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Wednesday, November 28, 2012

Rule of Law absent! India ranks 78th among 97 countries in guaranteeing access to all civil justice!

Rule of Law absent! India ranks 78th among 97 countries in guaranteeing access to all civil justice!

Indian Holocaust My Father`s Life and Time, Chapter: Nine Hundred Twenty Nine
Palash Biswas

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Skype ID: palash.biswas44


Rule of Law remains absent in India despite the claim of inclusive growth!It is shame that India ranks 78th among 97 countries in guaranteeing access to all civil justice, a latest report released today said, while its neighbouring country Sri Lanka leads the South Asian nations in most dimensions of the rule of law.Digital biometric citizenship is being misused to strengthen the apartheid hegemony to sustain manusmriti rule.India is considered a well-established democracy. Looking back, it has been a momentous journey  since  Independence in 1947 and adoption of the Constitution on January 26, 1950. Yet, the Indian democracy has not fructified. Its constitutional goals and democratic aspirations remain unrealised.The right to equality before the law, often phrased as 'equal protection of the law', is fundamental to any just and democratic society. Rich or poor, majority or minority, political ally of the State or its opponent—all are entitled to equal protection before the law.Ironically, India is running blind to become the number one economy excluding the majority population and declaring war against aborigin indigenous humanscape, practicing genocide culture against agrarian India and its underclasses, whereas Robust economies have strong rule of law with impartial rule-enforcing authorities. When the rule of law suffers, it is business that feels the maximum impact.After all, trade thrives in stable conditions and the rule of law contributes to the stability of a society in a big way; this is all the more true in the context of international trade.As we know that  India is a country based on 'Rule of Law'. In such a society, all citizens are supposed to be equal before the law. The law is supposed to be the same for the rulers and the ruled; for those who govern as well as for the citizens. In fact, every government authority is required to ensure that while exercising its powers it acts strictly in accordance with law. In the words of Henry Horbaczewski, senior vice president and general counsel, Reed Elsevier, "The Rule of Law can generate economic reform and unlock the social, political and economic potential that exists in societies."

On 2 November 2012, Ms. Irom Sharmila Chanu, a Manipuri poet, will completed twelve years of hunger strike demanding the repeal ofArmed Forces Special Powers Act (AFSPA) in Manipur.

Arundhati Roy: Resistance to India's Militarized State

AlJazeera English broadcast "Faultlines" interviews Indian author Arundhati Roy.
""The Gandhian ethos is a very frightening ethos in the forest; because the Gandhian ethos requires… performance that requires an audience, you know. And in the forest, there's no audience… in a society that doesn't belong to the rest of society. How do hungry people go on a hunger strike? How do people who don't have any money not pay their taxes or do civil disobedience?"
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 I have been insisting again and again that the global order runs in acordance with religious nationalism. The state is represented by the hegemony only. India lags behind to ensure civil society as majority population is excluded. This exclusion ensures the exclusive growth of corpoarte and capitalist system.The exclusion roots deep into the religious nationalism which got momentum with free maket economy.But the FDI crusaders have to say nothing against the hegemony rather they do every possible thing to sustain manusmriti rule. Monopolistic aggression against Indian indigenous people is the only agenda for which citizesnhip act is amended and UID project launched. It would further justify the exclusion. But no politician dares to oppose either citizenship amendment act or the most illegal draconian UID project. Indian politics favours the militarisation of state. India is the greatest expender in the global weapon market all on the name of nation and internal security. While the military power is used aganst its own people.Indian Opposition has done nothing to repeal the armed force special power act!Social justice is limited within political reservation only and it further boosts caste identity.The parliament seems not to bother about the rule of law, nor it does care for the constitutional provisions for equality and social justice, fundamental rights and human rights. The Parliament is being misused as the forum of corporate lobbying where the real issues have not to be addressed at all.Meanwhile, The discussions for ending the logjam in Parliament continued on Wednesday as the Parliamentary Affairs Minister Kamal Nath met Opposition leaders of the Lok Sabha and Rajya Sabha, Sushma Swaraj and Arun Jaitley.The Government had indicated on Tuesday that it was willing to debate the issue with voting. Nath said the Chairman of the Rajya Sabha and the Speaker of Lok Sabha could decide the format of the debate. Swaraj said the Opposition had not come down from its demand for voting on FDI in retail. The Government's main worry is the wording of the motion, as it believes that the policy decisions cannot be voted in Parliament. A final decision is likely to be announced on Saturday.

