LEGAL NEWS 18.11.2009

Madurai HC Bench takes cognizance of PIL against India playing cricket with Sri Lanka

Wed, 2009-11-18 01:23 — editor

By Gopal Ethiraj, Chennai

Chennai, 18 November (

The Madurai Bench of the Madras High Court on Monday took cognisance of a public interest litigation petition filed by a lawyer to ban the India playing cricket with Sri Lankan in future, including the ongoing home series, as a mark of protest against alleged genocide in the island nation.

The petitioner, A. Joel Paul Antony, had originally filed the PIL petition last month to restrain the Indian team from visiting Sri Lanka to participate in a tri-series held in September. The Court on September 9 had dismissed a sub-petition seeking interim orders and kept the main petition pending.

Now this main PIL petition came up for hearing before the Division Bench of Justices D. Murugesan and S. Nagamuthu on Monday when the lawyer filed an amendment petition to alter the relief sought for.

He now wanted the court to ban all future matches between the two countries including the current series comprising three test matches, five one-day internationals and two Twenty-20 matches to be held until December 27.

The Bench accepted the amendment petition without insisting a fresh PIL petition. They also directed the Centre as well as the Board of Control for Cricket in India to file their counter affidavits by November 30.

“Ordering the amendment petition does not mean deciding the issue on merits,” the judges said.
When the sub-petition was dismissed on September 9, a Division Bench of Justice P. Murgesen and Justice C.S. Karnan pointed out that the Supreme Court in 2006 had held that courts should not interfere in matters related to Government’s foreign policy. The BCCI counsel then had argued that preventing the Indian cricket team from going to Sri Lanka might affect the relationship between the two countries.

In his counter affidavit, N. Srinivasan, Honorary Secretary, BCCI, had said that the cricket board was not created by any Statute. No part of share capital was held by the government. Practically, no finance was given by the Government to meet the Board’s expenditure and there was no deep and pervasive State control.

– Asian Tribune –







Gujarat HC dismisses PIL against Advani


Ahmedabad, Nov 18 (PTI) The Gujarat High Court has dismissed a public interest litigation (PIL) seeking directions from the court for senior BJP leader L K Advani to pay attention to his Parliamentary constituency Gandhinagar.

A division bench of Justices M S Shah and S D Dave dismissed the PIL yesterday filed by K D Pandya, saying that it was “misconceived”.

Eighty-year-old Pandya in his PIL had said that before Advani expresses his loyalty to his party, he should be loyal to the electorate of Gandhinagar.

MPs in India take important decisions without consulting the electorate and there is no participation on part of the citizens in the decision-making process, he said.

Hence, the MPs should be directed to take a referendum before taking important policy decisions, he said.

The petitioner said that Advani could build an electorate forum in his constituency, which could deliberate on various issues and recommend solutions to the MP.







Supreme Court Bar Association for Justice P D Dinakaran to resign

The exclusion of Karnataka High Court Chief Justice P D Dinakaran while four other Judges were elevated was followed by a call for his resignation.

The call came from Supreme Court Bar Association president M N Krishnamani who also urged the Apex Court Collegium to drop the Judge name from consideration.

‘Justice Dinakaran should in all fairness resign,’ Krishnamani said in a telephone interview repeating earlier stand against such a Judge continuing as Chief Justice.

The Apex Bar spokesman had made his point in a petition to Law and Justice Minister M Veerappa Moily released to media exactly two months ago.

‘If a judge, because of his doubtful integrity… cannot be elevated to the Supreme Court, certainly he has no right to continue as CJ of the High Court as well,’ he said.

‘His continuance as a judge may also have to be objected to, apart from not elevating him to the Apex Court. The position of a Chief Justice of the High Court is more pivotal than that of a puisne judge of the Supreme Court.

Justice Dinakaran was among five senior Judges tipped to be elevated to India Apex Court until allegations surfaced about his having encroached huge parcels of public land.

The other four High Court Chief Justices were Ananga Kumar Patnaik of Madhya Pradesh, Tirath Singh Thakur of Punjab and Haryana, Kalavamkodath Sivasankara Panicker Radhakrishnan of Gujarat and Surinder Singh Nijjar of Calcutta.

The recommendation came in September but was mired in controversy over Justice Dinakaran alleged involvement in land-grabbing.

Thiruvallur district collector V Palanikumar has reported that Justice Dinakaran encroached 197 acres of public land around his property in Kaverirajapuram village in Chennai, published accounts say.

Summoned by Chief Justice of India K G Balakrishnan in September, Justice Dinakaran reportedly assured the CJI he had not acquired any land after his appointment as a High Court Judge.

Critics say the reported assurance and the implicit suggestion that any land-grabbing may have preceded the appointment is a reflection of the appointment system.

The delay in dealing with the issue held up the other four appointments, which finally went through .

Until they were sworn in, the 31-member apex court had nine vacancies.

Reached on his cell this evening for comment, Krishnamani said it was time the Collegium dropped the Judge from its consideration instead of waiting for more evidence.

‘The collector second report, which confirms wrongdoing, is already with the Collegium. There is no point in waiting for more. A mere suspicion about someone integrity is ground enough for the Collegium to act in such matter.’ The Collegium led by the CJI includes Justices S H Kapadia, Tarun Chatterjee, Altamas Kabir and R V Raveendran.








Despite High Court order, recruitment rules still absent from MCD schools–recruitment-rules-still-absent-from-MCD-schools/542952/

Maroosha Muzaffar

Posted: Wednesday, Nov 18, 2009 at 0033 hrs New Delhi:

Two years after the Delhi High Court asked the Municipal Corporation of Delhi (MCD) to appoint 25 per cent of principals for its schools by direct recruitment, no recruitment rules (RR) have been framed so far.

At present, principals are appointed by promoting teachers on a seniority basis.

The MCD, meanwhile, has “resolved” to fill all vacant posts within six months.

The High Court in March 2007 had directed the MCD to recruit 50 per cent of its principals of the schools directly “to improve the supervisory staff”. The MCD, meanwhile, proposed to fill 25 per cent posts of principals by direct recruitment.

“Since then, there has been no change in the existing RR, no new RR has been framed,” MCD Education Committee Chairperson Prithviraj Sahni said. “We have been writing letters to the government to notify the RR.”

He also pointed out that the Delhi Services Selection Board (DSSB) is taking a long time to frame the recruitment rules.

There are 1,752 MCD-run schools across the city.

