VIOLATING THE CRIMINAL JUSTICE CONTRACT

                        VIOLATING  THE  CRIMINAL  JUSTICE  CONTRACT

   The criminal justice system is based on an implicit four sided contract: the legislature shall pass the laws, the judiciary will interpret them, the people will observe them, and the police will enforce them. This contract appears to be breaking down in India because the law enforcers( the police) in an increasing number of cases is refusing to abide by the judiciary’s interpretations of some critical laws. The lower courts too in an increasing number of cases are failing to exercise the diligence to check this tendency.It would suffice to refer to three of them- Sec. 124A of IPC ( sedition), Sec. 306 of IPC( abetment of suicide), and Sec. 66A of the Information Technology Act( restrictions on on-line speech and content)- to prove this point.

   The sedition law is perhaps one that is most being misused by the executive to serve its political and ideological ends. Ever since the Kedar Nath Singh case in 1962, which first read down Sec. 124A, the Supreme Court has repeatedly ruled that the mere raising of slogans, writing of articles or even possession of pamphlets does not constitute the offence of sedition ( Balwant Singh 1995, Common Cause 2016). It has stated unambiguously that Sec. 124A is attracted only if there is a clear and immediate incitement to violence, or actual violence, “ or the tendency or intention to create public disorder.” In the absence of these ingredients all free speech is guaranteed by Article 19(1) of the Constitution. In Balwant Singh it held that even the mere raising of  “Khalistan Zindabad” slogans did not amount to sedition.

   And yet the executive/ police keep on registering sedition cases and arresting people voicing anti-government opinions. The Congress had arrested the cartoonist Aseem Trivedi in Mumbai; earlier this year three intellectuals have been charged in Assam for criticising the Citizenship Bill, the BJD in Orissa last year arrested a journalist for daring to speak against the state govt., in January the Delhi police have charge sheeted Kanhaiya Kumar and nine others for raising anti-India and pro- Kashmir slogans in JNU, and on February 11^th UP police have lodged sedition cases against 14 students of Aligarh Muslim University after a scuffle with some ABVP activists. It has been reported in the media that in UP alone 150 sedition cases have been registered in the last few years. From all reports appearing in the public domain so far none of these cases come within the definition of sedition mandated by the SC, but this has not deterred the police from going ahead. According to a news report based on MHA statistics 179 sedition cases were registered between 2014 and 2016; the number of convictions was only 2! The figures speak for themselves, and what they are saying is that the intention of the govt. is not to convict but to harass and persecute through our tortuous judicial process.
   It does not help the cause of free speech when High court judges themselves consider books such as Tolstoy's WAR AND PEACE a seditious piece of writing ( an obiter dicta by an Hon' judge in Maharashtra just this week in the Koregaon trials).

   The misuse of Section 66A of the Information Technology Act is just as pronounced, even though the Supreme Court had struck down this section too in the Shreya Singhal case( March 24, 2015). The court held that this section was violative of Art.14 ( equality before the law), Art. 19( freedom of speech and expression) and Art. 21( right to life and personal liberty). And yet it is employed freely by administrations to stifle dissent or settle personal scores:  the legal data site Indian Kanoon has listed 45 cases between just January and September 2018; a petition in the SC claims that 22 persons have been arrested since 2015. A typical example is that of one Zakir Ali Tyagi of Muzaffarnagar( UP) who was charged and arrested under this section in April 2018 for posting on his Facebook page that the UP Chief Minister had 28 cases registered against him! He is currently out on bail but the case continues.

   In fact, so pervasive and widespread has this blatant misuse and illegality become that on 7^th January of this year the Supreme Court, acting on a PIL by PUCL( People’s Union for Civil Liberties) even threatened to arrest govt. officials for violating its orders and continuing to harass people by foisting this section on them!

   The law pertaining to abetment of suicide ( Section 306 of the IPC) provides another fertile ground for the police to demonstrate their disregard for settled law. Both the SC and various High Courts in a plethora of judgments have laid down the essential ingredients that can constitute abetment. They have ruled unambiguously that the mere naming of a person in a suicide note is not enough to infer the offence; there has to be mens rea to commit the offence; for the charge to be made it is necessary that the accused should be    “instigating a person or intentionally aiding a person to commit the act.” In fact in one case ( Madhav Rao and others vs. state of Haryana, June 2018) the Punjab and Haryana High Court has gone so far as to say that “ another person cannot be blamed for the wrong decision taken by a coward, fool, idiot, a man of weak mentality, man of frail mentality.”