The 'Rule of Law Index 2012' report by World Justice Project's provides country-by-country scores and rankings for eight areas of the rule of law.Even though the Indian democracy has withstood  six decades of social, economic, political challenges, including an 18-month long State of Emergency, the  challenge to its democratic governance persists. Simply put, "The rule of law" does not prevail in India. In fact, threats to the rule of law are relentlessly subverting  Indian democracy and imperilling its system of governance in the country. Against this background, can we really say that India is a society based on rule of law? In theory, yes; but, in practice, only the common man has to follow the law, while the government, political leaders and people designated as VIPs are beyond the realm of law. The Union Budget indicated that if the government is not happy with a judicial verdict, it can just change the inconvenient law with retrospective effect, leaving the affected citizens in the lurch with unexpected losses on hand. Maybe in certain situations retrospective amendments can be justified, but how does one justify the conduct of some of the law-makers themselves?

It has been proved beyond doubt that social and economic progress achieved by developed democratic societies  is  directly the result of  their vigilant protection  and  enforcement of  the rule of law.

India, the report said, has a robust system of checks and balances (ranked thirty-seventh worldwide and second among lower middle income countries), an independent judiciary, strong protections for freedom of speech, and a relatively open government (ranking fiftieth globally and fourth among lower-middle income countries).

"Administrative agencies do not perform well (ranking 79th) and the civil court system ranks poorly (ranking 78) mainly because of deficiencies in the areas of court congestion, enforcement, and delays in processing cases," the report said.

"Corruption is a significant problem (ranking 83rd), and police discrimination and abuses are not unusual. Order and security – including crime, civil conflict, and political violence – is a serious concern (ranked second lowest in the world)," the report observed.

According to the report, Sri Lanka outperforms its regional peers in all but two dimensions of the rule of law.

"The country also outpaces most lower-middle income countries in several areas, ranking second in criminal justice, and third in the dimensions of open government, effective regulatory enforcement, and absence of corruption," it said.

"On the other hand, violence and human rights violations related to the legacy of a protracted civil conflict are

serious problems," the report said.

Pakistan shows weaknesses in most dimensions when compared to its regional and income group peers, the report said.

"Low levels of government accountability are compounded by the prevalence of corruption, a weak justice system, and a poor security situation, particularly related to terrorism and crime," it said, adding that Pakistan scores more strongly on judicial independence and fairness in administrative proceedings.

The expression 'Rule of Law' has been derived from the French phrase 'la principle de legalite', i.e. a Government based on the principles of law. In simpplied by the state in the administration of justice. The Rule of law, according to Gamer, is of en used simply to describe the state le words, the term 'rule of law' indicates the state of affairs in a country where, in main, the law mules. Law may be taken to mean mainly a rule or principle which governs the external actions of the human beings and which is recognised and apof affairs in a country where, in main, the law is observed and order is kept. It is an expression synonymous with law and order.

The basis of Administrative Law is the 'Doctrine of the Rule of Law'. It was expounded for the first time by Sri Edward Coke, and was developed by Prof. A.V.Diccy in his book 'The law of the Constitution' published in 1885. According Coke, in a battle against King, he should be under God and the Lank thereby the Supremacy of Law is established.

Dicey regarded rule of law as the bedrock of the British Legal System:. 'Fins doctrine is accepted in the constitutions of U.S.A. and India.

