Wednesday, August 19, 2009

Jaswant Singh, Jinnah and History

Jaswant Singh asked for his expulsion from the BJP. And he got it. There was nothing else that the party could have done after Singh heaped praise on Mohammed Ali Jinnah. And more so because Singh’s reason to praise Jinnah happened to be that he created Pakistan. Jaswant Singh could have earned a ``promotion’’ in the BJP if he had praised Jinnah for having defied Islam. The fact is that Mohammed Ali Jinnah lived a life that was un-Islamic. He loved his drink and relished Western cuisines and several things in his life were un-Islamic.

The BJP would have loved anyone pointing to these aspects about Jinnah. And Jaswant Singh, in the event he had done that, would have found himself come under attack from the Islamic clergy. It is a fact that the man who steered the movement to create Pakistan, an Islamic nation, happened to be a non-practising Muslim. But then, it is also a fact that Pervez Musharaf too does not fall in the category of an Islamic fundamentalist. And one can think of a large number of prominent people in Pakistan who are not fundamentalists.

Well. Even Jaswant Singh does not belong to the clan of such people in the BJP who desist from drinking, eat only vegetarian dishes and believe in the Brahmanical Hindu way of life. Jaswant Singh, we may recall, declared his drinking habit on the floor of the Lok Sabha as recently as some weeks ago when he criticized Finance Minister Pranab Mukherjee for being miserly with the Income Tax exemption limits. The BJP leader, as he then was, said that the relief in this budget will not even fetch him a bottle of scotch whisky. Pranab Mukherjee then asked Jaswant to kick the bottle like he himself had quit smoking! Well. I think I know why Jaswant Singh likes Mohammed Ali Jinnah so much! Be that as it may.

There is a larger issue here. And that is about the business of writing history and the necessary skills that the historian then must possess and the rigour that will have to gone through while attempting to write something called history. And that is wanting in Jaswant’s comments about Jinnah in his book: From what I have come across in the media, Jaswant Singh’s point is that Jinnah created Pakistan from out of nothing. This is simply a travesty of facts. Pakistan and its making did not happen out of nothing as Jaswant Singh would like to believe and it is sad that no one seems to have pointed this out.

The idea of Pakistan, in fact, existed long before Jinnah spoke about it in 1940. It existed even before the colonial rulers sanctioned it. It existed long before Jinnah called for Direct Action in August1946. And it existed long before the Indian National Congress agreed for partition in its Delhi session. The idea of Pakistan existed long before Jawaharlal Nehru emerged as the natural choice as Prime Minister of independent India and even before Sardar Vallabhai Patel began putting the geographical entity called India together. All these have been discussed, debated and somewhat settled among historians of significance.

It is also a fact that the Hindu Mahasabha, from where a number of the Jan Sangh leaders, including its founder Shyama Prasad Mukherjee, emerged had in a way provided the basis for Jinnah to justify or gather support for his idea of Pakistan. It is also a fact, established by historians of repute, that the attitude of the leaders of the Indian National Congress, particularly in the United Provinces (present day Uttar Pradesh), towards the members and leaders of the Muslim community during the elections to the Provincial Assembly in 1935, ended up creating the basis for Jinnah to talk about a separate nation.

Jinnah, in fact, was among those who vehemently opposed the idea of two nations when it was discussed in the Muslim League conference as late as in 1937. And in 1940, he raised the demand. There is a lot more on this that has been discussed, debated and even contested and all these have taken place among historians. It is certainly not correct to say that Jinnah created Pakistan from nothing. And Jaswant Singh cannot be taken seriously for saying such nonsense. It is another matter that the media played it up, his book received a certain hype that it could not have if the same thing was written by some unknown person.

The sad part is that there is a tendency, promoted by the 24 X 7 news channels to make a mound out of a mould (or create a controversy out of nothing to borrow an expression from Jaswant Singh) and make a book, that must have been dismissed as pulp, into one of significance.
Dr. Manmohan Singh's lament on Courts, Cases and Backlog...A critique

Prime Minister Manmohan Singh’s lament over the pendency of disputes – as many as 3 crore cases pending before the various courts across the country was indeed a brave statement. And even if it was unintentional, he gave an opportunity to those from our middle class homes to raise a discussion on the state of our judicial system. The blame game began and anxious reporters churned statistics of vacant posts at the various levels of the judicial system including the higher judiciary.

The Prime Minister also promised those assembled in the august gathering – Chief Ministers and the Chief Justices of the various High Courts – that the executive was willing to walk that extra mile to remedy the system. Setting up of several hundred special courts and posting judges in all the vacant posts, he said, will have to be done. Well. None will quarrel with his intentions. The fact is that with such huge pendency of cases is eroding the citizen’s faith in the justice system. And if this is allowed to persist, there can be very little hope over the survival of the democratic edifice.