  And yet, all over the country, dozens of people are charged, and arrested, for abetment without any evidence, merely because they are named in a suicide note or accused by the next of kin of the deceased. An irresponsible media  exerts pressure on the police to act.  School teachers are arrested because they scolded a pupil who then killed himself, employers because they took some action against an employee, men because their refusal to marry someone prompted the latter to take their lives. In the most shocking such case in Noida in December last year one Swaroop Raj, an executive in a multi-national company, was accused by two female employees of sexual harassment. An Internal Complaints Committee was set up to enquire into the matter and Raj was placed under suspension. He went home and committed suicide. On his wife’s complaint the Noida police registered a case of abetment of suicide against the two lady complainants and members of the ICC. Not only does this fly in the face of the SC ruling, it is also a major set back against efforts to ensure the safety of women in their work places: it will seriously discourage women from coming forward to complain about inappropriate behaviour by male colleagues. The issue here is not whether the molestation complaint against Raj was correct, for that is something the ICC to adjudicate on. The objection is to the hasty and knee jerk over reaction of the police: making a complaint to the rightful authority can in no way be construed as instigating a person to kill himself or aiding in that act.

   In a more recent case, on 1^st August 2019, a 25 year old marketing executive in Gurugram killed herself because her boyfriend refused to marry her. She did not leave behind any suicide note or accuse him, but her parents did. A case of abetment to suicide has been lodged against him, without any evidence whatsoever. This in spite of the fact that it was this boy friend who had called the police station the same day to warn them that the woman might commit suicide after an argument with him!

   Such instances of disregard of even Supreme Court and High Court rulings appear to be on the rise, and it does not bode well for our criminal justice system. But the onus to correct this does not lie on the police alone, the trial courts too have to accept their fair share of the blame. For it is the lack of scrutiny by them of the charge sheets/ complaints that allows such cases to be admitted for trial; they fail to act as counter checks on the police. Sometimes they even entertain such frivolous and baseless( in law) complaints directly, as in the instance of a West Bengal judge issuing an arrest warrant against Shashi Tharoor  for having stated, 18 months ago, that India was becoming a Hindu Pakistan. The warrant has been stayed by the High Court on the ground,inter-alia,that it is without jurisdiction.                                                                    The police/ prosecution agencies may claim ignorance of the law but surely the courts cannot be allowed this privilege. It is indeed time for the higher courts to carry out the threat held out by the apex court- hold such police officers and even trial judges to account for contempt. That at least would be legal.

KASHMIR NEEDS ITS OWN, DISTINCT MODEL OF DEVELOPMENT.

                   

   These days everyone with an IQ above 30 ( Arnab Goswami just about makes the cut) considers himself an authority on Articles 370 and 35A. After their revocation we all wait with bated breath ( Mr. Jaitley was even admitted to hospital with breathing problems) for its political and legal consequences to play out. We are told that this is going to be a five day test match with pellet interruptions, not a T-20, so we shouldn't hold our breath. It's a good time to go back to Pranayam. I've decided to light a cigarette instead because I know how things will turn out, you see. The Supreme Court ( where a challenge has already been filed) will at best recommend another mediation by Shri Shri Ravi Shankar, given its current orthopedic status. Politically the BJP will win at least 400 seats in Parliament at the next elections in 2024, after having carved up some more irritating states like  turkeys during Thanksgiving. So these are not issues that merit any further discussion, and I do not propose to do so either. I am on another issue altogether- the promised development of the vivisected Kashmir valley and Ladakh.

   The Prime Minister himself announced the other day that achhe din were about to dawn for Kashmir and that it would no longer be the wasteland it currently is- pervasive  poverty, no social services, no health or education, rampant unemployment, corruption, and so on. With the kind of industrial, power and tourism initiatives the central govt. has in mind Kashmir would soon become a land of milk and honey: it would become a model of development for other states. Fine words, and I hope the Kashmiris in the valley, sans internet, TV or telephony, heard them. No doubt they wept with joy and relief.

   But there is a seminal problem with this line of argument and this vision- actually, two problems. First, Kashmir is nowhere near being the netherworld or failed state it is being made out to be; in fact, all the social, economic and human development indicators ( as per the govt's own figures) are better than most states and also compare very favourably with the national figures. Its position is far, far better than the state from where the Prime Minister has been elected. Here are some figures:

                                           PRIME INDICATORS OF DEVELOPMENT

           SECTOR                           JAMMU AND KASHMIR       UTTAR PRADESH

           Potable/tap water                         64%                                           27%                   [ % of pop.]

           Toilets                                          51.2%                                        36%

           Power consumption                     1199                                          593                   [ units/h'hold]

           Phones                                          91                                             74                     [per 100 pop.]

           Life expectancy                            73.5 yrs                                    64.8 yrs.