According to Prof. Diccy, rules of law contains three principles or it has three meanings as stated below:

1. Supremacy of or the Firs( meaning of the Rule of Law.

2. Equality before Law or the Second meaning of the Rule of Law: and

3. Predominance of Legal Spirit or the Third meaning of the Rule of Lim.

1. Supremacy of Law: The First meaning of the Rule of Law is that 'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. It implies that a man may be punished for .a breach of law. but cannot be punished for anything else. No man can be punished except for a breach of law. An alleged offence is required to be proved before the ordinary courts in accordance with the ordinary procedure.
2. Equality before Law:- The Second meaning of the Rule of Law is that no man is above law. Every man whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

Prof. Dicey states That, there must be equality before the law or equal subjection of all classes to the ordinary law of the land. He criticised the French legal system of droit Administrative in which there were separate administrative tribunals for deciding the cases of State Officials and citizens separately. He criticises such system as negation of law

3. Predominance of Legal Spirit: - The Third meaning of the rule of law is that the general principles of the constitution are the result of juridical decisions determining file rights of private persons in particular cases brought before the Court.

Dicey states that many constitutions of the states (countries) guarantee their citizens certain rights (fundamental or human or basic rights) such as right to personal liberty, freedom from arrest etc. According to him. documentary guarantee of such rights is not enough. Such rights can be made available to the citizens only when they are properly enforceable in the Courts of law, For Instance, in England there is no written constitution and such rights are the result judicial decision.

Application of the Doctrine in England: Though, there is no written constitution, the rule of law is applied in concrete cases. In England, the Courts are the guarantors of the individual rights. Rule of law establishes an effective control over the executive and administrative power.

However, Dicey's rule of law was not accepted in full in England. In those days, many statutes allowed priority of administrative power in many cases, and the same was not challenged better c the Courts. Further sovereign immunity existed on the ground of King can do no wrong'. The sovereign immunity was abolished by the 'Crown Proceedings Act, 1947. Prof. Dicey could not distinguish arbitrary power from discretionary power, and failed to understand the merits of French legal system.

Rule of Law under the Constitution of India:- The doctrine of Rule of Law has been adopted in Indian Constitution. The ideals of the Constitution, justice. liberty and equality are enshrined (embodied) in the preamble.

The Constitution of India has been made the supreme law of the country and other laws arc required to be in conformity with the Constitution. Any law which is found in violation of any provision of the Constitution is declared invalid.

Part III of the Constitution of India guarantees the Fundamental Rights. Article 13(l) of the Constitution makes it clear that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provision of Part ill dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be void. Article 13(2) provides that the State should not make any law which takes away or abridges the fundamental rights and any law made in contravention of this clause shall, to the extent of the contravention, be void. The Constitution guarantees equality before law and equal protection of laws. Article 21 guarantees right to life and personal liberty. It provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 19 (1) (a) guarantees the third principle of rule of law (freedom of such and expression).

Article 19 guarantees six Fundamental Freedoms to the citizens of India -- freedom of speech and expression, freedom of assembly, freedom to form associations or unions, freedom to live in any part of the territory of India and freedom of profession, occupation, trade or business. The right to these freedoms is not absolute, but subject to the reasonable restrictions which may be imposed by the State.

Article 20(1) provides that no person shall he convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence not be subject to a penalty greater than that which might have been inflicted tinder the law in for cc at the time of the commission of the offence. According to Article 20(2), no person shall be prosecuted and punished for the same offence more than once. Article 20(3) makes it clear that no person accused of the offence shall be compelled to be witness against himself. In India, Constitution is supreme and the three organs of the Government viz. Legislature, Executive and judiciary are subordinate to it. The Constitution provided for encroachment of one organ (E.g.: Judiciary) upon another (E.g.: Legislature) if its action is mala fide, as the citizen (individual) can challenge under Article 32 of the Constitution.

In India, the meaning of rule of law has been much expanded. It is regarded as a part of the basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by Parliament. It is also regarded as a part of natural justice.