But then, it is also important to ponder over some truths, invisible to those who do not watch the functioning of the justice delivery system from close quarters, to decide as to whether the cause for the malady rests entirely on the inadequate number of judges or otherwise. This will also help get over an impression that most of the cases are kept pending because of repeated adjournments that the lawyers are known to seek. Well. It is true that the litigants suffer monetarily and otherwise when lawyers seek adjournments. But then, it is also a fact that such of those judges who refuse to allow repeated adjournments end up with a bad reputation.

Prime Minister Manmohan Singh, incidentally, did not make this an issue but the urbane sections of our people, most of whom hold a poor opinion about the lawyers, have not lost another opportunity to blame it all on the Bar and the Bench. I must say that all this is not misplaced. But then, a systemic problem cannot be sought to be set right by seeking to tackle the peripheral issues alone. And hence, it is important to set out a few harsh truths that are the cause for the huge pendency of disputes than just the inadequate number of judges and the avarice that leads the lawyers to prolong a case by way of repeated adjournments.

One such harsh truth is that the Government is primarily the cause for a large number of cases at the outset. Let us take, for instance, the writ petitions that are filed, in the various High Courts across the country: Without having to go into the exact numbers, it is possible to state that more than half these number are filed by factory workers, pavement dwellers and such ordinary people. And as it is the case with writs, under Article 226 of the Constitution, the litigant approaches the High Courts only when all other attempts to justice fail.

Among these are such petitions seeking a writ that a representation by a factory worker to the Employees State Insurance Corporation (ESI) that he be provided medical treatment for peripheral neuropathy, a disease contracted due to his exposure to dangerous chemicals while at work. The ESI Act, incidentally, states very clearly that the worker is entitled to claim compensation of such occupational diseases. But then, the officer at the ESI dispensary does not care to do his job until a writ is obtained from the High Court to that effect. And this takes at least 12 weeks and will cost the worker a few hundred rupees provided the lawyer does not take adjournments and the Hon’ble judge is committed to the justice delivery system.

Likewise, there are such instances of a poor Dalit, allotted a small piece of land as part of a Government scheme to provide housing sites to the community, having to file a writ petition to enjoy possession of the land and even after the writ is issued, the Revenue officials not doing their job; the poor man is then forced to file a contempt petition. And only then does the officer concerned wake up to explain that the land meant for the project has been encroached upon! In this instance, the entire process had taken a decade because the Government Pleader, representing the respondent, had to wait for several months for instructions from the concerned department at every stage when the case came up. In other words, the fault lies with the bureaucracy than with the Bar and the Bench.

This is not all. Things will be clearer if the story about the various stages of a writ petition is told. And for want of space, I will have to tell that in brief. Writ petitions arise either out of a judgment by a lower court or an order of the government (a writ of certiorified mandamus) or out of sheer inaction by the government official (writ of mandamus) seeking a direction that the concerned officer do his/her job. It is filed either by the citizen or by the Government itself. And where it is filed by a citizen, the Government Pleader takes some time to discuss the case with the concerned officer and file a counter statement. And when the case is settled, the loser prefers a writ appeal.

Where the government is the appellant, it has its own advocate. The citizen, however, will have to raise the resources to engage a lawyer at the appeal stage. And even if the writ appeal is decided against the state, the battery of Government advocates in the Supreme Court will take care of the process to file a Special Leave Petition (SLP); the citizen, however, will have to raise further resources to defend himself in the Supreme Court. It costs him a lot of money; it does not matter to the Government, given its resources. And when the SLP is dismissed, the officer who decided to fight the case until the highest level, spending a huge sum of tax payer’s money as fee to its lawyers, is not held responsible in any way.

The losers in this are: the citizen who had to go through all the pain; and also the tax payer whose money was spent liberally by the government officers in pursuit of ``justice’’. The fact is that in most cases, their pursuit for justice is against its own citizens and their rights!

Well. The Prime Minister’s concern and his lament over the pendency of disputes in courts are indeed justified. But then, the remedy lies in making the bureaucracy and their political masters responsible for their decisions. It is possible to amend the rules: That where a government officer was held responsible for an illegality against the citizen, make sure that he/she is made to pay for their action or inaction. And where the law officer in a particular department advised the government to prefer a writ appeal or an SLP, he/she must be made to pay the costs in the event it gets dismissed. This will be a sure deterrent against indiscriminate appeals and help reduce the pendency of disputes in a big way.