Sahni said there is a shortage of about 200 principals “and we have demanded 4,000 teachers from the DSSB for MCD schools. In the next week, we will promote teachers to the post of principals to tide over this situation”.

The High Court direction came after the sorry plight of MCD schools was brought to its notice. The MCD had then agreed to implement the order within six months and had also resolved to form recruitment rules.

The MCD teachers, meanwhile, are also crying foul. “Teachers employed on a contract basis have been working for the past eight years and have still not been regularised,” MCD Teacher’s Association Secretary Vibha Singh said. For the last eight years, MCD-run schools have not recruited any nursery teachers in spite of vacancies, sources said.








Eunuchs to indicate their gender as ‘other’: Election Commission

by ANI on November 12, 2009

New Delhi, Nov 12(ANI): In a significant decision, the Election Commission of India has decided to allow eunuchs/transsexuals to indicate their gender as ‘other’ where they do not want to be described as male or female.

Besides the electoral roll, the decision also applies to all other forms used by the Commission wherein the provisions of indication of gender of the elector is made, including IT based formats and website.

Necessary instructions have been issued to all Electoral Registration Officers through the Chief Electoral Officers of all States and Union Territories to give effect to the above decision of the Commission.

Enumerators and Booth Level Officers (BLOs) shall be instructed to indicate the gender of eunuchs/ transsexuals as ‘O’ if they so desire, while undertaking any house-to-house enumeration/verification of any application.

Earlier, the eunuchs were registered either as male or as female, on the basis of the statement made by the person concerned. This practice was being followed so far for indicating the sex of the eunuchs in the electoral roll.

The decision was taken as the Election Commission was receiving representations from various individuals and interest groups, including some students of the Law Faculty of KIIT, Orissa, when the Chief Election Commissioner Naveen Chawla was addressing the students, to include the eunuchs in the electoral rolls with an independent identity. (ANI)






HC stays BBMP move to demolish Ittamadu flats

Odeal D’Souza / DNA

Wednesday, November 18, 2009 9:33 IST

Bangalore: The High Court of Karnataka on Tuesdayrestrained the Bruhat Bangalore Mahanagara Palike (BBMP) from going ahead with the demolition of a portion of Terrace Garden apartments in Ittamadu area for the expansion of a storm waterdrain.

Dismissing a petition filed by VN Natarajan and others, justice HN Nagamohan Das stayed the demolition process of the BBMP for a period of two weeks and directed the petitioners to file a civil suit in the lower court.

The petitioners had contended that the BBMP had decided to widen a 20 feet stretch of the storm water drain in survey number 1/3 in Ittamaduand decided to demolish one block of the apartments. The widening of storm water drain was not in the original proposal of the BBMP, and the civic body later digressed from its original plan, the petitioners argued.

The BBMP has no power to demolish any portion of the apartment as it was approved by the BDA. The petitioners had sought a directive to the BBMP not to digress from its original plan for storm water drain works.






HC grants bail to Vedic Village MD

TNN 18 November 2009, 08:04am IST

KOLKATA: The Calcutta high court on Tuesday granted bail to Raj Kishore Modi, managing director of Vedic Village, in three criminal cases.
While granting bail, a division bench of Justice D P Sengupta and Justice Shyamal Kanti Chakraborty restrained Modi from entering the Rajarhat police station area and directed him to meet the investigating officer as and when required.

Modi was arrested on August 29 in the wake of violence during a football match in Rajarhat on August 23, in which a villager called Amirul Sardar was shot dead. According to prosecution, local tough Gaffar Mollah and his associates had hurled bombs and opened fire after the match. Amirul received a gunshot and died on the spot. An angry mob then attacked the five-star Vedic Village resort and torched it.

Rajarhat police registered a murder case against Modi and Gaffar on the basis of a complaint lodged by the victim’s brother, Manirul Sardar. A huge cache of explosives was also seized from Vedic Village. Zulfikar Mollah, sub-inspector at the Rajarhat police station, conducted a raid and registered a complaint, saying Gaffar and his men kept the arms in a room at the resort.

The third case was initiated on the basis of a complaint lodged by Tara Shankar Nath, who alleged that Modi and his aides grabbed a plot of land he owned in Bishnupur mouza — which measured around 21 chittacks — by making forged documents. Police started a case against Modi under Sections 467/468/471/420/34
and 506 of IPC.

Modi moved bail applications in the high court after his bail plea was turned down by the chief judicial magistrate, Barasat.

Modi’s lawyers Sekhar Basu and Milan Mukherjee claimed that he was in no way involved in any offence as had been alleged in the FIRs. Pleading for Modi’s bail, the lawyers pointed out that the investigation was over and their client had been in custody for more than 78 days. Modi was a “respectable person who suffered from cardiac ailments”, they added.

During the hearing on Modi’s alleged role in land-grabbing, his lawyers argued that the case was based on documents that had already been seized by the police. So, Modi’s detention was no longer required in this case, they added.





HC rejects writ against A-G

TNN 18 November 2009, 07:30am IST

PATNA: Patna High Court on Tuesday rejected a public interest litigation, challenging the appointment of advocate-general P K Shahi and continuance of Lalit Kishore as the additional advocate-general (AAG).

A division Bench, comprising acting Chief Justice Shiva Kirti Singh and Justice Shyam Kishore Sharma, rejected the submission of petitioner Praveen Kumar that his writ be treated as PIL when the court was told that the petitioner was a political (Congress) leader.

Kumar claimed that Shahi was not eligible to become a high court judge on the basis of a high court order and so he could not be made advocate-general, which is a constitutional post. The petitioner further claimed that as Lalit Kishore had appeared in a case for chief minister Nitish Kumar, he should not be allowed to continue as AAG.

Government advocate Shyam Kishore Sharma challenged the maintenance of PIL on the ground that “the PIL was frivolous and politically motivated”.

Bar Council elections: As many as 105 lawyers have filed their nominations to contest the polls for 25 members of the Bihar State Bar Council till Tuesday, with just two days remaining for the filing of nominations. The elections will be held on January 8, 2010.

Those who filed nominations included former State Bar Council chairman Rajendra Prasad Singh, Shyama Prasad Mukherjee, Yogesh Chandra Verma, Surendra Kumar Singh, Awadhesh Kumar Pandey, Kumar Amitesh, Rajeev Kumar Verma, Manan Kumar Mishra, Rama Kant Sharma and B K Singh.

The main election plank of these lawyers would be to highlight the issue of lawyers’ welfare, including an increase in the amount for lawyers’ welfare and a substantial increase in the payment of money to retiring lawyers. Adequate seating arrangements for the lawyers in the courts across the state including Patna High Court is the major issue he would take up on getting elected, said Surendra Kumar Singh.