In Kesavanda Bharti vs. State of Kerala (1973) - The Supreme Court enunciated the rule of law as one of the most important aspects of the doctrine of basic structure.

In Menaka Gandhi vs. Union of India, AIR 1978 SC 597 - The Supreme Court declared that Article 14 strikes against arbitrariness.

In Indira Gandhi Nehru vs. Raj Narahr, Alit 1975 SC 2299 - Article 329-A was inserted in the Constitution under 39th amendment, which provided certain immunities to the election of office of Prime Minister from judicial review. The Supreme Court declared Article 329-A as invalid since it abridges the basic structure of the Constitution.

In A.D.M Jabalpur vs. ,Shivakant Shukla (1976) 2 SCC 521 AIR 1976 SC 1207 - This case is popularly known as Habeas Corpus Case.

On 25th June, emergency was proclaimed under Article 359. Large number of persons was arrested under N11SA (Maintenance of Internal Security Act. 1971) without informing the grounds for arrest. Some of there filed petition in various high Courts for writ of Heabeas Corpus. The petitioners contend that their detention is violation of Article 21. It was argued on the other side that the protection tinder Article 21 is not available (suspended) during emergency. The preliminary objection (not to file writ petitions during emergency). The Preliminary objection (not to file writ petitions during emergeyc) was rejected by various High Courts. The Madhya Pradesh Government through Additional District Magistrate. Jabalpur and Government of India filed appeals before Supreme Court.

The question before Supreme Court was, whether there was any rule of law in India apart front Article 21 of the Constitution. The Supreme Court by majority held that there is no rule of law other than the constitutional rule of law. Article 21 is our rule of law. If it is suspended, there is not rule of law.

Cash Transfer Opposed

The Opposition, meanwhile, continued to put pressure on the Centre for a discussion on the Unique Identification Authority of India Bill in Parliament before implementing the direct cash transfer scheme. The issue is likely to be raised in Parliament by the Opposition on Thursday.

BJP leader Prakash Javadekar said not even Re 1 extra money was being given to the beneficiaries. "They are changing the way of delivering the same subsidy," he said, and added that four lakh villages do not have banks and covering them by business correspondents requires a lot of planning.

"Most poor people still do not have Aadhaar cards," he added.
Plea for debate

The CPI(M) said the Government was not just moving away from subsidies, but from the poor people, too.

"Rs 5 lakh crore was being given as subsidies to big corporates as tax breaks etc," CPI(M) leader Brinda Karat said and added that there should be a debate on the UIDAI Bill in Parliament.

A statement by the CPI(M) Polit Bureau said the scheme was meant to actually cut subsidies since the cash to be transferred would not cover the increased costs of the same amount of subsidised foodgrains.

"This will have an adverse impact on increasing malnutrition and hunger," the statement added. The CPI(M) also objected to linking MNREGA wages to the Aadhaar cards.

"Without any discussion in Parliament on the proposed Bill for UID, pushing through such changes will have far-reaching implications for manual workers," it added.

Land acquisition and corruption will be among a string of issues to be highlighted by Arvind Kejriwal's Aam Aadmi Party ( AAP), which today described the UPA government's decision to launch direct cash transfer scheme as a "bribe to voters".

After a two-day meeting of AAP's National Executive which took several decisions about future plans, Kejriwal also said the expose on corruption will continue even as it will target price rise and power issue in the national capital.

Commenting on the cash transfer scheme, he said the scheme may end up in stopping "some leakages" but on several counts it is not desirable.

"The timing is questionable. This is a way of giving bribe to voters," he told reporters when asked about the government's decision to launch its new flagship programme of direct cash transfer from January 1 next year.

Though it would stop some leakages, he said the decision raises several questions.

He said the rationale is wrong in ending public distribution system and giving cash to people. "You end ration and give them cash. This does not take into account price rise," he said.