As for the Prime Minister’s lament about the number of undertrials languishing for long years in jails, it is sad that he is unaware of the law of the land, as laid down by the Supreme Court in the Hussainara Khatoon vs State of Bihar [AIR 1979 SC 1369] that undertrial prisoners shall not be detained in jail even for a day longer than the maximum term of imprisonment which could have been awarded on his conviction. There are several other judgments that have established the onus of a speedy trial on the prosecution. In other words, if undertrials languish in jail, the responsibility lies with the executive and not the judicial system.

Saturday, August 15, 2009

On the Right to Education Act...

The Right to Education Bill is now an Act. The passage of the Bill by Parliament in the session that ended last week was the culmination of a legal process that began in 1993. It was in that year that the Supreme Court held, in the Unnikrishnan vs State of Andhra Pradesh case, that children between 6 and 14 years of age have the fundamental right to education.

The Constitution 86th amendment of December 2002, inserted Article 21 A into the Constitution; this made education a fundamental right to children between 6 and 14 years of age. This was in accordance with the Supreme Court verdict in the Unnikrishnan case. It took as many as 9 years for Parliament to have such a simple insertion made. It will make sense to add that the Supreme Court verdict and the Constitution Amendment meant that the right to education, included in the Constitution by the founding fathers, as a Directive Principle in the form of Article 45 was now made into a Fundamental Right.

In other words, the Constitution amendment was an explicit recognition of a harsh truth: That the successive governments since 1951-52 did precious little to ensure that all children between 6 and 14 years of age went to school. The rights listed in the Directive Principles, in fact, were meant to be achieved within a decade of the Constitution coming into force. In other words, it was intended that India shall achieve universal education for children between 6 and 14 years of age before January 26, 1960. This did not happen.

And this simple truth was recognized by the highest court in 1993; acknowledged by the political establishment in 2002; and it took seven more years from then to give a legislative shape to the enabling clause in the Constituion; so much for the sake of education; and all the boasting about We being a democracy. Well. Let us now come to the reality. It is now possible to ensure that al children between 6 and 14 years of age have the access to education and in the event this is denied, it becomes a case for seeking a writ from the higher judiciary.

The Constitution 86th amendment of December 2002 had also made a substantive change to Article 45: It now says; ``The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years.’’ This would mean that even if it is not a fundamental right, care and pre-primary educational facilities to children below six years are also an agenda of the state. This provision could mean that the government, as a matter of policy, will now have to set up child care centres and other such institutions. It is also possible, that in the event the state does not care to do this, like in the same way it ignored the responsibility of primary education, a judicial intervention in the same nature as Unnikrishnan is possible at some date.

Let us not wait until then. The society and its important arms such as the media, the civil society groups and all those who care for democracy, justice and the nation’s well being, now have a distinct scope for intervention and make universal primary education a reality within a definite time frame. For instance, it is now possible to set out on a campaign to ensure that all children between 6 and 14 years are in school and not seen working in the tea shops, workshops and hotels.

With the passage of the Right to Education Act, the realization of universal primary education is a Constitutional imperative and any violation of the fundamental right to education is an issue that the state will have to answer. In other words, it is possible for any one of us, citizens, to approach the high court with a writ petition, on behalf of a specific child or a specific group of children who are working in a specific place and are not sent to school. Such a petition, under Article 226 of the Constitution, will definitely be held valid as long as the facts of the case are established.

This, however, is only one aspect. There is, however, a far more important aspect and that is to ensure quality education. It is in this regard that the task before the media and the civil society groups become most pronounced. It is likely that the establishment reduces the Fundamental Right to Education as merely a provision to access to buildings that are called schools. This, after all, is the state of our government schools in many cases. The buildings are insufficient to hold the number of children and in many other cases there are fewer teachers than that are required in those schools.

And even where teachers are there, they are hardly interested in teaching and some are even known to behave like jail warders or ring masters in a circus company, whipping and beating up the children. These are issues that will have to be addressed and monitored by the media and the civil society groups as well as anyone and everyone who cares for the nation and its future. It is possible to achieve one of the many dreams that the founding fathers of the Constitution had put in our statute.

Wednesday, August 05, 2009

Buta Singh and his amoral ways....

Someone like me, who follows political developments so closely, had lost track of Buta Singh’s movements. It probably needed something like a Global Positioning System (GPS) device to keep track of that. I remember Buta Singh as Minister in Rajiv Gandhi’s cabinet in the late 1980s. He was among those sworn in on December 31, 1984 after Rajiv Gandhi’s Congress had won a huge majority in the general elections that year.

Punjab was on the boil then. And Buta Singh, along with many others were declared Thankaiya (traitors) by the Sikh clergy. I distinctly remember pictures of Buta Singh doing kar seva and allowing himself to be punished by the clerg, repenting for being part of the Congress party whose Government let the army into the Golden Temple to flush out and deal with Jarnail Singh Bhindranwale. In other words, Buta Singh paid a price for being a part of the Congress and also wanting to remain a Sikh then!