Monika case: Police report rejected, HC mulls probe by CBI

Abhinav Garg & Rahul Tripathi, TNN 18 November 2009, 05:36am IST

NEW DELHI: Observing that prima facie it seemed to be a case of honour killing, the Delhi High Court on Tuesday lashed out at the Uttar Pradesh police for its failure to probe the murder of a girl over caste tensions.

While rejecting a status report submitted by the UP police, a division bench of Justices S K Kaul and Justice Ajit Bharihoke demanded an explanation from the DGP and Home Secretary, UP, over why the charge of murder wasn’t framed against the girl’s family. The court also asked the UP government to show cause why a CBI inquiry should not be directed into the murder of Sahibabad girl Monika Dagar who had married Gaurav Saini of Delhi against the wishes of her family in July this year.

The UP police had informed the Bench that they had lodged an FIR in the case where Monika went missing and was later found dead under mysterious circumstances. The cops said they had zeroed in on nine persons, including her mother Yashoda Devi and brother Nitin. The bench was further informed that an earlier FIR was lodged under a wrong provision and initial police inaction is being punished by placing one of the officers under suspension and an inquiry being ordered against him.

The court however was far from impressed and noted that even under the FIR mild provisions have been slapped against the accused even though the girl was allegedly murdered. The court was hearing a habeas corpus petition by Saini.

The case was first reported by TOI on Sep 21. According to the petitioner, he had married Monika on July 6 this year at an Arya Samaj temple at Malviya Nagar, south Delhi. On July 5, Monika’s brother Nitin Kumar filed a complaint of kidnapping against Gaurav at a Sahibabad police station. The Sahibabad police along with Delhi Police allegedly picked up Monika and Gaurav on July 12 after which the duo was taken to Sahibabad where Gaurav was detained illegaly and sent behind bars for 32 days.

He was finally granted bail on August 11 after which he moved Delhi HC, filing a habeas corpus case seeking Monika’s presence. When HC sought her presence by October 7, the Delhi and UP police informed the court that Monika died on September 17. Moreover, she was cremated by the family members and there was no postmortem conducted, as her relatives claimed she was suffering from lung infection. It was then that HC sensed something was amiss and directed lodging of an FIR.

The girl’s husband Gaurav Saini said, “I am hopeful that if CBI investigates, the truth will come out. I still hope that Monika is alive and if cops make an effort, she can be traced.” The couple met in 2006 over internet chat and soon became friends. Monika was pursuing BSc from a university in Sonepat at that time. Three years later, the two decided to marry against the wishes of the family members.








HC pulls up school for letting 8-yr-old drive car

TNN 18 November 2009, 06:50am IST

CHENNAI: Turning the spotlight on the menace of underage children being allowed to drive vehicles, the Madras High Court has ordered inquiry against a school which helped an eight-year-old boy to flaunt his car driving skills in July this year.

As if the high-speed escapade of Naveen Kumar, who drove a car at 100-120 kmph on a national highway, was not enough, the school filed an affidavit in the high court stating that it was an event organised to ascertain the “individual capacity” of children.

Lambasting the management of Jayaseelan Matriculation School at Batlagundu in Dindigul district for its stance, the first bench comprising Chief Justice HL Gokhale and Justice N Paul Vasanthakumar said: “This shows that the school authorities have clearly permitted this young eight-year-old child to run the motor vehicle, which was obviously without a valid licence… There are people who consider this as some sort of a feat and an achievement, which is most unfortunate, to say the least.”

Naveen Kumar, a class IV student, demonstrated his skills in front of a big gathering, including his father Palaniappan and other school and police authorities.

After the news item was reported by a Tamil daily on November 15 a public interest writ petition was filed to draw the court’s attention to the dangerous trend.

Weeks after the court issued notice to the authorities, the director of matriculation schools issued a circular on August 5, criticising the incident and warning the school authorities of severe action if such acts were repeated in future. The subordinate officials were asked to circulate the copies to other matriculation school managements.

But, the affidavit filed by the school authorities prompted the first bench to order inquiry against the school. Taking exception to the affidavit which stated that Naveen’s feat was a “one-day affair”, the judges said: “It will be in the fitness of things that the state government conducts an inquiry to find out as to who were responsible for encouraging such dangerous activity by school children.”

In another shocking incident in July this year, a government elementary school in Villupuram district had organised a bravery show’ in which a motorcyclist rode over the outstretched hands of some students lying prone on the ground. The incident had evoked strong protests from child rights activists, who wanted the government to sensitise the teaching fraternity on the basic rights of children.







HC issues warrant as cop ignores summons 9 times

TNN 18 November 2009, 06:23am IST

CHENNAI: The Madras high court has issued a non-bailable arrest warrant (NBW) against an inspector of police, who did not respond to the court’s notice and several reminders thereafter in an industrial accident case.

Justice CT Selvam issued the NBW against inspector of D-6 Maraimalai Nagar police station on Tuesday, and directed the policeman to be in court on December 1.

According to the petition filed by R Dulasidoss of Cuddalore district, his 19-year-old electrician-son, D Laxman, fell down from the second floor while working at a building under-construction at the industrial estate in Maraimalai Nagar, about 50 km from here. Immediately after the incident in November 2008, the management rushed the youth to a nearby medical college hospital and admitted him, saying he had met with a road accident.

Apparently to escape liability, the management, police and a local councillor threatened the father of the deceased to lodge a complaint stating that his son had committed suicide. The “innocent, less educated and frightened” father was forced accept Rs 1.25 lakh from the management and sign several documents.

The present petition was filed seeking transfer of investigation of the case to the CB-CID. Despite an initial notice and at least eight subsequent reminders, the Maraimalai Nagar inspector of police did not bother to come or respond to the query.

Advocates V Ragupathi and VS Suresh, counsel for the petitioner, told the court that there were several contradictions in the police version, as is evident from the fact that while one witness contended that the death was due to road accident, another witness said it was due to a fall from second floor. Yet another witness said Laxman had fallen from the first floor.

The petitioner said the management did not provide safety provisions to its workers, and added that it had made Laxman work up to midnight without any light or other safety measures. Accusing the management of influencing the police, the petitioner wanted the case to be entrusted with the CB-CID for fair probe.