On the issues to be taken by his party, Kejriwal said land acquisition, corruption, ensuring fair price for farmers, labour issues, including that of contract labour, will be high on priority. "In Delhi, we will raise price rise and power related issues," he said.

Kejriwal said the party will form district committees in 337 districts of the 15 states by January 26 and committees at state-level by mid-February. The formation of district committees will be taken up after January 26.

National Executive member Gopal Rai said from December 10, the party will reach out to every household in the capital seeking their response on various issues. "We will start our Jan Sampark programme from December 10," he said.

The National Executive also formed a Political Affairs Committee in which Kejriwal, Manish Sisodia, Sanjay Singh, Yogendra Yadav, Illyas Azmi, Gopal Rai and Prashant Bhushan are members.

It also decided that Sisodia and Anand Kumar will be the chief spokespersons for the party while Yadav and Kumar will also coordinate with 25 sub-committees which are looking into various subjects.

On 26/11, AFSPA and Mein Tera Khun Pi Jaounga Mentality
By Angomcha Bimol Akoijam
Terror is no prerogative of a handful dehumanized individuals or fanatics or non-state entities. Modern states and their hegemonic narratives and practices do claim on the territory of terror as well. Playing with the normative and institutional mechanisms of a civilized human existence, terror perpetrated and perpetuated by forces from all sides has come to rule our contemporary life. For instance, the state as an institution that, as Weber puts it, 'claims the monopoly of the legitimate use of physical force' has come to increasingly claim on the 'illegitimate use' of physical force as well. In that, it comes as more than a coincidence that just as 9/11, 2001 drew the attention of the global audience to the terror of some, some of us have also been reminded of the terror that was formally inaugurated on 9//11, 1958 as the President of the largest democracy sanctioned the notorious Armed Forces Special Powers as a 'law'.  
26/11: The Mumbai Spectacle

Thinking about the anniversary of 26/11, I can't help but to imagine those civilians who lost their lives in the hands of illegitimate violence of those who sought to expand the sphere of war that they thought or think they were/are carrying out for whatever reasons to civilian spaces and deliberately target unarmed and innocent civilians. I can't help but sense how those innocent civilians must have felt then and the trauma that their near and dear ones must have gone through then and for that matter now.

It also reminds me of the tragically comical responses of the mighty Indian State as it deployed all sorts of security agencies, from local police to paramilitary forces to regular military and its elite forces, to deal with a few men who assaulted on not only the civilians but also civilized norms.

I also remember the senseless euphoria, amidst those myriads of security forces which scrambled and sweated out to take charge of the situation, as the media had turned the tragic incident into an 'eventful spectacle' for a population who consumed a dose of "nationalistic" emotions that camouflaged how ill-equipped and disturbing were the responses to the assault.

Incidentally, the majority of the folks in this country seemed to have suddenly discovered only then on 26/11 that their policemen were using outdated weapons (such as 303 riffles), despite having seen and lived with those policemen day in day out!

To these people, the possibility of looking at those civilians who died on 26/11 as victims of not only the assault by those criminals but also due to the ensuing confrontation between them and (the responses of) the security forces will never occur. In fact, such a thought will come to them as 'un-patriotic', if not seen by them as something that belongs to propaganda of the traitors and enemy. Established norms of a democratic polity which seeks to account for the nature and consequences of the forces deployed by the state agencies, which followed such operation in other western democracies,  will be lost in a melodramatic ethos of `mein tera khun pi jaunga`.

Indeed, 26/11 once again reminds me of the saying that modern ideology, including liberal democracy, is 'skin deep in South Asia'. Thus, 'rule of law' as 'institutional restraints on power' under a liberal democratic polity does not matter much in this country in which 'Government' is translated as 'Sarkar'. Didn't some say, India, as a colonial state, is a 'garrison state', and that there is continuity between the 'colonial' and 'postcolonial' state in South Asia? As such, this country has a police force, which was established by the colonial rulers to primarily protect the ruler ('regime') rather than the citizens, continue to remain more or less the same as it operates under the rules set up by the colonial masters (e.g., Police Act of 1861, IPC etc).

