winds of change sweeping the world demanding greater participation, inclusion, equity, accountability & transparency
Pendency of cases
* Indian judicial sys = overloaded, understaffed, bursting as it seems,
* Case Pendency
* Many suggest solution=judge, currently 11/1million ratio, global=50 but it not a issue to pendency, real problem in sys of judge working As : if no new case, major state's pendency clears in 1-2yrs, no solution to nos of judges
National litigation (judicial proceedings)policy
* A pendency problem (or judiciary) can be solved by transforming govt into responsible & efficient litigant, as most of cases are of against states
* A well drafted "National litigation policy" mooted@2010 but not implemented,
* Similarly provision like:-
* Imposing actual cost of litigations frivolous cases + adjournments, so sys should work together to implement them,
* With all those measures, more immediate measure to improve judiciary sys is enhance quality of justice given to high value cases (in money terms) ' esp @ foreign investment, as "commercial draft" of HC Bill scrapped @ LS @2011, as it suffered from many drafting flaws, revised version of bill in cold storage hope so it came out now
* Many important law require immediate attention:
* Key amendment to Arbitration & conciliation Act 1996, which reduce judicial intervention, & streamline ADR, not passed yet
* Even many minister say similar amendment require to strengthening regulation on bank & insu
* Law officer of govt AG, SG, ASG now only serve there clients, president empowered to appoint AG as qualify for SC judge, but recently resignations by them spread furor as it became many time to compromise there dignity @UPA rule preferred to quit
Institution eroded
* Fucking of 2 law officer @coalgate, show erosion of Indian democracy/judiciary,
* So now consider JAC-which appoint judges, this will even insulate these officer from political pressure, & also reduce any charge of govt management of sensitivity before consi courts, ( as the 2 law officer fucked by UPA )
* These reform necessary as confidence of public eroded out from judiciary sys , not just by recent event but also via many structural & institutional flaws @present sys,
* "consi confer power but not ensure that power exercised wisely (with high capacity & integrity )"
* Even if consi successfully work, an attempt to improve political atmosphere,
* Art 124(3) say three condition to appoint a SC judge
* HCJ +5yr or 2x HCJ
* Advocate HC + 10yr or 2x Advocate HC
* presi consent as "distinguished jurist"
1&2 can good but 3 ones definition is vague, or have a over-explanation like:-- a scholar who break common level by research & indrajeet have to debate all that why a professor needs to such a situation where we need new things,
* Lawyer are against JAC, opposed current Collegium, actually they seek there involvement, & only sough to make collegium sys more transparent
* They say if JAC "cure will be worse than disease"
Really awake some concepts
* This all not solve democratic accountability, first reason why collegium scrapped,
* In consti, SC judge have given power of check & balances they strike down law made by parli, it they violate consi, (Keshavnanda Bharti'73) so its totally undemocratic if selection of such powerful body is done by some law learned wo/men, who are unelected & not represent people, & @ last virtually irremovable, esp. a stringent impeachment process,
* Judge choose judge on basis of only technically qualification
* But in this time we also need social & constitutional philosophies this should be taken in appointment process,
* even when a HC lawyer is selected it : they look @ his level of practice, income, major argument, etiquette @court, etc
* But HC judge chosen on bases of seniority
* But we sought only one philosophy = consi philosophy
*
* A question on various judgment by SC, like:-- holding reservation in superspeciality/PG in AIIMS = unconstitutional, by saying to maintain talent totally uncertain judgment which not involve any qualification, just a bald statement
1. Although it may be due to pressure on judges, but it can't justify this judgment, as reservation = 63yr old phenomenon practicing by nation,
2. Sibbal say: he continue existing reservation sys,
* Judiciary not have knowledge of HR management, as we already saw many judge have tenure of days only there nepotism give chance to all to became apex, 14- 18 days are there tenure,
* Its serious affect is that no one give a good governance/inputs,
* So proposed sys give a HR man to ensure a sufficient tenure,
* Similar situation is @HC - here tenure = 3-6 months
* Above point also raise a new point that, is these HC/SC short term judges give good recommendation for appointment of another judge, can they measure there ability in such a short time, can even they worry/investigate about quality of there Succeeders,
* Is they give CJ post so that after retiring they extract CJ benefits, are they not cartel to give benefit to all,
* Even when they found it mandatory a 2 yr term for DGI(Police)
The hindu compilation on various article
Indrajeet singh
Constitutionally Important Supreme Court Judgements
* I. C. Golaknath Vs. State of Punjab Case: Year 1967
* Case was about validity of amendment of Punjab Land Security Act 1053 and Mysore Land Reforms Act. Moreover this amendment was included in ninth schedule of constitution by Seventieth Amendment Act, 1964. Petitioners challenged this amendment under Article 32 of constitution. Constitutional Bench comprising of 11 judges headed by then Chief Justice of SC was to decide on whether Fundamental Rights intended to be permanently unamendable.
