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 §§§

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. §§§

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 §§§

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 §§§

LAW ANIMATED WORLD, 15-31 March 2012 Martyrs Memorial Special issue Title page photos

LAW ANIMATED WORLD

Editorial, 'RIGHTS OF MOTHER EARTH', in LAW ANIMATED WORLD, Vol. 8, Part 1, No. 4, 29 February 2012 issue

RIGHTS OF MOTHER EARTH

can never be, ought never to be, compromised. If for any reasons that happens, it will be a catastrophe for human society. Our much-vaunted ages-old anthropocentric approach, particularly the individual-greed-fosters-social-progress theories and practices of rabid exploitative and capitalist cultures, has only spelt doom and spread environmental degradation, fall in quality of life of the overwhelming majority of the human species amidst the luxuries and orgies of an insignificant minority of exploiters and parasites – involving extinction of numerous bio-species, nasty pollution, climate change and other calamitous consequences. However, rays of hope were not failing even in such gloom and a sort of relief could be and is felt by the sprouting and strengthening of green groups and communities all over the world, committed to restoring and enriching the eco-balance, especially in Latin America with what Ecuador enshrining ‘Panchmama’ Rights in its constitution and Bolivia hosting a world peoples’ conference resolving for a Universal Declaration of Rights of Mother Earth and taking that cause onto the United Nations. Now that a global campaign for getting such Universal Declaration of Nature Rights passed, and implemented in earnest, is picking up momentum, eco-lovers everywhere, including people like us in India, were also quite happy that at last satyameva jayate (truth will prevail). But now we are all aghast at the stupendous stupidity of our Supreme Court in not only putting its stamp of approval to the ‘millennial folly’ of the wild and pernicious scheme of interlinking of Indian rivers but also giving certain directions to monitor its implementation! Not only the Apex Court seems to be unaware of the eco-destruction already caused by some such projects the world over, also of the several eco-protective international developments and the persistent campaigns of the United Nations, but also brusquely brushing aside such considerations, being itself swept off by the nasty gales of capitalist globalization now causing havoc in human conditions and relations. Truly, the Court is overstepping its limits and acting à la King Canute! §§§