HC suggests CBI probe into Faizabad CMO scam

TNN 18 November 2009, 07:01am IST

LUCKNOW: The high court on Tuesday remarked that multi-crore scam in the office of chief medical officer (CMO) Faizabad required CBI probe, though restraining itself from passing the order till further consideration on December 14. However, the court took strong exception to the accused continuing on their posts and ordered the government to transfer all the officials named in the PIL from the said office.

The bench comprising Justice Pradeep Kant and Justice Ritu Raj Awasthi passed the above order on a PIL filed by Viklang Kalyan Mahasangh through its lawyer, Anurag Narayan. The bench observed that it was a fit case to send the same for a CBI inquiry for which chief standing counsel, Devendra Upadhyay, appearing for the state government had no objection.

The officers who are charged in the petition be posted somewhere else other than the posts on which they are working, said the court. CSC said that state would take appropriate action and submit improvised counter-affidavit stating the action taken by the government in the matter.

Petitioner’s counsel, Anurag Narayan had vehemently argued that the CMO office, Faizabad, was involved in corruption and financial irregularities. He submitted that the officials were misappropriating public money and property belonging to the office and causing loss to government and public exchequer.

The PIL counsel attached voluminous documents with the PIL which prima facie made out a case that there was corruption and anomalies in the office. The allegations levelled in PIL ranged from misappropriation of crores of fund to forged appointments. Even life saving drugs to the amount of Rs 1.5 crore were burnt due to fear of being caught for anomalies. The scams were of different nature.

In 2005, an MLA Dhyan Chaudhary raised the question of corruption prevailing in the CMO office and the then chief minister had assured inquiry into the matter. But the matter remained in files only. The petitioner contended that as the officials had great political patronage and the money was distributed from top to bottom, the matter was put under wraps. The court has fixed December 14 for the next hearing on the matter.








Kaverirajapuram case: Govt files report, HC reserves order

TNN 18 November 2009, 05:57am IST

CHENNAI: After marathon arguments on whether or not to implead the non-governmental organisations in the writ petitions filed by a group of villagers of Kaverirajapuram in Tiruvallur district, the Madras High Court on Tuesday reserved its orders. Justice K Suguna reserved the orders without mentioning any date.

The villagers, claiming ownership of anadheenam (abandoned private) lands around the property of Karnataka High Court Chief Justice PD Dinakaran in the village, had even obtained an order of status quo last week. But the two implead petitioners wanted the case to be reviewed on the ground that many material facts were not brought to the notice of the court. The court had then directed the government to submit an affidavit stating as to whether these lands were covered by the Tiruvallur collector’s report to the Supreme Court collegium. The government on Tuesday submitted the report in a sealed cover, but N Jothi, counsel for the villagers, requested the court not to read it as it would amount to interference in the proceedings of the SC collegium.

Jothi told the court that its November 6 order, directing the tahsildar to consider the claims of the villagers and pass orders, had been dictated in the open court and hence it was not proper to reopen or review it. Noting that the court ought not to have called for the collector’s report, he said even if the court chooses to re-hear the case it should not read the collector’s report, which had been sent directly to the Supreme Court.

Advocate R Vaigai, noting that the court was not looking into the fitness of any person to be elevated to the Supreme Court, said it was not about any proceedings pending before the apex court. The lands mentioned in the writ petitions are the subject matter of the Supreme Court collegium proceedings, she said, adding that the state government has not filed any affidavit about the action taken against anyone under the provisions of the Land Encroachment Act.

Senior advocate Sriram Panchu, cautioning the court about miscarriage of justice, alleged that the petitioners had suppressed and misrepresented facts in court, and their petitions were not supported by valid documents.








Doctors ignore HC, strike on

Sreenivas Janyala

Posted: Wednesday, Nov 18, 2009 at 0350 hrs Hyderabad:

Health and medical care services were crippled across the state as the junior doctors’ strike entered its fifth day on Tuesday despite a Andhra Pradesh High Court’s directive restraining the 1,200 medicos from striking work.

As the condition of the six doctors who are on indefinite fast deteriorated and police lathicharged agitating medicos at the Gandhi Hospital here, the junior doctors also kept themselves away from emergency services for a few hours.

Though the teaching hospitals made alternative arrangements by cancelling leave of senior doctors, some of whom were also forced to do double shifts, they could not ensure normal services. Health Minister Danam Nagender said the existing staff at the government hospitals were unable to handle the rush of patients, particularly in outdoor patient services. The rush of patients is also high due to seasonal sickness like malaria and viral fever. “The government’s offer has been rejected by them. We are still negotiating with the doctors and hope to resolve the issue today itself,” he said.

The Andhra Pradesh Junior Doctors’ Association rejected the state’s offer of a consolidated pay hike, saying their demands should be met to implement the pay structure recommended by a committee of experts constituted by the government. The medicos were demanding a hike in stipend for house surgeons from Rs 5,060 to Rs 12,000 per month and for postgraduate medicos from Rs 8,395 to Rs 30,000. “Medicos in Andhra are paid the lowest stipend in the country. We are not demanding that we be brought at par with medicos in other parts of the country, we only want a marginal increase now,” P Karthik Reddy, one of the student leaders said.

On Tuesday, the state agreed to increase the stipend to Rs 7,000 for House Surgeons and Rs 17,000 to PG medicos, but the offer was rejected by the striking doctors. The student’s union has rejected accusations that their absence had led to the death of six babies at the Vijayawada Hospital on Sunday.








Indian dossier on Mumbai given to Pak HC in New Delhi: FO

November 17, 2009

ISLAMABAD: Pakistan on Tuesday said the Indian Ministry of External Affairs handed over another dossier on Mumbai incident to its High Commission in New Delhi today evening.“

Arrangements have been made for the receipt of the dossier in Islamabad, says a press statement issued by the office of foreign office spokesman here.

“Once received, the dossier will be forwarded to the Ministry of Interior for examination,” the statement added.







SC judges split on judiciary’s power to make laws

PTI 18 November 2009, 03:55am IST
NEW DELHI: An SC bench of Justices Markandeya Katju and Asok Kumar Ganguly has come out with a split opinion on the judiciary’s power to frame laws, with one judge insisting it cannot act as an ‘interim Parliament’ while the other reasoning that it can pass any order in the interest of justice.

Justice Katju has said it is for Parliament alone to make laws on sexual abuses at work places, poverty, price rise and unemployment. He found fault with SC ruling in 1997 in the ‘Visakha case’ where it had directed that special committees be constituted to deal with sexual offences against women at workplaces.

“It is true that this court has often being doing legislation in various decisions but the question remains whether this was constitutionally valid… While we fully agree that working women should be protected against sexual harassment, the constitutional question remains whether such directives by this court are constitutionally valid?” Justice Katju said.