* Bench with 6-5 pronounced ruling that Amendments to Fundamental Rights are outside purview of Parliament. Constituent Assembly has to be formed in order to change part(s) of Fundamental Rights or Article 368 of Indian Constitution.
* Bench said Fundamental Rights are given transcendental position in Indian Constitution and has been kept out of reach of Parliament. Even during emergency, Article 19 stands to be suspended by Article 358 while all other fundamental rights are available except those specifically suspended by President under Article 359 while proclaiming emergency.
* Article 13 is not source of protection of fundamental rights but is expression of reservation. No matter how well intentioned policy unanimously enacted by Parliament but if it abridges any article residing under Part IIIthen it would be declared as void.
* It is parliaments duty to enforce directive principles policy without affecting ambit of fundamental rights.
* Article 368 merely prescribes procedure for amendment of constitution; it cant be source of power to amend constitution. Article 368 is not itself complete code for amendment procedure.
* In this case, court used doctrine of prospective overruling in which court finds the law; but it doesnt give retroactive effect. Due to this doctrine, judgment pronounced by this bench would only bar future laws aimed to take away fundamental rights; it would not affect validity of Seventieth Amendment, 1964 or any past acts related to infringement of Fundamental Rights.
* Kesavananda Bharati Vs. State of Kerala: Year 1973
* Kesavananda filed case against Kerala states attempt to restrict management of property under its two land reforms acts. This case judgement overruled earlier Golaknath case judgement. It was heard by largest constitutional bench. Judgement was held by 7-6 margin.
* SC held that amendment to constitution is not law itself.
* Important view adopted by SC in this case was parliament could amend any part of constitution unless it didnt alter/amend the basic structure or essential features of constitution.
* During the time when this case was surfaced in Supreme Court, there was culmination of conflict between Judiciary and Government.
* By this landmark judgement Supreme Court came as saviour to constitution from totalitarian encroachment of constitution by Parliament. SC pronounced constitution superior over Parliament.
* Basic Structure Doctrine adopted by SC in this judgement preserved democracy in India.
* Since then, SC adopted Basic Structure Doctrine in subsequent cases.
* Another important proposition adopted by SC is that though preamble isnt part of constitution, basic structure of constitution can be derived from Preamble, Fundamental Rights and Directive Principles.
* Features of Basic Structure Doctrine adopted by SC can be derived from different judgments delivered by court since pronouncement of this doctrine. Basic features are sovereignty and territorial integrity of India, the federal system, judicial review, Parliamentary system of government, Reasonableness, Freedom and Dignity of individual, Fair Election, Secularism, Rule of Law, Equality, Social and Economical Justice, Judicial Review.
* SC also upheld validity of clause (4) of Article 13 and corresponding provision of Article 368(3) which reads as follows: Nothing in this article (article 13) shall apply to any amendment made under article 368.
* Due to validity of Article 13(4), even fundamental rights can be amended by Parliament as long as it doesnt alter/amend basic foundation of constitution.
* Thus, amendment under Article 368, means only changes other than altering the basic structure of constitution.
* Minerva Mills Ltd. Vs Union of India: Year 1980
* Due to low productivity, Government took over management of Minerva Mills Ltd under Sick Textiles Understanding (Nationalization) Act 1974. Company questioned validity of this act in Supreme Court.
* SC held that any act of parliament cant take away judicial review as it is basic feature of constitution and there shall be limit to power of parliament to amend the constitution.
* Basic Doctrine initiated by Kesavananda Case was evolved and utilised in this case.
* Parliament cant expand its amending power under Article 368 so as to repeal or abrogate the constitution or any amending act which violates basic structure of it.
* Three articles namely Article 14, 19 and 21 are heaven of freedoms which take precedence over directive principles. Therefore any clause/act prioritising directive principle over these articles is to be void or unconstitutional.
* Maneka Gandhi Vs Union of India: Year 1978
* Maneka Gandhi filed case against Government of India over impounding her passport.
* Before this case, Supreme Court prevailed view that there was no guarantee in constitution against arbitrary legislation encroaching upon personal liberty under Article 21.
* Decision of Government was challenged under violation of Article 14, 19 and 21. Supreme Court said that Article 19 and 21 are not water-tight or alienated components.
* Personal Liberty is not just right to life but it is of wildest amplitude covering variety of basic rights to live with dignity. Due to this definition, there may be overlapping between Article 19 and 21.
