Saturday, October 25, 2008

On Section 124A of the IPC and Sedition... Time to scrap that...

The series of arrests, first of MDMK leaders Vaiko and M.Kannappan and of film makers Seeman and Ameer have foregrounded the existence of Section 124A of the Indian Penal Code (IPC) once again. And in a sense, here is an occasion to debate on whether this section must remain in the penal code at all.

It may be mere coincidence that in all standard texts on the IPC, the footnotes under this section are replete with one case law. It pertains to a trial, under this provision, that took place as early as in 1897: Bal Gangadhar Tilak [(1897) 22 Bom. 112]. Tilak was tried under the same section once again in 1908; [(1908) 10 Bom. LR 848].

Tilak pleaded innocent on both the occasions. But then, he was sentenced to six months’ imprisonment on the first instance and on the subsequent occasion in 1908, Tilak was deported to Burma for a six year period. The case, on both occasions, were based on Tilak’s articles in Kesari and considered seditious by the British authorities. Tilak was punished, as Justice M.C.Chagla, one of independent India’s fearless jurists put it: ``He was sentenced for the crime of patriotism. He was sentenced because he loved his country more than his life of his liberty’’. These were Justice Chagla’s words while unveiling a marble tablet in Tilak’s memory outside the central court room where Tilak was tried on both the occasions) in the Bombay High Court.

Section 124A was invoked once again in March 1922. The accused this time was M.K.Gandhi and Shankarlal Banker was co-accused. The trial, held at the Government Circuit House at Ahmedabad heavily guarded for that purpose, on March 18, 1922, ended in the Judge, Mr. Justice Robert Broomfield, sentencing Gandhi to six years’ imprisonment. Co-accused in the case, Mr. Banker, was sentenced for one years’s imprisonment and a fine. The case was based on a series of articles that Gandhi wrote in Young India between March 1921 and February 1922 that were held as seditious by the authorities; Banker was tried because he published Young India.

Gandhi did not plead innocent. His written statement contained the following sentence: ``I hold it to be a virtue to be disaffected towards a Government which in its totality has done more harm to India than any previous system’’. And he concluded his arguments by seeking the judge to inflict the ``severest penalty’’. Judge Broomfield, relied on the earlier judgments in the trial of Tilak, in this case. Soon after he pronounced the sentence, Gandhi stood up to say that he regarded it as the ``proudest privilege and honour’’ to be associated with the well revered name of Tilak.

That was the last occasion when the British authorities ever put the Mahatma on trial. On all subsequent occasions, Gandhi was put in jail without trial!

The point behind recalling these now is not to place Vaiko, Kannappan, Seeman and Ameer in the same league as Tilak and Gandhi. It is, instead, intended to bring out the argument that Section 124A was the most important among the provisions that were intended to suppress all those who spoke against the amoral and the illegitimate colonial administration.

In other words, such a penal provision was necessary to sustain a regime that was undemocratic in its structure and rooted in principles of un-freedom so that it could facilitate the exploitation of the people in the colony and their resources to shore up the surplus in the metropolitan. An exploitative order, based on an unjust principle, cannot be sustained, even in the medium term, without resort to undemocratic and illegitimate laws. Such sections as 124A, hence, were inevitable to sustain the colonial regime.

This, certainly is not necessary in a democratic regime that draws its legitimacy from the fact that its exists for the welfare of its own people. And where the people and their aspirations are the basis of the existence of a regime, there is no such need, for the regime, to feel threatened by dissent.

It is worthwhile in this context to examine, in brief, the instances when the judiciary, in its own way, sought to make this point. The trend began as early as in 1946 when a Judge in the Nagpur Bench held that; ``It is not sedition merely to criticize Government however bitterly or forcibly that may be done, or to seek its overthrow by Constitutional means in order that another Government, equally Constitutional, may be substituted in its place in a Constitutional way. It becomes sedition only when the intention or the attempt is to induce people to cease to obey the law and to cease to uphold lawful authorities’’ [Bhagwati Charan Shukla vs Provincial Government, Central Provinces, (1946) Nag. 865].

This approach was further elaborated and substantiated by the Supreme Court in the landmark case Kedar Nath case (AIR 1962 SC 955) and it will be relevant to recall what Chief Justice B.P.Sinha said in that case: ``Comments, however strongly worded expressing, disapprobation of the actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people …’’

The judiciary had thus ensured that convictions under Section 124A were not as easy in independent India as it was in the case of Tilak and Gandhi in colonial India. And there is no way that the judges could have gone beyond that. It was left to the legislature to do the rest and that had to be by way of scrapping that provision. The point is that the democratic edifice and the Republican foundation of independent India is not as fragile to be shattered by way of a speech in a public meeting or an article in a newspaper as it was the case with the colonial administration.

And hence it is time that Section 124A is scrapped from the statute book. The need for such a measure is as much legitimate and urgent as it is with Section 377 of the Indian Penal Code. In other words, the unity and integrity of India and the legitimacy of the Indian state are not as fragile as it was in the case of the British colonial regime to be threatened and shattered by the speeches or the writings of a section of the political class.