Justice Asok Kumar Ganguly argued: “In so far as judicial power is concerned, no such limitation has been imposed under the Constitution. Rather, the conferment of judicial power under Articles 141, 142, 32 and 226 has been plenary and very wide and enable the Supreme Court to declare the law which shall be binding on all the courts within the territories of India and Article 142 enables the Supreme Court to pass such order as is required to do complete justice in the case,” he said.







Lift The Veil Of Secrecy

Ronojoy Sen18 November 2009, 12:00am IST

Rarely has the judiciary grabbed headlines as in the recent past. And that too for mostly the wrong reasons. The ‘voluntary’ declaration of wealth by Supreme Court judges comes after a contentious debate over whether the judiciary should be treated on a par with other public officials. The matter is not a closed chapter by any means. A court-room battle is still being fought over whether the Right to Information Act applies to judges with the somewhat absurd situation of the Supreme Court contesting a high court ruling.

The declaration of wealth also comes in the wake of several corruption scandals, many of which are yet to be resolved. The list is long but some of them stand out: A retired chief justice of India was accused, possibly for the first time, of favouring relatives; the current CJI recommended the removal of a sitting judge of Calcutta high court for corruption; and in the Ghaziabad provident fund (PF) scam, 37 judges, including a sitting Supreme Court judge, have been accused of siphoning off money from the PF kitty of court employees. To top it all, the controversy over the proposed elevation of Karnataka chief justice P D Dinakaran – against whom there are allegations of land grabbing – to the Supreme Court continues to linger.

The intense public scrutiny of the higher courts is a critical moment in the history of the Indian judiciary. Indeed, an eminent jurist has gone so far as to say that this might be the biggest crisis for the judiciary since the Emergency. Worryingly, it could dent the high levels of trust that Indian citizens have traditionally reposed in the courts. In survey after survey, the judiciary has usually been ranked higher than other government institutions. In a 1996 nationwide survey, 46 per cent of the respondents said they had “high trust” in the judiciary compared to a measly 17 per cent for political parties. A more recent survey in 2004 found that the share of Indians willing to put their faith in the courts was 72 per cent, second only to the Election Commission.

There is, however, an upside to the poor publicity for the courts. It is rare in India for people to talk about judges and courts. For far too long, the judiciary has been somewhat of a closed book to the Indian public. While we’ve always given the judiciary high marks, there is precious little that we know about the men and women in black robes. This is in sharp contrast to the situation in democracies such as the US. During the confirmation of US supreme court judge Sonia Sotomayor earlier this year, everything from her love of Nancy Drew books to her moves on the dance floor was minutely dissected. There is good reason why Supreme Court nominees are discussed in such detail. US Supreme Court judges are political appointees for life, and the stakes are naturally very high.

This is of course not so in India where Supreme Court judges, or even chief justices, rarely stay long enough to stamp their authority or ideological preferences over a court that is much larger and more unwieldy than the nine-judge US supreme court. But if the appointment process has its faults in the US, in India it’s as opaque as it can get. In this context, the fairly vigorous debate in the recent past on the method of selection of judges and for imposing greater accountability on the judiciary is welcome.

Over the years, several Supreme Court judgements have reiterated that a five-judge collegium headed by the CJI is responsible for appointment of apex court judges. There have, however, been suggestions that the selection process be made more transparent. The parliamentary standing committee that looked into the Judges (Inquiry) Bill, which was introduced in 2006 and has since lapsed, suggested that appointment of judges should be entrusted to a body wider than the present collegium with “representation both from the judiciary and the executive”. The same committee suggested that investigation into impropriety by judges should be investigated not by the judiciary alone but by a more “broad-based committee” with representatives from the executive, Parliament and the Bar. The legislation will now be presented in a new avatar, the Judicial Accountability and Standard Bill, in the winter session of Parliament.

Declaration of wealth by judges has been an important part of the debate. There was an attempt earlier this year to introduce the Judges (Declaration of Assets and Liabilities) Bill in Parliament, which was rejected in the Rajya Sabha. The primary reason for the rejection was a clause in the Bill that said declaration of assets would be made privately to the chief justice and wouldn’t be available to the public. The recent voluntary declaration of wealth by SC judges on the court website does not clear these misgivings. Since it’s voluntary, judges are under no compulsion to declare their assets; neither can the details be called into question. It’s worth noting that all US Supreme Court judges are required to declare their assets under the Ethics in Government Act, 1978.

An independent judiciary is essential for a democracy and the Indian Constitution does well to safeguard this independence. But this need not come at the expense of transparency and accountability. Otherwise our confidence in the judiciary could take a knock.







Token gesture

in New Delhi

Inconsistency marks the Supreme Court’s attitude to transparency in public life and judicial accountability.

TWENTY-ONE judges of the Supreme Court, including the Chief Justice of India (CJI), posted the details of their assets on the court’s website. The details of assets of one judge, Justice H.S. Bedi, have not yet been provided. Justice B.N. Agrawal, who retired recently, also provided the details of his assets on the website on special request. (The details are available at http://

The court has claimed that the disclosure is purely voluntary and in accordance with the resolution adopted by the Supreme Court judges in 1997. Both the claims, however, are inconsistent with facts and reasoning.

In 1997, a Full Court meeting of the Supreme Court resolved that every judge should make a declaration of all his/her assets in the form of real estate or investments (held by him/her in his/her own name or in the name of his/her spouse or any person dependent on him/her) within a reasonable time of assuming office, and thereafter whenever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable time. The declaration so made should be to the Chief Justice of the court, and the Chief Justice should make a similar declaration for the purpose of the record, the resolution says. The declaration made by the judges or the Chief Justice, it adds, shall be confidential.

The Supreme Court’s suggestion that the latest disclosure is in accordance with the 1997 resolution raises more questions than it answers. It is thus asked whether this is the first time that judges have declared their assets to the Chief Justice of India and the CJI in turn has made a similar declaration for the purpose of the record. If the answer is in the affirmative, it is pointed out that the judges have failed to declare their assets “within a reasonable time of assuming office”, thereby weakening the court’s claim that the latest disclosure is in accordance with the 1997 resolution.