* Thus, law must satisfy both article provisions same time. In this case, Governments order violated the principle of natural justice by not giving affected person an opportunity to be heard or represent against the order.
* From this case, Supreme Court enlarged scope of Article 21. It held that right to life as interpreted in Article 21 means something more than survival or animal existence and would include the right to live with human dignity.
* Adopting liberal interpretation the Supreme Court has read several rights in Article 21 to make life more meaningful and worth living.
* SC said isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would defeat very objects of such protection.
* SC based their liberal view of life in Blackstones theory of natural rights. Thus, partiality among natural rights and constitutional rights is not in interest of constitution,
* Since the rule of natural rights is calculated to secure justice, it must be logically applied to quasi-judicial and administrative enquiry.
* SC said that the reasonableness of a restriction depends upon the values of life in a society, the circumstances obtaining at a particular point of time when the restriction is imposed, the degree and the urgency of the evil sought to be controlled.
* S. R. Bommai Vs Union of India Case: Year 1991
* Petition was filed by S R Bommai against Presidency rule proclamation in Karnataka under recommendation of Governor. SC heard this petition along with other petitions filed regarding president rule in different states.
* This case challenged misuse of Article 356 and interpreted Centre-State relations. It refined federal character of constitution.
* After this verdict court may interfere if the proclamation is mala fide or the reasons disclosed for making proclamation have no reasonable nexus with the satisfaction of the President.
* Court said that proclamation must have materialistic basis or essence of relevance of failure of the constitutional machinery.
* SC held that Governors recommendation to proclaim President rule in state alone is not basis of failure of administrative machinery in respective state.
* From this case, SC tactically curtailed misuse of powers of Article 356 and preserve federal character in constitution.
* SC said that if proclamation is invalid on ground of reasonableness or lack of materialistic basis, then even parliament approval to it would not change it into valid order.
* Court held that it will have power by an interim injunction, to restrain the holding of fresh elections to the Legislative Assembly pending the final disposal of the challenge to the validity of the proclamation.
* The views expressed by Supreme Court in this judgement are largely similar to concerns shown by Sarkaria Commission.
By Kunjal Shah
* List of References:
1. Introduction to Constitution of India Author: D D Basu
2. http://www.indiankanoon.org/
3. http://www.thehindu.com/
* Case was about validity of amendment of Punjab Land Security Act 1053 and Mysore Land Reforms Act. Moreover this amendment was included in ninth schedule of constitution by Seventieth Amendment Act, 1964. Petitioners challenged this amendment under Article 32 of constitution. Constitutional Bench comprising of 11 judges headed by then Chief Justice of SC was to decide on whether Fundamental Rights intended to be permanently unamendable.
* Bench with 6-5 pronounced ruling that Amendments to Fundamental Rights are outside purview of Parliament. Constituent Assembly has to be formed in order to change part(s) of Fundamental Rights or Article 368 of Indian Constitution.
* Bench said Fundamental Rights are given transcendental position in Indian Constitution and has been kept out of reach of Parliament. Even during emergency, Article 19 stands to be suspended by Article 358 while all other fundamental rights are available except those specifically suspended by President under Article 359 while proclaiming emergency.
* Article 13 is not source of protection of fundamental rights but is expression of reservation. No matter how well intentioned policy unanimously enacted by Parliament but if it abridges any article residing under Part IIIthen it would be declared as void.
* It is parliaments duty to enforce directive principles policy without affecting ambit of fundamental rights.
* Article 368 merely prescribes procedure for amendment of constitution; it cant be source of power to amend constitution. Article 368 is not itself complete code for amendment procedure.
* In this case, court used doctrine of prospective overruling in which court finds the law; but it doesnt give retroactive effect. Due to this doctrine, judgment pronounced by this bench would only bar future laws aimed to take away fundamental rights; it would not affect validity of Seventieth Amendment, 1964 or any past acts related to infringement of Fundamental Rights.
* Kesavananda Bharati Vs. State of Kerala: Year 1973
* Kesavananda filed case against Kerala states attempt to restrict management of property under its two land reforms acts. This case judgement overruled earlier Golaknath case judgement. It was heard by largest constitutional bench. Judgement was held by 7-6 margin.
* SC held that amendment to constitution is not law itself.
* Important view adopted by SC in this case was parliament could amend any part of constitution unless it didnt alter/amend the basic structure or essential features of constitution.
* During the time when this case was surfaced in Supreme Court, there was culmination of conflict between Judiciary and Government.
* By this landmark judgement Supreme Court came as saviour to constitution from totalitarian encroachment of constitution by Parliament. SC pronounced constitution superior over Parliament.
* Basic Structure Doctrine adopted by SC in this judgement preserved democracy in India.