Thursday, October 09, 2008

On the CEO being killed in Noida... (a version of this appeared in the New Indian Express)

There was indeed a sense of irony in the way the political establishment went ballistic about the incident in Greater Noida involving the death of Lalit Kishore Chaudhury. The incident, without doubt, was unfortunate. It must not have taken place and such acts as the one that the victimized workers were involved in that day will only add grist to the mill that militant unionism will scuttle India Inc.’s onward march.

A close reading of the sequence of events that fateful day would bring out a few facts; and among them is that the murder was not intentional. In other words, the criminal intent behind the act will be difficult to establish and from what has come out, the unfortunate incident resulting in the death of the CEO of the Indian unit of the Italian MNC was more in the nature of an accident than an act preceded by elaborate planning.

This is not to approve of the incident. But then, one is reminded of a murder, a few years ago, of Shankar Guha Neogi, leader of the mine workers in Dalli Rajhara (near Bhilai) who was shot dead at his residence. Neogi was murdered on September 28, 1991. It was established, at the Sessions court, that the executioner who shot dead Neogi was hired by some small time industrialists including B.R.Jain, who also shot to infamy when entries in his diary revealed hawala transactions and shook the political establishment for a while in 1995-96. And like it happened with the Jain hawala case, the Neogi murder case too could not be sustained for want of legally sustainable evidence.

The point about recalling this now is that such ballistic behaviour and screeching by the media and the political establishment as was witnessed in the wake of Lalit Chaudhury’s death was not seen in the case of Neogi’s. And when the workers in the mines and the ancillary units around the Bhilai Steel Plant organized a protest demonstration demanding justice against Neogi’s killers, the then State Government of Madhya Pradesh had its police to shoot down 11 of those workers in Bhilai.

Neither did the then Union Minister for Labour express concern over the loss of lives. The visual media with so many private channels had not arrived at that time and hence Neogi’s murder and the subsequent killing of 11 workers by the police did not provide an occasion for ``breaking news’’ and the screeching that went on through the day in the various TV channels. Well. It is doubtful as to whether these channels would have treated the Neogi murder with the same concern that they did with that of Chaudhury. These channels, after all, are known to suffer from Schizophrenia.

This, indeed, can be established with ease if one goes into the facts of the case involving the Indian unit of Graziono Transmissioni and its deceased CEO, Lalit K Chaudhury. The unit, as it has been reported, had laid off a section of its workers and the violence on September 22, 2008, was a fallout of the demand by such retrenched workmen demanding reinstatement or compensation thereof.

The law in this matter is settled and clear. Such layoffs are governed by the Industrial Employment (Standing Orders) Act, 1946 read along with Sections 25(c) and 25(f) of the Industrial Disputes Act, 1947. The ambit of these provisions have been settled by various judgments of the different High Courts as well as the Supreme Court.

For instance, where the management decides to layoff a section of its workmen for a particular period of time, such workmen are entitled for a layoff compensation amounting to half the sum of the Basic Salary and Dearness Allowance and this will be applicable for a period of 45 days. In a matter of clarification, the law has been interpreted to confer this right even on badli workers (P.Joseph vs Loyal Textile Mills) and where the layoff persists after 45 days, the workers are entitled for full compensation.

Similarly, it is a well settled case that in the event of retrenchment, such acts have to be preceded by a month’s notice and the retrenchment compensation amounting to 15 days wages (and this includes the Basic Pay plus Dearnes Allowance) for every year of service rendered is a statutory right. This right is conferred upon all kinds of workmen including those on ad-hoc and temporary employment (Umesh Saxena vs Labour Court) as well as badli workers (Sarabhai Chemicals vs Subhash Pandya) and daily rated workers (Workmen vs Municipal Corporation of Delhi) where such workers have put in 240 days of service in a calendar year.

And in a leading case (Mohanlal vs Bharat Electronics Limited) in 1981, the Supreme Court made it clear that any retrenchment without complying with the provisions of Section 25(f) of the Industrial Disputes Act, 1947 will be viod ab initio and lead to continuation of service with full back wages.

The Supreme Court has also clarified that such compensation is not by way of gratis; putting this in so many words in the Pramod Jha vs State of Bihar, as late as in 2003, the apex court held that the underlying object of Section 25(f) is two-fold:

Firstly, a retrenched employee must have one month’s time available at his disposal to search for alternate employment and so either he should be given one month’s notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched, there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustanence to the worker for the period which may be spent in searching for another employment.

The onus of ensuring that all these laws are implemented rests with the officers of the Department of Labour and Employment in the various States as well as the Union Government. In other words, the issue insofar as the Greater Noida incident involving the retrenchment of a section of the workmen in the Indian unit of Italian MNC Graziono Transmissioni ought to have been settled, according to the law, by the Labour Commissioner, through his subordinates in the region. This, obviously, was not done and the workers were left in the lurch.

