DELHI BELLY : ITS TIME TO COMPENSATE CITIZENS FOR WRONGFUL ARRESTS.

     The arrest and release on bail of Air Chief Marshal ( Retd.) SP Tyagi last week after 18 days of imprisonment highlights a disturbing trend in our justice system: the increasing instances of wrongful confinement of citizens by the police. This is not to declare Tyagi innocent of the charges against him but to question the legality of arresting someone without adequate evidence being available against him. The SpeThe cial Court which granted bail to the ACM catechized the prosecution on this very point, emphasising that the CBI had presented no evidence against Tyagi relating to moneys received, assets acquired illegally or quid pro quo. This is a very serious stricture against the CBI and in any just system should result in action against the Investigating Officer and the prosecuting counsel, but this is unlikely to happen. ( Interestingly, it was on the basis of this same inadequate evidence that the Air Chief was first sent to jail by the magistrate when he was arrested by the police!). Surely it is time to raise questions.

     Citizens in India are being confined illegally on a colossal scale, either in police lock-ups or in judicial custody. Our prison population is about 4.50 lakhs, of which 70% ( or 3.10 lakhs) are undertrials, i.e they have not yet been convicted of any offence. The majority of them are not likely to be convicted either. According to NCRB data for 2014 the national conviction rate for IPC offences is just 45%; in other words, of the 3.10 lakh undertrials in jail 55% or 1.65 lakhs will be found innocent for want of evidence ! But they would have spent years behind bars, deprived of their liberty and natural rights, their future blighted by the stigma of imprisonment. Why were they arrested in the first place ? Why did the courts send them to judicial custody if there was no prima facie evidence against them ?

    The answer is nothing short of an indictment of our criminal justice system: callous apathy, venality and incompetence of the police, failure and lack of due diligence on the part of our lower court judges, and complete indifference of the policy makers. To begin with, many of our laws themselves are defective to the point of being blood thirsty- laws relating to dowry deaths,  suicide, rape, domestic violence, atrocities on scheduled castes, sedition are so crafted that the complainant's word is accepted as the gospel truth and the " accused" can be arrested straightaway without the need for any corroborating evidence. This is grist to the police mill which in any case are more interested in " closing" a case by arresting someone than in ensuring that actual justice is done by catching the real culprits of a crime. Quite often public/ political/ media pressure is so intense that an arrest-any arrest- is the only way to get them off their backs. Thereafter shoddy investigation, external influences, lengthy delays, witness intimidation, frequent transfers and lack of any accountability ensure that 55 of 100 cases will inevitably end in acquittal, either at the trial stage itself or in appeal(s). Meanwhile, of course, those arrested will languish in jail.

    The same bizarre process applies to convictions, after trial. In the Akshardham Temple blast case of 2002 six accused were convicted by the trial court and High Court: three were sentenced to death and three others to imprisonment ranging from 10 years to life. All six were acquitted by the Supreme Court on 16th May 2014 which pointed out grave lacunae in the evidence against them. But by then their lives had been destroyed as they had spent the intervening ten years in jail. There are hundreds, if not thousands, of such cases playing out every year. Should the nation not compensate them for the miscarriage of justice even though no reparation could possibly bring back the years lost, the reputations tarnished, the families torn apart ?

   There are many types of wrongful confinement: False Arrest ( detaining a person without lawful authority), Wrongful Arrest ( taking someone into custody without prima facie evidence), Wrongful Imprisonment ( confining someone without just cause or without using legal channels), and Wrongful Conviction ( imprisoning someone on grounds/ evidence subsequently found to be inadequate). The first three are blatant violations and transgressions of the law; only the last type is a consequence of a legal process, but it is nonetheless no solace to the victim. All four are rampant in India but have not attracted the attention of either the government or civil society.

   The developed world, the genuine democracies have accepted that victims of a necessarily imperfect criminal justice system are entitled to reparation from the state, and have devised mechanisms for it. In the USA 29 states have legislated Wrongful Conviction Compensation statutes which provide compensation ranging from US$ 50,000 to US$100,000 for every year of wrongful imprisonment. ( And this in a country where the problem is nowhere as endemic as in India- between 1989 and 2013 only 1281 exonerations were recorded: we probably hit that figure every month). A typical case is that of one Marty Tankleff who was wrongly convicted for the murder of his parents when he was only 17 years old. He had to spend 17 years in incarceration before he was acquitted in 2007. He was awarded compensation of US$ 3.4 million dollars by the state of New York. In the UK and other developed countries too systems exist for the state to be sued in such cases. It is next to impossible to do so in India because both, specific legislation or a general law of torts are missing.