* Since then, SC adopted Basic Structure Doctrine in subsequent cases.
* Another important proposition adopted by SC is that though preamble isnt part of constitution, basic structure of constitution can be derived from Preamble, Fundamental Rights and Directive Principles.
* Features of Basic Structure Doctrine adopted by SC can be derived from different judgments delivered by court since pronouncement of this doctrine. Basic features are sovereignty and territorial integrity of India, the federal system, judicial review, Parliamentary system of government, Reasonableness, Freedom and Dignity of individual, Fair Election, Secularism, Rule of Law, Equality, Social and Economical Justice, Judicial Review.
* SC also upheld validity of clause (4) of Article 13 and corresponding provision of Article 368(3) which reads as follows: Nothing in this article (article 13) shall apply to any amendment made under article 368.
* Due to validity of Article 13(4), even fundamental rights can be amended by Parliament as long as it doesnt alter/amend basic foundation of constitution.
* Thus, amendment under Article 368, means only changes other than altering the basic structure of constitution.
* Minerva Mills Ltd. Vs Union of India: Year 1980
* Due to low productivity, Government took over management of Minerva Mills Ltd under Sick Textiles Understanding (Nationalization) Act 1974. Company questioned validity of this act in Supreme Court.
* SC held that any act of parliament cant take away judicial review as it is basic feature of constitution and there shall be limit to power of parliament to amend the constitution.
* Basic Doctrine initiated by Kesavananda Case was evolved and utilised in this case.
* Parliament cant expand its amending power under Article 368 so as to repeal or abrogate the constitution or any amending act which violates basic structure of it.
* Three articles namely Article 14, 19 and 21 are heaven of freedoms which take precedence over directive principles. Therefore any clause/act prioritising directive principle over these articles is to be void or unconstitutional.
* Maneka Gandhi Vs Union of India: Year 1978
* Maneka Gandhi filed case against Government of India over impounding her passport.
* Before this case, Supreme Court prevailed view that there was no guarantee in constitution against arbitrary legislation encroaching upon personal liberty under Article 21.
* Decision of Government was challenged under violation of Article 14, 19 and 21. Supreme Court said that Article 19 and 21 are not water-tight or alienated components.
* Personal Liberty is not just right to life but it is of wildest amplitude covering variety of basic rights to live with dignity. Due to this definition, there may be overlapping between Article 19 and 21.
* Thus, law must satisfy both article provisions same time. In this case, Governments order violated the principle of natural justice by not giving affected person an opportunity to be heard or represent against the order.
* From this case, Supreme Court enlarged scope of Article 21. It held that right to life as interpreted in Article 21 means something more than survival or animal existence and would include the right to live with human dignity.
* Adopting liberal interpretation the Supreme Court has read several rights in Article 21 to make life more meaningful and worth living.
* SC said isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would defeat very objects of such protection.
* SC based their liberal view of life in Blackstones theory of natural rights. Thus, partiality among natural rights and constitutional rights is not in interest of constitution,
* Since the rule of natural rights is calculated to secure justice, it must be logically applied to quasi-judicial and administrative enquiry.
* SC said that the reasonableness of a restriction depends upon the values of life in a society, the circumstances obtaining at a particular point of time when the restriction is imposed, the degree and the urgency of the evil sought to be controlled.
* S. R. Bommai Vs Union of India Case: Year 1991
* Petition was filed by S R Bommai against Presidency rule proclamation in Karnataka under recommendation of Governor. SC heard this petition along with other petitions filed regarding president rule in different states.
* This case challenged misuse of Article 356 and interpreted Centre-State relations. It refined federal character of constitution.
* After this verdict court may interfere if the proclamation is mala fide or the reasons disclosed for making proclamation have no reasonable nexus with the satisfaction of the President.
* Court said that proclamation must have materialistic basis or essence of relevance of failure of the constitutional machinery.
* SC held that Governors recommendation to proclaim President rule in state alone is not basis of failure of administrative machinery in respective state.
* From this case, SC tactically curtailed misuse of powers of Article 356 and preserve federal character in constitution.
* SC said that if proclamation is invalid on ground of reasonableness or lack of materialistic basis, then even parliament approval to it would not change it into valid order.
* Court held that it will have power by an interim injunction, to restrain the holding of fresh elections to the Legislative Assembly pending the final disposal of the challenge to the validity of the proclamation.
* The views expressed by Supreme Court in this judgement are largely similar to concerns shown by Sarkaria Commission.