Further inconsistencies followed. The 1997 resolution meant the asset declarations to be confidential but did not intend to conceal from the public domain the fact whether the judges were indeed declaring their assets all these years. By making the judges’ asset declarations public, the November 2 exercise appears to be an advance on what that resolution had indeed promised. But there is no information on when the judges acquired these assets and when they first declared them to the CJI in accordance with the 1997 resolution. Observers point out that a mere description of current assets and investments, as the judges have done on the court’s website, without indicating the year and the current market value of the acquisition, does not help to achieve the objective of this exercise, which is to check whether a judge has acquired wealth disproportionate to his known sources of income after assuming office as a judge. That is why the 1997 resolution emphasises the need for declaration “within a reasonable time of assuming office, and thereafter when acquisition of any substantial nature is made”.

The Supreme Court’s second claim that the judges have declared their assets “purely on voluntary basis” has led to the question: why are the judges making such a claim? The implication is that they are under no legal compulsion to disclose their assets and therefore the public has no remedy if they find the declarations inadequate. The suggestion seems to be that because the disclosures are purely voluntary they cannot be subjected to strict standards of accountability.

The public disclosure follows a resolution adopted by the Full Court of the Supreme Court on August 26. The Supreme Court’s move is in response to a series of developments that have eroded the image of the higher judiciary. The Chief Justice of India, Justice K.G. Balakrishnan, has maintained that the Right to Information Act (RTIA) does not apply to him, and that he is not bound to answer queries whether there has been compliance with the 1997 resolution requiring the judges to declare their assets to him.

In August, the Central government, apparently after informal consultations with the Supreme Court, sought to introduce in Parliament a Bill disallowing public disclosure of the assets and liabilities of judges, but gave up the move following protests from members cutting across party lines.

The Supreme Court also challenged in the Delhi High Court a directive of the Central Information Commission (CIC) that it disclose to an RTI applicant whether judges have been disclosing their assets to the CJI in compliance with the 1997 resolution. On September 2, Justice Ravindra Bhat in the Delhi High Court rejected the Supreme Court’s challenge and upheld the CIC’s directive. Subsequently, the Supreme Court appealed against the judgment before a Division Bench of the High Court, claiming that it was erroneous and that the 1997 resolution had no legal sanction. The Division Bench posted it for hearing by a three-judge Bench of the High Court.

However, the Division Bench did not stay Justice Bhat’s judgment. In his judgment, Justice Bhat directed the Central Public Information Officer (CPIO) of the Supreme Court to divulge the information within four weeks from September 2 to the RTI applicant, Subhash Chandra Agrawal.

The Supreme Court did not divulge this information to Agrawal. It claimed in its reply to him that it was not bound to do so because it had filed an appeal against the judgment. The CPIO declined to answer Agrawal’s other RTI queries concerning the appointment of judges and the implementation of the 1997 resolution, citing the court’s appeal against Justice Bhat’s judgment. As filing an appeal does not amount to a grant of stay by the High Court, the CPIO’s reply to Agrawal made observers wonder whether the Supreme Court was aware of the correct legal position.

The details of assets held by Supreme Court judges may lead one to believe, wrongly, that it is wealth accumulation that matters in determining the financial probity of a judge. Comparison of a wealthy judge with a not-so-wealthy judge is not likely to leave us any better informed about the integrity of a judge. In other words, a wealthy judge may score high on integrity, whereas a judge placed at the lower end of the wealth scale may turn out to be dishonest.

While describing how the financial declaration system in the United States Supreme Court operates, Aparna Chandra, a visiting faculty member at the National Law School, Bangalore, wrote on her blog: “It does not seem to be focussing only on the tracking of wealth accumulation (though that is of course a necessary component), but also on determining issues of conflict of interest. Hence, a major portion of their declaration deals with gifts, etc., received by judges, and visits, conferences and lectures attended by them, along with honorarium or reimbursement of conveyance received. In the light of the Ghaziabad (P.F.) scam that is still under investigation (many judges were alleged to have received gifts from the main accused in this scam), I believe financial disclosure by judges in India should contain this component as well.”

She added: “Judges in India do go for a lot of conferences and talks, mostly abroad. It would be interesting to find out, and necessary for the public to know, who is organising these trips, and what they are paying for, etc.”

Indeed, Justice Ravindra Bhat, in his September 2 judgment, recommended the U.S. experience as a model for the disclosure scheme to be evolved in India (at para 77). It is possible to suggest that judges of the Supreme Court and High Courts may be reluctant to disclose their finances because of genuine privacy concerns. Thus Justice Bhat recommended for consideration the U.S. Judicial Disclosure Responsibility Act, 2007, which amends the U.S. Ethics in Government Act of 1978 to: (1) restrict disclosure of personal information about family members of judges whose revelation might endanger them; and (2) extend the authority of the Judicial Conference to redact certain personal information of judges from financial disclosure reports.

The Supreme Court appears to have been influenced by populist pressures for transparency rather than the need to evolve suitable norms while deciding to place the details of judges’ assets on the court’s website.

Conflict of interest

Details of investments by judges, also shown on the website, have brought under scrutiny recent instances wherein conflicts of interest have been alleged.

On November 4, Justice R.V. Raveendran recused himself from the Bench hearing the dispute between Mukesh Ambani’s Reliance Industries Limited (RIL) and Anil Ambani’s Reliance Natural Resources Limited (RNRL). The dispute between the Ambani brothers is over the pricing of gas from the Krishna-Godavari basin on India’s east coast. The RNRL claims that it has got the right to buy gas from the RIL under a 2005 contract at rates much lower than the government-approved price. The RIL says the contract is not binding on it because of the changes in the government’s policies.

When the hearings began in October, Justice Raveendran declared that he held shares in both companies in almost equal numbers. Counsel for both parties said they had no objection to Justice Raveendran hearing the matter, and, given the consent, Justice Raveendran felt he was justified in hearing the matter. Counsels’ consent was duly recorded in the court’s proceedings.

In doing so, he was simply following the precedent set by Justice S.H. Kapadia, who had, in 2008, while being part of the Forest Bench, disclosed that he had shares in Sterlite, Vedanta’s sister company, which was before the Bench in connection with the aluminium plant it was setting up in Orissa.

As counsel did not object to his hearing the matter (their consent was apparently expressed orally, and was not part of the court’s record), Justice Kapadia went ahead and passed the judgment on behalf of the Bench, favouring the Sterlite group. The Central Empowered Committee set up by the Supreme Court had recommended against the plant, and the aggrieved tribal people were not represented before the court.

Both Justice Raveendran and Justice Kapadia relied on Point 11 of the Restatement of Values of Judicial Life, adopted in the Chief Justices’ Conference in December 1999. It read: “A judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.”