   Wrongful confinement of any type by any agency of the state is a violation of human rights, and when it occurs on the scale that it does in our country it amounts to a negation of an equitable justice system. The prevailing concept of " arrest first, gather evidence later" is abhorrent to the spirit of jurisprudence. One can understand the indifference of the government and the parliamentarians, but what is inexplicable is the silence of the judiciary and the bar. Is it because the former is equally guilty through its casual approach, and the latter because this infringement of fundamental rights is good for business? Whatever the sordid reason may be, it is high time laws are put in place to compensate the victims of wrongful arrests/ convictions and to punish the perpetrators. At the least, this would have a salutary effect on the way our police conduct investigations and the judges examine evidence. The people have voluntarily given the state enormous power over their lives in order to live in a just and lawful society; when the state errs in the exercise of this power it must offer reparation to its victims. Not doing so would be breaking a covenant that is the bedrock of a democracy.

HAS THE OPPOSITION LOST THE PLOT--AND THE 2019 ELECTION ?

     The lemming is an Arctic rodent which multiplies geometrically. Once every few years something odd happens to them: they are overtaken by a suicidal impulse and millions of them fling themselves off cliffs and drown in the ocean below; no scientist has been able to explain why they do so. Something similar appears to be happening to our main opposition parties over the last month- they are self destructing, slowly but surely. Their conduct in both houses of Parliament and actions outside are irrefutable evidence of this. But unlike the lemmings, in their case we know the reason: frustration, lack of a specific agenda ( other than a hatred of Mr. Modi), and inability to respond to the changing narrative he has generated.

     The immediate trigger for this mass hara-kiri has been demonetisation. This paradigm policy shift is something all political parties ( including the BJP), indolent in the stasis and inertia of the last three decades, were totally unprepared for. Lacking an existing template or the vision to develop a new one, all they have done so far is to paralyse Parliament, attempt to incite people outside into some kind of a civil disobedience movement, organise half-hearted dharnas, make outrageous claims of deaths in bank queues, selective leaks to cronies etc. They have even threatened to derail the GST dialogue in a scorched earth display of exasperation. None of it has worked.

     Demonetisation- or our own 8/11- is something which will be discussed and analysed by economists and politicians till we return to the stone age ( which, by the way, is inevitable: we shall either nuke ourselves out of existence or annihilate the natural environment to a point where no life will be possible on this sorry planet). But demonetisation is here to stay, such a monumental measure is irreversible and going back is more fraught with danger than going forward. Its logic is also impeccable. Its future is the promised land. All this Mr. Modi has been able to communicate to 1400 million Indians. The opposition parties- barring just a few- failed to see the logic of the measure, to understand its inevitability, or to distinguish between its substance and its implementation- the former is sound, the latter faulty. By clubbing both together they have muddied their own backwaters and are now thrashing around blindly, looking for an exit route. There isn't one. The govt. has messed up, without a doubt, but the Opposition has messed up big time.

    There are plenty of mistakes- blunders even- in the manner demonetisation has been implemented: failure to calibrate the 200,000 ATMs in advance, failure to anticipate the chaos created by the shortage of legal tender in the economy, failure to plan advance printing of notes, failure to install more POS machines with vendors before introducing the reform ( something which the govt has now mandated the banks to do, in the millions), failure to anticipate the effects on farmers during sowing season, failure to factor in the job losses and impact on the informal sector. The list is long. The govt's only defence to this roster of omissions is to cite the need for secrecy. This doesn't cut ice, much less the crap.