By Kunjal Shah
* List of References:
1. Introduction to Constitution of India Author: D D Basu
2. http://www.indiankanoon.org/
3. http://www.thehindu.com/
117th Constitution Amendment Bill, 2012- Efficiency and adequacy of the
117th Constitution Amendment Bill, 2012- Efficiency and adequacy of the State Administration
Reservation as a concept is very wide. Different people understand reservation to mean different things. One view of reservation as a generic concept is that reservation is anti-poverty measure. There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action.
ON CONCERN OF EFFICIENY/MERIT
The words consistently with the maintenance of efficiency of administration under Article 335 of the Constitution of India are capable of being read differently though have not been so read by the courts so far. In a mixed and diverse society as in India, representation of all sections of society in different walks of life creates an integral and, therefore, efficient society. Accordingly, representation of SC/STs which constitute about 24.4% as per Census 2011 of the total population of the country and whose representation in the State administration is small, if not totally absent, will lead to efficiency in the administration. So, the intention of the constitution makers directed that in consistency with the goal of maintenance of efficiency of administration of SC/STs must be duly represented in the State administration. It may also be argued that active inclusion of about such percentage of population into the category from which the administrators have to be selected creates wider choice must naturally lead to selection of better administrators. Thus the words consistently with the maintenance of efficiency of administration are not the words of limitation but of guidance that in order to ensure maintenance of efficiency of administration the claim of SC/STs must be taken into consideration in making the appointments to services and posts qua the affairs of the Union and the States.
On Nagraj Case and Article 335 of the Constitution
As per the present case, the perquisite under Article 335 is efficiency, though originally it is consistently with the maintenance of efficiency of administration. To understand the very concept efficiency in light of socio-economic empowerment of SC/STs some excerpts from the Nagraj Case are as follows . Article 335 is to be read with Article 46 which provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the scheduled castes and scheduled tribes and shall protect them from social injustice. Therefore, where the State finds compelling interests of backwardness and inadequacy, it may relax the qualifying marks for SCs/STs. These compelling interests however have to be identified by weighty and comparable data.
The Court, however recognizes that, it is for the State concerned to decide in a given case, whether the overall efficiency of the system is affected by such relaxation.in other cases, the State may evolve a mechanism under which efficiency, equity, and justice, all three variables could be accommodated. Further, the Courts admission that determination of efficiency of administration lies with the State is highly supportive of the claims of the SCs and STs under Article 335.
However, it has been observed that there is difficulty in collection of quantifiable/comparable data showing backwardness of the class and inadequacy of representation of that class in public employment. Moreover, there is uncertainty on the methodology of this exercise, due to lack of established common practice to collect such information.
Thus, in the wake of the judgment of the Supreme Court in M. Nagaraj case, the prospects of promotion of the employees belonging to the Scheduled Castes and the Scheduled Tribes are being adversely affected.
In State of U.P. v. Dina Nath Shukla, the Court also observed that Thus Article 335 read with Articles 46, 38 and 16 would give the socio-economic empowerment to the Dalits and Tribes and rule of reservation in the matter of appointment to a service or post under the State is part of the constitutional scheme as a positive facility and opportunity available to them and where it is extended to OBCs., they too get opportunity to strive to improve excellence in a service or a post in which he or she gets appointment.
The proviso to Article 335 i.e. added by the 82nd Constitutional Amendment, 2000, that, ..nothing in this article shall prevent in making any provisions in favor of SC/STs for relaxation in qualifying marks in any examination. Clarifies that for inducting the SC/STs candidates of State services, the required qualification may be relaxed Thus adequate representation is given priority over other considerations as expressly mentioned from time-to-time.
Therefore, it is out of the box to reiterate that the concern of efficiency lies at the heart of objections to quota s in promotion.
When it comes to efficiency especially of the down trodden of the society in India, who are fighting from thousands of years for their rights, should it not be the responsibility of the State to make them efficient. In present scenario, it would not be out of the place to assert that even proportional reservation of 70% for SC/STs would be very much constitutional under Article of 14 of the Constitution.
ON EMPIRICAL BATTLE AND 117TH CONSTITUTIONAL AMENDMENT BILL, 2012
Lets examine the proposed amendment in Article 16 (4A) through 117th Constitutional Amendment Bill, 2012, so the proposed substitution for the later is as follows, (4A) Notwithstanding anything contained elsewhere in the Constitution, the Scheduled Castes and the Scheduled Tribes notified under article 341 and article 342, respectively, shall be deemed to be backward and nothing in this article or in article 335 shall prevent the State from making any provision for reservation in matters of promotions, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes to the extent of the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes in the services of the State..
Once the proposed substitution of Article 16 (4A) will come in to force, it will do away with all perquisites under present Article 16 (4A) of not adequately represented in the services under the state, of efficiency Article 335, and also of Nagraj case. However it doesnt mean that it would violate the principle of equity, justice and efficiency as laid down under Article 14, 16, 335 and others. The proposed amendment seeks to bring more lucidity in the scenario of promotion, seniority and catch up rule prevailed so long in government services.