However, the Supreme Court has held in many cases that if a judge has a pecuniary interest, howsoever small, it automatically disqualifies him or her from hearing the case. Seeking the consent of counsel appearing before a judge in such cases does not mitigate such disqualification, say observers. A code of conduct adopted by judges subsequently cannot replace a binding legal principle laid down by the Supreme Court in many cases.

These truisms have apparently compelled judges to be extra careful. On November 4, Justice Raveendran, who was part of the three-judge Bench hearing the RIL-RNRL dispute, recused himself from the case saying his daughter worked for a law firm that was advising RIL in some other matter and that it came to his knowledge only on November 3. The CJI reconstituted the Bench by including Justice B. Sudarshan Reddy (the CJI and Justice Sathasivam are the other members of the Bench), and restarted the hearing afresh.

Justice Markandey Katju, who was hearing a dispute between RIL and Bharat Petroleum Corporation Limited over the pricing of naphtha, recused himself from the case on November 4, citing shares held in RIL by his wife, even though the hearings had concluded and the judgment had been reserved.

Justice Kapadia too recused himself – this time without asking counsel for the parties before him – from hearing a petition seeking to stay the implementation of the public offer made by Vedanta Resources to buy a 20 per cent additional stake in the iron ore exporting firm, Sesa Goa, because he held shares in Sterlite.

Justice Kapadia’s latest recusal only exposed the inconsistency in judges’ approach to issues of conflicts of interest. After all, the maxim Nemo iudex in causa sua (No one should be a judge in their own cause) applies strictly to any appearance of a possible bias, even if there is actually none.

As the saying goes, justice must not only be done, but must be seen to be done.








Insurance firm to pay more to girl left disabled in mishap

Submitted by Sarthak Gupta on Wed, 11/18/2009 – 09:16.

The general manager of New India Assurance Company got an earful from the Bombay High Court on Tuesday after offering to compensate a 27-year-old woman who suffered permanent disability after an accident in 1993.

After hearing their earlier offer of Rs 5 lakh, Justice S. A. Bobade remarked, “Don’t act like misers…” and directed the company to consider paying more compensation to Shweta Mehta, who was just 11-years-old at the time accident, and now is a paraplegic.

The court was hearing an appeal by the firm, challenging the order of the Motor Accident Tribunal (MACT). In 2007, the MACT directed the firm to pay the girl of Rs 21.23 lakh. The company owes her Rs 50 lakh.

Mehta too filed a petition in the HC, seeking higher compensation of Rs 91 lakh.

Last week, the company’s advocate said in court they were not ready to compensate her. The advocate said: “the accident for her was a blessing in disguise as she could get better education and compensation”.

Irked by the statement, the HC summoned the company’s General Manager I. S. Phukela.

Phukela, who was in court on Tuesday, told the judges that the company was ready to enhance the claim by Rs 5 lakh.

To this, Justice Bobade said: “Life has come to a standstill for this girl. Consider giving her little more than this.”

Mehta’s advocate, Tejpal Ingale, said she deserved more as she is paraplegic with permanent disability.

The girl cannot do anything by herself. She needs help for everything, said Ingale reading from her affidavit. “My expenses per month are about Rs. 78,000, which includes medical expenses and salary to my personal help.” The court will hear the case tomorrow. Urvi Mahajani








Replicas of the Naxalites’

Submitted by Sarthak Gupta on Wed, 11/18/2009 – 08:05.

Clones of Naxalite guerrillas are roaming the outback in the Maoist heartland. Their critics swear at them. The police swear by them.

Three thousand Special Police Officers (SPOs) — former Naxalites and other villagers who have been armed by the police — are the backbone of the planned push against Maoist guerrillas in Chhattisgarh state, the epicentre of an upcoming national offensive against the 42-year-old rebel movement.

“I was just 17, but I was very good. I was leading 33 members in my platoon, some 24 years old,” said the lean and wiry Madka Mudra, now a revolver carrying SPO, once a former Maoist platoon commander from the Mosalmudgu village who was with the rebels for seven years. Now 22, he joined the police in February 2007 because his newly wedded wife asked him to leave the rebels’ side.

With their intimate knowledge of the forest, remote routes, extremely high energy and stamina levels and nimble ways, SPOs — about 40 of them at every police station — are hailed by the police as key to success in all operations. In a region where all operations are done walking, they trudge up to 50 kilometres on operations, guiding the regular policemen.

“They are the kings of the show. The main credit for fighting the Naxalites is to the SPOs,” said Amaresh Mishra, the Dantewada superintendent of police. “Their capability, their dedication, is amazing in an impossible terrain against a treacherous enemy.”

That is so, his Bijapur counterpart Avinash Mohanty says, because “They are the replicas of Naxalites on our side. They have the same aggression.”

That aggression has been blamed in the past for human rights violations.

“There are hundreds of complaints against them, which are not investigated by the police,” said Himanshu Kumar, a local activist in Dantewada town. “Villagers have told us that these SPOs incite paramilitary soldiers.” Those allegations began soon after the creation of the force, alongside a popular campaign against Naxalites called Salwa Judum that started in 2005 from Kutru village.

It began with a rice-laden tractor.

“There was rice going in my tractor — police rations — and the Naxalites attacked and snatched it. Police beat up everyone and arrested 11 boys,” said 45-year-old Vachan Dunga, who owned the tractor and is now an SPO. “Villagers called a meeting. I said, why should we be afraid of this militia?”

The Salwa Judum movement started.

Four years on, the movement is over. About 8,000 people still live in camps set up during the time for about 50,000 people who fled their villages — or were forced to leave, according to the government’s critics. Hundreds of former rebels lined up to become SPOs for a monthly salary of Rs. 2,100 in the region of rampant joblessness — wages they now want raised.

Peaceful anti-Naxalite rallies were held for some time, but it soon disintegrated into a cycle of deadly violence from Salwa Judum activists and SPOs on one side, and Naxalites on the other.

The violence has abated. But the SPOs — who also came from the same villages, cannot ever go home now.

“We aren’t going home. If we do, they will kill us,” Dunga said, his voic drowned by an India-Australia cricket match showing on TV. “If we go home, we won’t be able to survive for more than an hour. They will come with bows, arrows, axes, and kill us.

“Our names are now in Naxal pamphlets and literature,” he said, as other SPOs looked on, including two khaki-clad women with bindis on their forehead and sindoor (vermillion) in their hair. “They have declared that if we are found, we will be cut into 70 pieces and distribute in 70 villages.”