           GDP per capita                             Rs.1.02 lakhs                            Rs.57,024        [2016-17 figs]

                                                                 [ The all-India figure was Rs.1.17 lakhs]

           Poverty ratio                                 10.35%                                     23.95%            [2011 census]

                                                                 [ The all-India figure was 21.92%]

           Hospital beds                                1/ 1066 pop.                              1/2904 pop.

           Unemployment                             5.3%                                          6.4%

           Total Fertility Rate(TFR)              1.7%                                          3.1%

           Birth rate                                        15.7                                           26.2               [per 1000 pop]

           Infant mortality rate                        23                                             33

           Sex ratio                                         917                                             912               [All-India 896]

           Literacy rate                                   67.2                                           67.6

It is quite clear that Kashmir is not the basket case it is being made out to be, notwithstanding the unremitting decades of violence it has witnessed: it is far more developed than many states and years ahead of BJP's flagship UP.  Of course, any further development is always welcome but the narrative that its " underdevelopment" is the cause of all its problems is patently fallacious.

   Secondly, one cannot but be apprehensive of the TYPE of development which Kashmir has been promised, without any regard for its distinctive mountain topography and ecology. It has been indicated that all types of heavy and manufacturing industries will be set up there, hydel projects, massive road construction, even building new cities. Heavy lifters like Reliance Industries are already lining up, licking their chops at the prospect of appropriating the massive, untouched natural resources of the state. Massive tourism projects have been envisaged for Ladakh. This will be a disaster for the state. We only need to look at what has happened to the likes of Himachal and Uttarakhand, which followed the same get-rich-quick route, and ended up with their environments devastated by excessive construction, unmanageable traffic chaos, mindless road building, conversion of once idyllic towns to urban slums, more garbage than trees on its mountains, rivers choked and rendered lifeless by hydel projects, waterways polluted by all manner of industries and mining projects. These states have lost more and gained little from this industrialisation, either in revenues or employment. Their two traditional activities- tourism and horticulture- continue to be their mainstay.

   Which is precisely the lesson to be learnt now for Kashmir. It has done very well from its traditional sectors: tourism, adventure sports, horticulture, handicrafts, dry fruits, pastoral trades. These are all environment friendly and completely in tune with its ecology and terrain. It is imperative to preserve these and to follow a development path which retains Kashmir's ecological and cultural sensitivity. Rather than the pure capitalist model, Delhi should look at the Bhutan model which blends GDP, GNP ( Gross National Happiness) and GHG ( Green House Gas) values. Bhutan's spectacular success in implementing an equity-centric policy rather than a growth-centric one, a socio-environmentally oriented development philosophy, maintaining a balance between tradition and modernity, has paid the country rich dividends. It has a 71% forest cover, is the only carbon neutral country in the world, its GDP has been growing at an average of 7.5% over the last decade, it has a poverty ratio of just 2%, its per capita GDP at US$ 2897 ( 2016 figures) is higher than ours. Bhutan has given the lie to the western concept of development which postulates that development is not possible without environmental degradation, social inequity and loss of traditional ways of life in the short and middle terms. It has now become a case study for far more "advanced" countries.

   If at all "development" has to be thrust upon Kashmir ( and the centre seems hell bent upon doing so) it should follow the Bhutan model. The economic "transformation" of the state( now of course a union territory) should not become an excuse for ruthless exploitation of natural assets, or land grabbing, or demographic change, which is what the Kashmiris fear. At a recent conclave of Himalayan states in Mussoorie all of them stressed that they should have a separate model of development given their distinct topography, climate, culture and natural environment. Kashmir gives our policy makers a unique opportunity to adopt such a template. It will also reassure the Kashmiris. We have decided in our wisdom, or lack of it, that Kashmir needs a new beginning. The least we can do now is to ensure that it is a sustainable and equitable one, and that we do not replace one set of carpetbaggers with another.
  The irony, if not tragedy, is that it did not require carving up the state into two, or converting it into a union territory, to achieve the "development" of Kashmir!

FROM THE DISTRICT DIARIES--- SPY VERSUS SPY.

   Reading is not a rewarding pastime these days. There are far too many idiots on the loose expressing ante-diluvion views or singing hosannas to the presiding deity. Occasionally, however, one stumbles on a nugget: I did recently, in the form of a new word- "parabiotic". It means two living objects sharing a common circulatory system, like conjoined twins, for example. And it immediately brought to mind a memory from my district days- the relationship between a Deputy Commissioner (DC) and the Superintendent of Police (SP).

   The DC(also known as District Magistrate or Collector) and the SP have a distinct parabiotic, interdependent  relationship, they have to work in tandem, otherwise the district is likely to fall apart, as is happening in Unnao (UP) these days. It's a very critical kinship and not always easy to sustain, for many reasons. Firstly, there is the traditional rivalry between the IAS and the IPS based on the fact that the former took two extra papers in the UPSC exams, but the latter is better at horse riding! Secondly, the SP is usually older in age and year of allotment, if not also in sin, than the DC and therefore finds it difficult to accept the DC as the team leader, if not the boss. During my two stints as DC I had to contend with five SPs, all senior to me by one to seven years. It requires a delicate balancing act to keep this relationship going successfully-think wife instead of SP and you'll grasp what the problem is.