Gone were the days when Article 16(4) was read by the Honble Supreme Court as an exception to Article 16(1). That controversy got settled in Indra Sawhney v. Union of India case. The words nothing in this Article in Article 16(4) represents a legal device allowing positive discrimination in favour of a class. Therefore, Article 16(4) relates to a class apart. So, on this basis, as much anticipated that the proposed 117th Amendment would not stand the test of validity under basic structure of the constitution on the account of adequate representation and efficiency, it would not be wrong to state it so much valid under the Constitution of India.
(Mr. Manish Raj is B.A. LL B(Hons.) from National Law Institute University and an Ex-Senior Officer(Legal),Coal India Ltd.)
Reservation as a concept is very wide. Different people understand reservation to mean different things. One view of reservation as a generic concept is that reservation is anti-poverty measure. There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action.
ON CONCERN OF EFFICIENY/MERIT
The words consistently with the maintenance of efficiency of administration under Article 335 of the Constitution of India are capable of being read differently though have not been so read by the courts so far. In a mixed and diverse society as in India, representation of all sections of society in different walks of life creates an integral and, therefore, efficient society. Accordingly, representation of SC/STs which constitute about 24.4% as per Census 2011 of the total population of the country and whose representation in the State administration is small, if not totally absent, will lead to efficiency in the administration. So, the intention of the constitution makers directed that in consistency with the goal of maintenance of efficiency of administration of SC/STs must be duly represented in the State administration. It may also be argued that active inclusion of about such percentage of population into the category from which the administrators have to be selected creates wider choice must naturally lead to selection of better administrators. Thus the words consistently with the maintenance of efficiency of administration are not the words of limitation but of guidance that in order to ensure maintenance of efficiency of administration the claim of SC/STs must be taken into consideration in making the appointments to services and posts qua the affairs of the Union and the States.
On Nagraj Case and Article 335 of the Constitution
As per the present case, the perquisite under Article 335 is efficiency, though originally it is consistently with the maintenance of efficiency of administration. To understand the very concept efficiency in light of socio-economic empowerment of SC/STs some excerpts from the Nagraj Case are as follows . Article 335 is to be read with Article 46 which provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the scheduled castes and scheduled tribes and shall protect them from social injustice. Therefore, where the State finds compelling interests of backwardness and inadequacy, it may relax the qualifying marks for SCs/STs. These compelling interests however have to be identified by weighty and comparable data.
The Court, however recognizes that, it is for the State concerned to decide in a given case, whether the overall efficiency of the system is affected by such relaxation.in other cases, the State may evolve a mechanism under which efficiency, equity, and justice, all three variables could be accommodated. Further, the Courts admission that determination of efficiency of administration lies with the State is highly supportive of the claims of the SCs and STs under Article 335.
However, it has been observed that there is difficulty in collection of quantifiable/comparable data showing backwardness of the class and inadequacy of representation of that class in public employment. Moreover, there is uncertainty on the methodology of this exercise, due to lack of established common practice to collect such information.
Thus, in the wake of the judgment of the Supreme Court in M. Nagaraj case, the prospects of promotion of the employees belonging to the Scheduled Castes and the Scheduled Tribes are being adversely affected.
In State of U.P. v. Dina Nath Shukla, the Court also observed that Thus Article 335 read with Articles 46, 38 and 16 would give the socio-economic empowerment to the Dalits and Tribes and rule of reservation in the matter of appointment to a service or post under the State is part of the constitutional scheme as a positive facility and opportunity available to them and where it is extended to OBCs., they too get opportunity to strive to improve excellence in a service or a post in which he or she gets appointment.
The proviso to Article 335 i.e. added by the 82nd Constitutional Amendment, 2000, that, ..nothing in this article shall prevent in making any provisions in favor of SC/STs for relaxation in qualifying marks in any examination. Clarifies that for inducting the SC/STs candidates of State services, the required qualification may be relaxed Thus adequate representation is given priority over other considerations as expressly mentioned from time-to-time.
Therefore, it is out of the box to reiterate that the concern of efficiency lies at the heart of objections to quota s in promotion.
When it comes to efficiency especially of the down trodden of the society in India, who are fighting from thousands of years for their rights, should it not be the responsibility of the State to make them efficient. In present scenario, it would not be out of the place to assert that even proportional reservation of 70% for SC/STs would be very much constitutional under Article of 14 of the Constitution.
