Thursday, June 21, 2012
Tuesday, June 19, 2012
Editorial, WE THE DISARMED PEOPLE, in LAW ANIMATED WORLD, 15 June 2012 issue, Vol. 8, Part 1, No. 11
WE THE DISARMED PEOPLE
despite the ever-recurrent demand throughout the
national movement to repeal the Arms Act which the British introduced to disarm
and make impotent our nation, have in our ‘wisdom’ chosen neither to repeal
that Act nor to make the right to bear arms peaceably a fundamental right, as it is in the US Constitution. But that does not in
any way deter the ruling classes, elite groups and criminal coteries to strut
around with the show of all force of arms, so much so that every MLA or MP has
or can become a chota nawab with all his
armed gunmen parading at public expense and the trigger happy police too eager
to fire at unarmed people protesting for various reasons at the least
provocation. Traffic is at the whim and fancy of the so-called law enforcers
diverted/stopped to enable such puny princes ride in joy at the cost of time and
money of millions of people – all this is democracy of course with limited
accountability. A learned person seriously contends on a website that right to
bear arms though not specifically inscribed must be, and even is, read into the
fundamental right to life under Article 21, citing some superior courts’
decisions too in support, but this editor is quite skeptical. When even a
licensed revolver bearing citizen could be arrested/charged for firing joy
bullets into air and the law enables or mandates to do so, and obviously that
even without any harm/injury caused to anybody, and despite the existing customs
in many countries, and even in states (like
Bihar/Punjab) of firing into air on festive/joyous occasions {Swaggering young men
shooting into the sky at weddings is part of the popular culture in rural and
small-town Punjab - Tehelka}, then of what avail can this ‘reading into’ Article
21 be? This is not to lend our unqualified support to joy shooting in air but
only to caution that such things have to be tackled more by persuasion/propaganda
about possible/probable harm and injury to people by falling bullets than to
take to hasty and nasty prosecutions to harass the citizens – that too out of
considerations to irk the opposition parties, etc. More important, paying
homage to Sivasagar (Com. SM recently deceased) and admiring his exquisite line that ‘the revolutionary
arming the people is the poet today’ (Prajalanu
sayudham chese revolutionary nedu kavi),
we take this occasion to suggest that the right to bear arms peaceably needs to
be constitutionally guaranteed, if only to undo the historic injustice
perpetrated against us by the British as also to vindicate the fundamental
rights to life and liberty of the people §§§
Monday, June 4, 2012
Editorial, "Pre-trial detention", in 15-31 May 2012 combined issue of LAW ANIMATED WORLD.
PRE-TRIAL DETENTION
has always been, and still is, quite a delicate
matter, with what the well-known Telugu axiom ‘karavamante kappaku
kopam, vidavamante paamuku kopam’ [‘say bite, the frog is angry; say leave, the
snake is sore’] typically applying in this case between the
accused/ suspects and the police/prosecuting agencies. That corruption is
rampant, that the present day rulers, politicians of almost all parties,
bureaucrats, generally all the well-to-do sections of our society have been
primarily responsible for its unchecked growth is a matter widely recognized
and rued. The persons in or aspiring for power have with their enormous clout
and cunning looted the country and amassed lakhs of crores of rupees in their
private coffers, transferring large portions to tax havens abroad. If only a
part of those sums were to be invested for the real human development of the
country, there would be no poverty, ill-health or illiteracy by now. As such
the persons indulging in economic offences need to be strictly dealt with by
the harsh arm of law no doubt, but there should be some reasonable norms of law
even to try and punish such persons, lest the deviation/deprivation in such
cases may spill over to the generality and suppress the liberties and freedoms
of citizens in various other spheres too. In this context, we note that Section
167 of the Criminal Procedure Code 1973 is itself skewed with the original 14
days of pre-trial detention powers of a ‘receiving’ magistrate enlarged up to
60/90 days and the provision for bail not so liberal. ‘Bail is a rule
and jail to be an exception’,
though parroted as salutary in the background of the fundamental principle of
presumption of innocence of an accused until proved guilty, is scarcely applied
in practice. Right to fair trial is not explicitly embodied in but has to be
read into Articles 21 &
22 of our Constitution and the preparation of
proper defence for the accused is hampered in the wake of obscurely worded
provisions. It will do well to appreciate and benefit from the Article 5(3) of the
European Convention on Human Rights which ordains: “Everyone
arrested or detained in accordance with the provisions of … this Article shall
be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time
or to release pending trial. Release
may be conditioned by guarantees to
appear for trial,” and the settled law by the European Court of
Human Rights that release on bail could only be denied on four salient grounds:
(1) danger of accused absconding; (2) his
interfering with the administration of justice (by threatening witnesses, etc.) ; (3) risk of relapse into/repetition of crime
and (4) prejudice to public order, each assessed from time to time as per the
facts and circumstances of each case by an impartial and independent judicial
officer – since without proper freedom and facility to
prepare defence the accused would indeed be denied his right to fair trial and
consequently society in general would suffer. §§§
Thursday, May 3, 2012
Editorial, "Employment Rights." in LAW ANIMATED WORLD, 30 April 2012 issue (Vol. 8, Part 1, No. 8):
EMPLOYMENT RIGHTS
are getting more and more constricted it seems, rather than being
broadened, although we profess the ideal of a democratic socialist republic
assuring social, political and economic justice, together with several
individual liberties, to the people, at least on the paper of our Constitution.