In fact, the issue of equipping the agencies of the state that exercise state violence so as to make them function effectively and efficiently without subverting the normative and institutional imperatives of a democratic polity is not a part of the general consciousness or orientation. Thus, in this country, 'special' police/force or law primarily means to allow the exercise of state violence free from the imperatives of restraints demanded by the normative and institutional mechanisms of a democratic polity.

26/11: A Reminder of AFSPA

In this sense, 26/11 brings to me these issues that have troubled one's conscience which is deeply connected with the issues that the notorious AFSPA implicates.

It reminds me again that to fight 'proxy war' (of which 26/11 seemed to be an obvious example), one doesn't require AFSPA. If 'proxy war' by an enemy country against India and extortions etc were the reasons for this Act to operate, Mumbai and many other places would have been under this Act.

The fact is, this legislation doesn't have words like 'insurgent' or 'terrorists' or any definition that come close to these words in it. In fact, AFSPA does not target the so-called 'insurgents' or 'terrorist'; it targets an entire population who reside in a 'disturbed area'. Under this Act, any resident in the 'disturbed area' can be picked up or questioned or imposed restriction on her/his freedom of movement or killed. If a citizen survives this assault on her or his fundamental rights (including 'Right to Life'), it is the 'decision' of the military personnel who operate under the Act; for the AFSPA gives that power to 'decide' to, not the Court or any civilian authority but, armed men and women of the military!

One is made to believe that AFSPA is invoked because of the 'armed rebellion' (or armed insurgency) that threatens the security of the nation or that there is a 'low intensity conflict' (that the army is required shows that the conflict is an 'armed conflict') in these areas wherein the AFSPA has been invoked.

However, when the Supreme Court upheld such a law as 'constitutional', it categorically says that there is no material on record to show that the 'disturbed condition' is due to 'armed rebellion'! Not only that, the judgment goes on to insist that the condition does not constitute a 'threat' to the 'security of the nation' as envisaged in Article 352 of the Constitution! Incidentally, had the Supreme Court acknowledged that the condition was 'due to armed rebellion' and it threatened the 'national security', the AFSPA would have been clearly unconstitutional as it bypassed Article 352 (a provision which says that if the national security is under threat due to 'armed rebellion', emergency must be declared) that allowed the deployment of special measures, including military violence, which are accountable to the democratic institutions such as the Parliament. Ingenuity of the Indian State and its cultural moorings of 'argumentative' character have allowed the AFSPA to escape such forms of institutional accountability.

Correspondingly, on the other hand, the Government of India has never acknowledged officially that there is an 'armed conflict' (of non-international kind) in the areas wherein the AFSPA has been invoked!

This brings us to some a crucial question: If (a) AFSPA doesn't deal with 'terrorism' or 'insurgency' (there is whatsoever no definition of these words in the Act), (b) crucial spaces in this country (like metropolitan cities) which are under the threat of 'proxy war' by an enemy country are not under AFSPA, (c) the 'disturbed condition' wherein the Act has been invoked is not due to 'armed rebellion', and (d) the Government of India has never said that there is an 'armed conflict' in these places, then why use state violence with 'special' measures that free the violence of the state from the normative and institutional accountability under its democratic polity? To think of it, this is a political question, not a legal one. And it is not a central concern of mechanism for addressing grievances of human right abuses either.

These are issues that people must think of when they fight against 'terror' or AFSPA. But then, 26/11 reminds me of the fact that reasons and facts and democratic ethos and its imperatives do not matter much in this country. What matters most is the sense and sensibility of melodramatic emotions that feed, and is fed by, some kind of nationalism, which, in turn, unfortunately continues to subvert the democratic polity in this country. And in a similar sense, a 'projectization' of the movement against AFSPA, largely driven by a legalistic take on the same, has allowed the terror of AFSPA to continue. Sooner we realize this, better it will be for all of us.

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