ON EMPIRICAL BATTLE AND 117TH CONSTITUTIONAL AMENDMENT BILL, 2012
Lets examine the proposed amendment in Article 16 (4A) through 117th Constitutional Amendment Bill, 2012, so the proposed substitution for the later is as follows, (4A) Notwithstanding anything contained elsewhere in the Constitution, the Scheduled Castes and the Scheduled Tribes notified under article 341 and article 342, respectively, shall be deemed to be backward and nothing in this article or in article 335 shall prevent the State from making any provision for reservation in matters of promotions, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes to the extent of the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes in the services of the State..
Once the proposed substitution of Article 16 (4A) will come in to force, it will do away with all perquisites under present Article 16 (4A) of not adequately represented in the services under the state, of efficiency Article 335, and also of Nagraj case. However it doesnt mean that it would violate the principle of equity, justice and efficiency as laid down under Article 14, 16, 335 and others. The proposed amendment seeks to bring more lucidity in the scenario of promotion, seniority and catch up rule prevailed so long in government services.
Gone were the days when Article 16(4) was read by the Honble Supreme Court as an exception to Article 16(1). That controversy got settled in Indra Sawhney v. Union of India case. The words nothing in this Article in Article 16(4) represents a legal device allowing positive discrimination in favour of a class. Therefore, Article 16(4) relates to a class apart. So, on this basis, as much anticipated that the proposed 117th Amendment would not stand the test of validity under basic structure of the constitution on the account of adequate representation and efficiency, it would not be wrong to state it so much valid under the Constitution of India.
(Mr. Manish Raj is B.A. LL B(Hons.) from National Law Institute University and an Ex-Senior Officer(Legal),Coal India Ltd.)
Death penalty contradicts the core objectives of the criminal justice
Death penalty contradicts the core objectives of the criminal justice system.
The core principles of criminal justice system is to deliver justice for all by convicting and punishing the guilty for his/her offences and helping them stop offending while protecting the innocent. In other words the central purpose of criminal justice system is to deliver efficient, effective and fair justice to the general public. The whole idea of justice is not to punish a person but to provide him sufficient time to reinvent himself and live the rest of his life by positively contributing to the society. Thus, judiciary or justice systems around the world are meant to make people a civilized way of living.
The debate of over death penalty in India are decades old. As per the Indian penal code act 1860 only two crimes are to be given Death penalty viz for murder ( Sec. 302) and waging war against the state. Hence the justice system in India allows for death sentence for crimes committed under these two categories. The supreme court of India has time and against validated the relevance and importance of death penalty with some checks and balances.
But the real question here is whether this barbaric act adheres to the norms of a civilized and progressive society? The answer will be a big NO. There is no place for barbarism in modern civilized society. The famous Italian jurist Cesare Beccaria in his paper An essay on crimes and punishment has made some sparkling points with regards to death penalty. He coined two important concepts on this. One the objective of the death penalty is to deter future commission of crimes and to reform the offender. The first among these objectives has not achieved as of now and the latter is not achievable at all.
The greater question here is whether there is any of empirical evidence to suggest or/ rather prove the mandate for death penalty? As of now, there is no proven evidence to suggest that Death penalty can be an effective deterrent in curbing/reducing any of the crimes anywhere in the world. Statistics do suggest that the crime rates in states where there are no death penalties is lower than that of those having it though on a smaller margin.
It has been shown that in USA where the level of crimes is lower in states where the capital punishment is not a mode of punishment. If we take the case of India where we have capital punishments since our independence suggest the same thing. The crimes rates never reduced in our country. It shows a level of increasing trend in the last two decades especially the number of heinous crimes are on all time high recently.
The SC, in the Bactchan Singh VS State of Punjab, has made some check and balances by bringing the concept of Rarest of the Rare while awarding capital punishment. But, the SC has not proscribed what should be and what ought to be the Rarest of Rare cases. It simply left it to the wisdom of judges .In such cases, we can say that that judgment will subject to the benches which the case goes for hearing. This leaves the chances for subjective and prejudiced judgments which are clearly against the principle of equality which is enshrined in our constitution.
The other issue includes the delay in justice delivery system. As told by Krishna Ayer Justice delayed is justice denied. More than a dozen cases mercy petitions are pending before the president. And also there are lots of cases pending before various judges awaiting judgments. In the recent past the case of Perarivalan and 2 others where the clemency petition was dishonored by the president after 11 years. Isnt a humanitarian approach where these convicts have to undergo mental trauma for the past 11 years? Not only them but their family too underwent the same level of agony in all these time.