Though the Industrial Disputes Act 1947, as amended from time to time, is
stated to be a social welfare legislation, made mainly to aid the working
classes, basically its aim and object are declared as achieving industrial
peace and creating a congenial climate to both the employers and workers.
Also its scope is circumscribed since it only applies to the workmen as
defined therein but not to all employees. It gives the workers several
employment rights no doubt, but it is not an employment rights law
proper. The remedial mechanisms created thereby are not amply efficient
or broad in scope; the labour courts are not even declared to be courts
proper, though high level judicial officers are sought to be placed as
presiding officers. The greatest drawback is that even the workmen cannot
directly approach the industrial tribunals/labour courts for many
grievances but at the same time their approach to civil courts is subtly
barred citing these very tribunals/labor courts as effective alternative
remedies! In contrast, we find the government employees, doubtless a
‘creamy layer’ among the employees, accorded Administrative Tribunals
to which they can directly take their grievances on sundry matters – even
such ones as stoppage of increments. It is really a strange type of socialism
and social welfare measures prevailing in India, like relatively fat-salaried
govt. employees being accorded concession bus passes at Rs. 200-300 per
month while general workers/self-employed poor with low wages of 2000-
5000 p.m. are constrained to buy bus passes at Rs. 400-500 p.m., to cite just
one example. On the eve of May Day we desire and suggest that people
demand and fight for a change in such a woeful state of affairs and achieve
a sound employment rights law with broad-in-scope, powerful labor courts
for effective and expeditious redress of their many grievances. §§§
Editorial in LAW ANIMATED WOLD, 15 April 2012 issue: "RIGHT TO EDUCATION"
RIGHT TO EDUCATION
is, doubtless, an inalienable part of the right
to life of human beings in society, and it has been so recognized by various
national and international covenants and basic laws. It was the Mohini Jain decision
of the early 1990’s which, for the first time, breathed this right into the
right to life guaranteed by Article 21 of our Constitution but, sadly, it has
been reversed by a later larger bench of the Apex Court. Coming just a year
later, the Unnikrishnan decision struck a via media by recognizing the
need for free or affordable higher education to the economically weaker and
deprived sections and allotting them at least 50% of ‘free’ seats in all
private colleges, which did contribute to stem the tide of trading in education
to a considerable extent. However, coming about a decade later, the TMA Pai
Foundation decision by thirteen heads of justice has unfortunately reversed
the trend of catering to the weal and woe of the ‘wretched of the earth’ by
putting a firm stamp of approval on the almost indiscriminate commercialization
of education that began to run full speed in the recent phase of capitalist
globalization. The damaging effects of this deplorable decision are there to be
seen not only in the sphere of higher education but even in the field of
primary education. It may be noted that soon after this TMA Pai decision,
free and compulsory primary education to all children of 6-14 years age
was made a fundamental right by bringing a new Article 21-A into our
Constitution. The recent Apex Court decision validating the RTE Act passed by
the Parliament in pursuance of Article 21A, which directs private educational
institutions also to share the burden, to some extent, of rendering free
education to the children, is being hailed as a blow for the rights of
children, especially of the weaker sections. But the point remains that it is
not just some but all children, i.e. each and every child, that are
entitled to the benefit of this basic right. In this context, the very
privatization of primary education comes up for questioning; and it seems the
sooner it is done away with and replaced by a caring and efficient public education
system the better §§§
Sunday, April 1, 2012
Editorial, "Exonerate our Freedom Fighters", in LAW ANIMATED WORLD, 15-31 March 2012 Martyrs Memorial Special issue, Vol. 8, Part 1: Nos. 5-6
Exonerate our freedom fighters
our State and our Courts MUST, particularly those like Tilak and Bhagat Singh and his comrades who were convicted of supposedly grave state offences, especially when almost all of us Indians day in and day out profess our love and respect towards them and even several persons running the State and presiding the Courts exhort the people to emulate their virtues. I mean to say and ask – when a colonial government was fought tooth and nail, in both non-violent and violent ways, shedding the blood and sacrificing the lives of thousands of the best sons and daughters of the country, how can the stigma of criminal liability and convictions be allowed to remain, marring their images? Years back, when this journal was first started as occasional bulletins, we have brought to the attention of our readers two such salient developments in France where the highest authorities not only exonerated Dreyfus but also apologised for having convicted and subjected him to rights violations and unjust punishments. French President Jacques Chirac apologising well after a century exonerating Dreyfus and applauding the great writer Emile Zola for his thundering J’accuse… protest letter, clearly admitted that “it was a dark stain that was unworthy of our country and our history, a colossal judicial error and a shameful State compromise!” Likewise the French General Thomas Lally – whose cause the great Voltaire assiduously, but in vain, espoused, and who was unjustly executed – was exonerated by the French Army after 163 years. Back home we find Tilak being deliberately and unjustly sentenced to six years transportation [implemented by incarcerating him in Mandalay Jail] on a dubious charge under the notorious section 124A IPC by a picked jury with a European majority and with all the Indian gentlemen of the jury opposed to the verdict - was it not a stark judicial error and shameless state excess. Bhagat Singh and others were convicted by a Tribunal set up by a special Ordinance of the Viceroy under his emergency powers, as a Bill for such a law was rejected by the Central Legislative Assembly, and per procedure which allowed for the absence of the accused at trial and denied them right of cross-examination of scores of witnesses. Such ignominious state and judicial atrocities need to be properly atoned for, at least now, by our legislatures and superior courts. No use or meaning in just conducting workshops and exhibitions of the trials of these great heroes of the nation but not exonerating them duly and fully §§§
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