    But that is not my point- the point is that the Opposition failed to exploit this, and they faltered in three ways: one, by attacking Modi rather than the policy; two, by debating the substance ( which Modi had already successfully sold to the people and the world) rather than the implementation; three, by not raising these deficiencies in Parliament and by shutting Parliament down they denied themselves a powerful platform for exposing the govt. Rabble rousing on the streets by Mamta Banerjee, Arvind Kejriwal, Sitaram Yechuri, et al. is no substitute for informed debate on such a serious matter. Even more ridiculous was the pathetic attempt to portray a routine go-around by a plane over Calcutta air-port as a conspiracy against Ms. Bannerjee's life, or an annual Army exercise as a coup attempt, or the hacking of Rahul Gandhi's twitter account as a BJP conspiracy! Nobody takes the Opposition seriously any more on this issue; even more important, however, they have conceded valuable time and space to Mr. Modi to rectify shortcomings and claim success.

    He has used this precious time given to him on a platter in a masterful manner- he has frequently tweaked the original policy to make mid-course corrections, he is constantly amassing data to prove his claims on the existence of black money, and he has cleverly steered the original intent towards the advantages of a cashless economy. And most important of all, he is being successful in selling it to the people standing in the bank and ATM queues. Just consider the facts which have emerged: more than Rs. 50000 crores have been deposited in Jan Dhan accounts, 80% of which had zero balance just a month ago, seizures so far include Rs. 2000 crore in cash and 243 kgs of gold, more than a hundred dealers in gold and foreign exchange have been raided, banks report that digital transactions have doubled since 8/11, millions of new bank accounts have been opened, e-wallets are reporting as much as a 1000% increase in their business, property and gold prices have crashed. To the ordinary folks, this corroborates Modi's refrain that the black money wallahs are on the run and that the country is happily gravitating towards a cashless economy. Neither of these are essentially true, but politics is all about perception and this is one war that Mr. Modi is winning.

    He is weathering the crisis well, thanks to the walk over given to him by a combined Opposition. The next two years will be even better for him because by then the real and tangible benefits of demonetisation shall have kicked in: a massive expansion of the tax base, both direct and indirect, in the millions; significantly enhanced revenues for the government, both by way of penalties and expanded compliance; enhanced budget provisions for rural and welfare schemes; elbow room to reduce taxes; a quantum leap in financial inclusion and cashless transactions; a lowering of interest rates resulting in a fillip to industry and business; creation of more jobs. The icing on the cake will be GST ! By the end of 2018 Mr. Modi can legitimately claim that he has delivered on his promise of     " Achhe din."  No Prime Minister can go to the people for votes with a better package. That is why I believe the Opposition has already lost the 2019 elections. Going forward from here they will have only nuisance value.

  This is not a prospect that pleases me. I have always believed ( and written) that Mr. Modi needs a strong Opposition to keep him honest, as they say in cricket. There is an ambiguity about his ideology and core beliefs that is disconcerting; he is authoritarian and uncommunicative; he cannot accept or accommodate dissent: he follows a " good cop"- " bad cop" routine towards the minorities; he regards the natural environment as a stumbling block towards development; he doth protest too much about his humble background, he can barely conceal his contempt for the judiciary. One of his biggest flaws is that he is too technology centric: in fact, this appears to be his blind spot: he genuinely believes-wrongly- that technology can solve all governance and social problems. A modern state cannot be built on technology alone; what is also needed are the softer values of equity, rule of law, transparency, free speech, tolerance of differences and dissent, social inclusion, a government that is genuinely compassionate. These are still lacking in Mr. Modi's dispensation. What we do have in ample measure is a hubris of impressive proportions, evident in his recent statement: I am a "fakir" and can  give up everything and just walk away with my " jhola". Fakirs may be closer to God but they do not make ideal Prime Ministers, in fact they pose a danger as leaders of nations. A man who has no stakes has no commitments for, as Bob Dylan said, " if you ain't got nothing you got nothing to lose."

   For all these reasons Mr. Modi needs a strong Opposition to maintain the balance that is crucial for democracies to survive. This no longer exists. A selfish, vision-less and ideologically bankrupt Opposition has ensured that the scales have tilted irrevocably in Mr. Modi's favour and 2019 is now for him to lose. 

THE MYTHOLOGY OF SRIKHAND MAHADEV.

         

     
                                  [ SRIKHAND  MAHADEV  PEAK . Photo Sanjeeva Pandey.]