The other issue is related to error in the pronouncement of capital punishment by the higher judiciary. As mentioned earlier SC s in the 1983 case where it brought the concept of Rarest of the rare concept has much flaws than merits. In 2012 justice S.B. Sinha and Cyriac joseph retired SC judges has said that there were errors in the judgments of theirs in awarding death sentence to 13 people. Out of the 13 convicts, 2 were already hanged in the due course. They have asked president to look into the matter at the earliest so that any more error may not be committed. It implies the concept of irrecoverability.
Once a life is taken away it is taken away forever and nobody can give back at any time. And if such open admissions of judges continue abated automatically this will lead to a situation where people will take law in their hands an of our democracy.
Nobody in this world is a born criminal. It is the circumstances and the society makes them so. So nobody can ever escape from by simply blaming the criminals. The greater question here is about how to transform the society to be more civilized and and pragmatic??? As rightly pointed out by great father of our nation Mahatma Gandhi An eye for an eye makes the whole world blind.
NAME : SANDEEP.A
REFERENCE : THE HINDU, WIKIPEDIA
The core principles of criminal justice system is to deliver justice for all by convicting and punishing the guilty for his/her offences and helping them stop offending while protecting the innocent. In other words the central purpose of criminal justice system is to deliver efficient, effective and fair justice to the general public. The whole idea of justice is not to punish a person but to provide him sufficient time to reinvent himself and live the rest of his life by positively contributing to the society. Thus, judiciary or justice systems around the world are meant to make people a civilized way of living.
The debate of over death penalty in India are decades old. As per the Indian penal code act 1860 only two crimes are to be given Death penalty viz for murder ( Sec. 302) and waging war against the state. Hence the justice system in India allows for death sentence for crimes committed under these two categories. The supreme court of India has time and against validated the relevance and importance of death penalty with some checks and balances.
But the real question here is whether this barbaric act adheres to the norms of a civilized and progressive society? The answer will be a big NO. There is no place for barbarism in modern civilized society. The famous Italian jurist Cesare Beccaria in his paper An essay on crimes and punishment has made some sparkling points with regards to death penalty. He coined two important concepts on this. One the objective of the death penalty is to deter future commission of crimes and to reform the offender. The first among these objectives has not achieved as of now and the latter is not achievable at all.
The greater question here is whether there is any of empirical evidence to suggest or/ rather prove the mandate for death penalty? As of now, there is no proven evidence to suggest that Death penalty can be an effective deterrent in curbing/reducing any of the crimes anywhere in the world. Statistics do suggest that the crime rates in states where there are no death penalties is lower than that of those having it though on a smaller margin.
It has been shown that in USA where the level of crimes is lower in states where the capital punishment is not a mode of punishment. If we take the case of India where we have capital punishments since our independence suggest the same thing. The crimes rates never reduced in our country. It shows a level of increasing trend in the last two decades especially the number of heinous crimes are on all time high recently.
The SC, in the Bactchan Singh VS State of Punjab, has made some check and balances by bringing the concept of Rarest of the Rare while awarding capital punishment. But, the SC has not proscribed what should be and what ought to be the Rarest of Rare cases. It simply left it to the wisdom of judges .In such cases, we can say that that judgment will subject to the benches which the case goes for hearing. This leaves the chances for subjective and prejudiced judgments which are clearly against the principle of equality which is enshrined in our constitution.
The other issue includes the delay in justice delivery system. As told by Krishna Ayer Justice delayed is justice denied. More than a dozen cases mercy petitions are pending before the president. And also there are lots of cases pending before various judges awaiting judgments. In the recent past the case of Perarivalan and 2 others where the clemency petition was dishonored by the president after 11 years. Isnt a humanitarian approach where these convicts have to undergo mental trauma for the past 11 years? Not only them but their family too underwent the same level of agony in all these time.
The other issue is related to error in the pronouncement of capital punishment by the higher judiciary. As mentioned earlier SC s in the 1983 case where it brought the concept of Rarest of the rare concept has much flaws than merits. In 2012 justice S.B. Sinha and Cyriac joseph retired SC judges has said that there were errors in the judgments of theirs in awarding death sentence to 13 people. Out of the 13 convicts, 2 were already hanged in the due course. They have asked president to look into the matter at the earliest so that any more error may not be committed. It implies the concept of irrecoverability.
Once a life is taken away it is taken away forever and nobody can give back at any time. And if such open admissions of judges continue abated automatically this will lead to a situation where people will take law in their hands an of our democracy.
Nobody in this world is a born criminal. It is the circumstances and the society makes them so. So nobody can ever escape from by simply blaming the criminals. The greater question here is about how to transform the society to be more civilized and and pragmatic??? As rightly pointed out by great father of our nation Mahatma Gandhi An eye for an eye makes the whole world blind.
NAME : SANDEEP.A
REFERENCE : THE HINDU, WIKIPEDIA
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