It is also a fact that despite being a member of the Union Cabinet, Buta Singh was not even informed of the details of the talks between the Union Government and the Akali Dal leaders, throughout 1985, and he came to know of the developments on that front only when the rest of the nation knew about the settlement. Buta Singh did not mind that insult. He remained a Minister; and was made the Home Minister too! He was assigned a prominent role in attacking V.P.Singh in Parliament when the Congress was caught up with the Fairfax muddle. It is important to record here that V.P.Singh was the Defence Minister of the same Government at that time.

Thereafter, one remembers Buta Singh for his role in organizing the Shilanyas in Ayodhya on November 9, 1989. This, he did, in his capacity as Union Home Minister and on Rajiv Gandhi’s bidding. He was rewarded for all this. Sardar Buta Singh continued as Minister in the P.V.Narasimha Rao cabinet too. And his role in converting the minority government into a majority was far too well known. Buta Singh was involved in buying up votes in Parliament. He was charged for this in the infamous JMM payoffs scandal that rocked the Narasimha Rao led Congress.

Let me elaborate the scandal for those who were too young then. The Jharkhand Mukti Morcha (JMM) had six MPs then in the Lok Sabha. And the MPs were all available to negotiate a deal with the Congress in July 1993; the timing was that there was a no-confidence motion in the Lok Sabha and the Narasimha Rao Government appeared like falling. The Government side was certainly short of a majority given the line-up of parties at that time. Buta Singh, with some others in the cabinet, got into the act and they were determined to save the Government and that way the country too!! In order to save democracy, Buta Singh was involved in negotiating the six JMM MPs. The six MPs, it so happened were convinced by Singh and voted in favour of the Government.

The day after, they went to the Punjab National Bank branch at Naoroji Nagar in Delhi and deposited huge sums of money in fixed deposits. One of them, Shailendra Mahato, however, let the cat out of the bag. At a press conference, held at the BJP headquarters, Mahato declared that himself and the other JMM MPs were paid huge sums by Buta Singh in exchange for their votes in Parliament and that the money that was deposited in the fixed deposits by them came that way!

The case went up to the Supreme Court and Buta Singh was spared of being punished only because the court held that even if there was evidence that the money was arranged by him, there was no connection between that and the manner in which the JMM MPs voted in the Lok Sabha in the confidence motion. In other words, a quid pro quo was not established between the giving-of-money and the voting-by-the-MPs. That was indeed a judgment that put the seal on the hopes, if there was any, that the corrupt men can be sent to jail by way of judicial interventions.

Buta Singh then figured in the Jain Hawala scandal. And Narasimha Rao ordered his exit from the cabinet as it was done with all others who were in the cabinet then. Buta Singh, like the others, quit the Congress, contested the 1996 Lok Sabha elections as an independent from Jalore, his old constituency in Rajastan, and won. He tried becoming a minister in the United Front Government. But the United Front did not need him simply because they had enough MPs in their own parties to become ministers.

Buta Singh did not relent. And he won from Jalore again in 1998 as independent. Atal Behari Vajpayee, though heading a combination that was the largest in the Lok Sabha was still in need of some more MPs to make up a majority for the NDA. And Buta Singh made himself available for Vajpayee; ofcourse for a price. He was sworn in minister on March 19, 1998 along with Vajpayee and others. Buta Singh was given the precious Telecomunications portfolio too. But then, as ill luck would have it, Singh was haunted by the JMM payoffs scandal raising its head. Telecommunication Minister Buta Singh had to quit the cabinet on April 20, 1998, exactly a month after he was sworn in.

I do not remember the date or the month or the year in which Buta Singh returned to the Congress. But then, he had done that and was rewarded with the post of Bihar Governor. In 2005, he played dirty to prevent Nitish Kumar becoming the Chief Minister despite the JD(U)-BJP combine having emerged a single largest combine. He recommended dissolution of the assembly even before it was convened and Buta Singh was chastised by the Supreme Court for having done all that.

Well. It did not matter. He was rewarded again. And this time as Chairman of the National Commission for Scheduled Castes. A constitutional office meant to protect and safeguard the legal rights of the members of the Dalit community. And with his own track record, it is not difficult to know what he could have been doing from that office.

Let me now explain why I went about this exercise of recalling Buta Singh’s political past. The provocation came from the news recently about Buta Singh’s son, Sarobjit Singh, being held by the CBI in a case of demanding bribes from a Nashik based contractor in return for saving that contractor from a case that is pending before his father’s commission. Well, Sarobjit grew up seeing his father; and it is only natural that he resorted to making money from wherever it came from.