   Each is always trying to out- Herod the other, blame the other when things go wrong, and impress the Chief Minister. The nearest analogy I can draw is the Spy vs Spy duo in those comics we used to read in better days when there was no Whatsapp or Man ki Baat. I got my first taste of this parabiotic dividend when I was barely three months old in my first district. The SP was a gnarled, promotee veteran of 45, battle scarred and as straight as a wine opener. I was 27 years old, fresh from Hindu College and cocky as hell; I figured that if I could survive eating in the Hindu College mess, snatch my share of chapatis from those hulking Jats, I could take care of myself anywhere. Imagine my shock, therefore, when one morning the Chief Minister's office asked me to explain why I had accepted a gift of mangoes at my residence from a stranger! The mangoes (all two kilos of them),  had in fact. been given to me by the local MLA and were from his own orchard, albeit the orchard was on encroached forest land as is generally the case in Himachal. I would probably have been dismissed from service  in today's 360 degree surveillance state, but at the time my simple explanation sufficed. The issue, however, was different: who was keeping watch on me and ratting to the CM? It turned out that the SP had planted a beggar at my gate to record all visitors and report to him every evening! The mendicant was promptly picked up by the Tehsildar and dispatched to Chintpurni temple to earn an honest living; the SP lost his eyes and ears and I have since then lost my taste for mangoes.

  The SP then engineered (I suspect) a strike by lawyers over the allotment of rooms in the Collectorate. The revenue cases started piling up but I stood my ground. The SP was sending daily reports to the CM that another  Champaran type Indigo revolution was in the offing. He then offered to mediate, I accepted and  a deal was struck with the Bar. He came out smelling of roses; I smelt like one of Mr. Modi's ostensibly  defecation-free villages. Lesson learnt- trust the SP like you would Mr. Amit Malviya with facts.

   My second district was even more interesting and educative. The immediate challenge I had to confront on joining was election to the post of President of the District Officers' Club. All districts have these clubs, and although they are a far cry from IIC (India International Centre) and Gymkhana they are the only available watering holes, and all manner of departmental species converge there. It is an accepted that the DC, being the Capo di tuti capi (or head of the local Mafia), shall be its President. But I had a problem. My predecessor was a gentle, placid type who had had no interest in the Club; his only passion in life was to collect old newspapers. He took one truckload of them from the DC's residence when he departed, no doubt as a cushion against inflation.  During his tenure the SP (considerably senior to me) had staged a Maldives kind of coup and more or less taken over the running of the Club. He had now thrown his peaked cap into the ring against me!

  Now, an election to the post of President of the Officers' Club is very similar to that of the Congress President- there is only one name on the ballot (the DC's) and it goes uncontested. On this occasion, however, I had to follow Mr. Amit Shah's drill, so thrillingly on display last week in the Rajya Sabha. Emissaries were dispatched to officers of an independent mind to gently remind them  who would write their ACRs (Annual Confidential Reports), monitor their target achievements and sanction their leave. The SP smelt the wind, withdrew his name from the ticket, and I became President: democracy had won again!

   Switch to the early 80's and Shimla district which was then ruled by a DC-SP duo of exceptional political skills. They realised very early that Shimla- the state capital- was a different kind of pond. Unlike other districts, where the SP/ DC are numero unos in their respective areas, Shimla had plenty of bigger sharks prowling its murky depths- Ministers, Chairmen, Secretaries, DGPs and Heads of Departments, all vying for a big slice of power and influence. Our duo realised that to survive they had to work together to grab the CM's attention and favour. So they teamed up in a perfect parabiotic conjunction to keep all others out; so unremitting, devious and ingenious were their moves that they soon acquired the moniker of Ranga- Billa. The CM was never out of their sight: Ranga would tuck him up in bed at night and Billa would bring him the bed tea next morning. The CM did nothing without consulting them, met no one without the duo screening every visitor, went nowhere without one of them in tow. Ranga- Billa's  rule was complete and lasted till they retired, in true Mughal fashion.

   There is much both the IAS and IPS could learn from this duo, about how to sink your differences when confronted with a common enemy. Unfortunately, both are now long gone, otherwise they could have given some much-needed advice to the Opposition, particularly the Congress. It is still not too late, however, to introduce the Ranga- Billa theory of administration in the IAS Academy at Mussoorie as part of the civil service reforms being contemplated by the govt ! Over to the Cabinet Secretary.