    At 18000 feet the peak at Srikhand Mahadev is imposing in its savage grandeur and timeless beauty, shrouded in constantly drifting clouds ,surrounded by ice fields and buffeted by powerful winds all day long. The massif is located on the border of Kullu and Shimla districts and is approachable from three directions: Bathad in the Tirthan valley, Phancha in the Ghanvi Khad and Baghipul. It is perhaps one of the most difficult pilgrimages in the state but for those who venture to undertake to visit this abode of Shiva the rewards are plenty. And one of them is the rich mythology associated with this legend, rich even by the fecund standards of our Dev Bhoomi. I find three of them particularly fascinating and poignant.

   On the final day of the trek to the peak one has to ascend from Bhim Dwar, the camp site for the previous night. The first five kms or so is over alpine pastures, but then the terrain becomes rocky and covered with scree- not a blade of grass grows in this barren wasteland. But after another four kms or so one suddenly finds one self in the middle of a field of flowers- a profuse expanse of the mystical Brahm Kamals, hundreds of them sprouting in glee from between the rocks, their white and cream colours transforming the barren landscape into an arboratum of the gods. This place is known as Parvati Ka Bageecha ( The Garden of Parvati).

 

                                                   [  PARVATI  KA  BAGEECHA ]                                        

The Brahm Kamal is the favourite flower of the goddess Parvati, and they are there for a reason. Legend has it that it was at this spot that Parvati waited for 18000 years to win the affection of the God Shiva, who was meditating on the peak at Srikhand, totally oblivious of her. Empathising with her loneliness and distress, the Brahm Kamals bloomed around her spontaneously to give her company and cheer her up. And they are certainly a cheering sight in this desolate terrain. giving one fresh encouragement for the remaining climb of 2000 feet that still remains.

   One continues ascending beyond Parvati Ka Bageecha and the terrain soon reverts to the harsh, glaciated landscape, all greenery vanished. A short distance on, at the foot of the final, steep climb to the peak is a small, glacial lake, fed by the snow melt from the surrounding glaciers- and herein is embedded another poignant myth. This pristine lake is in the shape of an eye and is known as Nain Sarovar. Legend has it that Parvati, while waiting for Shivji, became so disheartened and disconsolate that she started weeping. One tear drop fell on the ground and formed itself into the shape of a lake which is what we see today, hence its name. Pilgrims and trekkers take a dip in these holy waters before proceeding further. The lake is gradually filling up with detritus and may one day disappear entirely, but it has imbued this stark landscape with an anthropomorphic emotion which adds richness to this dev bhoomi

                                                               [ NAIN SAROVAR]

     From the lake it is a steep 2000 feet ascent to the peak over continuous rockfall, boulders and patches of ice and snow, but one baffling mysterious myth still remains. Halfway to the peak, scattered among the boulders, one comes across a dozen or so stone tablets of massive proportions, rectangular in shape, completely out of place among these rounded boulders. There are carvings on their faces, like some type of cuneiform or vanished script in regular lines. Take a look at the image below:

                                                                 [ BHIM KI BAHI ]

      It would be difficult to convince any reasonable person that (a) the regular shapes of these tablets have not been CARVED by a humanoid hand or that they are the result of natural erosion, and (b) that the calligraphic type markings on them are the result of action of winds and ice. Such explanations do not match with the surrounding rocks which do not show the effects of these natural forces. The carvings are too stylised and uniformto be natural . And the question:why only these dozen odd tablets ? The devout have a more interesting explanation: these mountain ranges were visited by the Pandavas during their exile ( there are legends of the fabled Pandavas in other regions of the state, and other natural features associated with them, such as Pandupul in the Parbati valley and Bhim ka Chulha at Hatu Peak ), and they are supposed to have spent some time on Srikhand Mahadev. These tablets were carved by Bhim and the " writings" on them are the accounts of their travels recorded by him. They are known as " Bhim Ki Bahi" or Ledgers of Bhim. Pilgrims venerate these rocks, as the chandan ( sandalwood) markings on the image bear testimony.

   I am reluctant to dismiss outright something which I cannot explain rationally. The remote, natural landscapes of Himachal are absolutely saturated with similar mythologies of the ages. We may not believe in them but we must respect them for they are part of the DNA of both man and nature in these forbidding regions. They bring together MAN, RELIGION and NATURE, a much more sustainable synthesis than today's concoction of Man , Religion and Politics. They have also played a significant role in preserving the natural environment and we must value them for this reason alone, if not for others.