Well. It is too much to expect a petty officer in the Labour Department in Noida to force the MNC to mend its ways and obey the law of the land. That the mighty Oscar Fernandes, Union Minister for Labour and among those who has his direct access to Sonia Gandhi, could not hold on to his observations on the incident should convince those with a rational mind of the clout these MNCs wield over the nation and its articulate people. And that explains the state of the workmen and their rights against such employers who, incidentally, will not dare do such things in their own land. The workers in Italy or in any other developed nation cannot be retrenched with such ease as they seek to do in India.

And those responsible for this state are none other than the rulers and the apologists of such un-democracy who do not mind the workmen in their own country being treated as disposable napkins and the law of the land is trampled upon by the carpet baggers. Such Schizophrenia will not do the country proud.

Wednesday, October 01, 2008

Some thoughts on Khairlanji and the new turn in the Sohrabuddin murder .....

The verdict of the Sessions Court in Bhandara in Maharashtra on September 15, 2008 followed by the judgment on September 24, 2008 sentencing six men to death and two others to life term imprisonment evoked mixed reaction. The Sessions court baffled many when it dropped the charges under sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In other words, the court decided to treat the brutal acts perpetrated against the family members of Bhaiyalal Bhotmange as a mere act of murder!

This aspect of the case – that the Atrocities Act must have been invoked by the Sessions Judge S.S.Das – will be evident if one looks into the following facts. Bhotmange is the lone survivor of the ghastly murderous assault in Khairlanji on September 29, 2006; his wife, daughter and two sons were killed in broad daylight and their mutilated bodies were thrown into a canal by members who belonged to the Other Backward Classes.

They did all that because Bhotmange refused to part with a piece of agricultural land that belonged to him to those who wanted it. The story, until now, would appear to be one of a civil dispute over a piece of land culminating in a criminal act in the process. But then, the most crucial aspect of the story is that Bhotmange refused to part with a piece of land, for which he had the title, and hence belonged to him in all the legal senses when he that was demanded of him.

Now, what was the basis behind the demand for that land made? The basis was the ubiquitous and the oppressive caste order that made them believe that Bhotmange, being a Dalit, must obey whatever they ordered and more so when it came to owning a piece of land! And Bhotmange happened to be a Dalit and also among those Dalits who asserted his right as a citizen of the Republic. That infuriated the OBCs in Khairlanji and they decided to impose their own justice on Bhotmange.

On September 29, 2006, his family members were attacked, beaten up and finally killed. Bhotmange, however, survived. And his quest for justice began soon after. He was initially frustrated by the officers in the local police station when they refused to register his complaint. Bhotmange did not give up. He set out on a long course and with assistance from those who believed in the constitutional scheme of things, kept the embers burning.

Thereafter and in a few months after that, coaches of the Deccan Queen Express train were set on fire. And with that, it was brought to the attention of the polity, through the media that one of the factors that led to the violent attack on the train (incidentally, all the passengers were detrained before the fire was lit and thus there was no loss of lives in that incident) was the Khairlanji attack and the fact that the investigation into the case was not reaching anywhere. The media, indeed, brought to the fore the bestial murder on September 29, 2006 and its implication for the future of the democratic polity. And thereafter, the case handed over to the CBI.

The verdict by the ad-hoc sessions judge S.S.Das on September 15, 2008 holding 8 of the 11 accused in the case guilty and the pronouncement, on September 24, 2008, sentencing six out of the eight for death and the remaining two for imprisonment for life is indeed the culmination of a long and determined battle that Bhotmange launched almost two years ago.

Khairlanji, however, is no longer a private concern of Bhotmange. It is, instead a mirror of the caste-based discrimination that continues to stalk the villages across the country and a reminder that Article 17 of the Constitution abolishing untouchability and caste based discrimination is a far cry even after almost six decades after India became a Republic. The Bhotmange family, certainly, were victims of the caste prejudices and met with the fate on September 29, 2006 only because they asserted their rights despite being Dalits.

And hence the Atrocities Act too must have been applied in this case and that way the other accused too were guilty of crime. There is, hence, scope for appeal against the sessions court verdict and it is imperative for the CBI to go on appeal for the sake of justice.

While recalling all this about Khairlanji, one more act of judicial intervention grabs my attention now. The Supreme Court has stayed the trial in the Sohrabuddin-Kauserbi murder case. The case, we may recall, is about the fact that Sohrabuddin and his wife Kauserbi were shot dead by a team of the Gujarat Police led by DIG D.G.Vanzara and thereafter described this act of cold-blooded murder as one of an encounter. The Supreme Court had stayed the trial now on the basis of a report by Gopal Subramaniam, amicus curae, that the investigation into the case by the Gujarat Police was shoddy and hence is likely to ensure the acquittal of the accused police officers!

The case, according to the amicus curae, is fit to be left to the CBI. In other words, Vanzara’s proximity with Narendra Modi made him what he is and there is no scope for a fair investigation into the case of cold-blooded murder that was turned into an encounter death by the Gujarat Police officers. It may be recalled that even some of the truth was brought out only when Geetha Johri, a Gujarat Police officer, appointed by the apex court had conducted the investigation.