A petition against Salwa Judum in the Supreme Court led to an investigation last year by the National Human Rights Commission (NHRC), whose members travelled to 26 villages in the largest such human rights probe. “There have been some instances where criminal cases have been registered against SPOs. Many SPOs have also been dismissed from service,” the NHRC report said. “In some instances … the security forces and SPOs seem to be prima facie responsible for extra-judicial killings.”

It added: “Allegations against Salwa Judum of (a) large number of killings are not true.” The NHRC also faulted Naxalites for selectively killing Salwa Judum leaders and supporters, and indiscriminate killings of tribals and security personnel.

A year on, as authorities prepare for the joint national operation, police officers in Bastar are counting on their best men — and are gushing over them.

“Your GPS will fail here. These SPOs are far better than any technology,” said a police officer not authorised to be named by the media. “They follow directions on the basis of the rising sun. They are like swift deer.”







Should We Have Talked to the Chhattisgarhi Mother?

Posted by Rajeesh on November 18, 2009

Mainstream, Vol XLVII, No 48, November 14, 2009

Tuesday 17 November 2009, by Somnath Mukherji

The much anticipated Operation Green Hunt has started in fits and starts. It is a high stake hunt. The government is waiting to re-assert its authority in the forested reaches of Central India. The corporations are waiting for unhindered access to the wealth underneath the land. The Maoists are [perhaps] waiting for the atrocities to begin so that the discontent takes deeper roots into the hearts and minds of the adivasis. And the adivasis…what are they waiting for? We do not know. We do not know because we never asked them.

The Chhattisgarh State Government never asked them when framing the industrial policy of the State that discouraged all cottage industries and occupations that could have benefited small endeavours by communities. The adivasis were never asked whether they wanted to do agriculture on their land or vacate it en-masse for steel, bauxite and iron-ore processing plants. In fact, on October 12, at the public hearing for Tata’s mega steel project, villagers were prevented by security forces from attending it. The project was cleared in the presence of a staged audience of 50 people without a hitch. The proposed plant will churn out 5.5 million tonnes of steel annually that will be needed to build, bridges, flyovers, malls, cars, high rises—almost everything that the adivasis from Lohandiguda will never use. A total of 10 villages will be displaced from 2044 hectares of land. A few hours away by bus, Essar is to set up a steel plant of similar capacity.

Very few journalists went out of their way to find out if the feelings of the adivasis were hurt after their villages were torched or their harvest looted; if they felt resentful when the government-backed vigilante, the Salwa Judum, smoked them out and herded them into camps. By December 2007, fifty thousand of them, according to a Human Rights Watch report, were being held inside 24 barbed wired camps in unhygienic conditions. The media went where the state directed it—to the schools blown up by Maoists or to the site of the truck that overran an IED. The adivasi was neatly kept out of the reports filed from the sites of these ghastly attacks. The media never reported that close to 300,000 people have been rendered homeless by the senseless violence, not just from guns but also from the paradigm of development that seems to being ushered in on six-lane highways.

The hallways of Raipur and Delhi were so abuzz with discussions on M-O-Us and M-A-Os that everyone forgot about the 65,000 adivasis who fled into neighbouring Andhra Pradesh. Did they want to go back and live in their homes on their lands? Did they want to live at all? They were no one’s problem. Where were they to go to complain about the rapes and loots? Police? Judiciary? When they did muster up the courage to file complaints aided by civil organisations, the state lashed out at the organisations. Vanvasi Chetna Ashram (VCA), a Gandhian organisation, has been working for two decades in empowering tribal communities around Dantewada. On May 17, the state power was on full display when the ashram of VCA was razed to the ground under the watchful eyes of 500 strong CRPF personnel.

The crimes of the VCA had been unpardonable —they have helped to file more than 500 complaints [none of which have been acted upon till
now] on behalf of the adivasis, for rape, loot, torture and murder against the law enforcement agencies and the Salwa Judum. The VCA also had the temerity to petition the Bilaspur High Court against the against the police encounter in Singaram where 19 “Maoists” were killed. The villagers claimed the dead to be their unarmed relatives. Ever since then the VCA’s staff has been threatened and assaulted to strike fear so that their voice is stifled—a gentle admonition from the powerful state not to act impudently. After all, the state had already set an example by keeping Dr Binayak Sen in jail for over two years on trumped-up charges. It was a reaffirmation of the state’s with-us-or-against-us logic and for the others to draw lessons from it. Look, the state seems to say, we don’t care what you do in your spare time whether it is reducing infant and maternal mortality, or saving the fast vanishing bio-diversity, don’t dare question our logic of either arming civilians or co-opting the role of media in a democracy. The sentiments of the state have often been faithfully echoed by refined intellectuals who profess to capture the complexity of the whole situation in the length of their columns and decry the nonsense the activist-types spout. The nonsensical activists are perhaps the only actors that can stop the brutalisation of the adivasis through peaceful negotiations.


No one went to the Gonds or the Gothikoyas and explained to them that the Constitution of India, the country in which they live, has special provisions to protect their lands under the Fifth Schedule. The Ministry of Tribal Affairs has certainly not been in touch with them. As if it was not enough protection, the Forests Rights Act of 2006 ensured the rights of the Scheduled Tribes and forest dwelling communities over their land and common property natural resources. Or perhaps, the woman from Lingagiri misunderstood the Act and ran away from her home when her village was raided and gave birth to her son in the forest. Perfect plot for an English thriller to be read while waiting for a flight that never seems to be on time. And you must have guessed the name of the boy by now—son of the forest, Adavi Ramadu. Fact and fiction are so tightly interlaced in Lingagiri that it seems unreal.

When the National Human Rights Commission (NHRC) did finally go to Dantewada after “activist” people like Prof Nandini Sundar filed a PIL in the Supreme Court against Salwa Judum for the atrocities perpetrated by them, they were accompanied by a large contingent of armed security personnel. The members of the NHRC team themselves were all IPS officers—a blow to its impartiality. The adivasi women were questioned in the camps in presence of gun-totting security personnel and the Salwa Judum activists—the alleged tormentors. None of the women admitted of rape in such a conducive atmosphere. To the utter surprise and consternation of the the team, the entire village of Chikurubatti ran away at the sight of the approaching team accompanied by armed CRPF jawans. In spite of their best intentions, the team did not get to hear what the adivasis had to say. They did not think that the entire village fleeing said something.

No one asked the adivasis anything. That is the way it is supposed to be. These people belong to the sacrificial stock. With the meditative resolve of a tantric we have sacrificed them at the altar of development. Although tribals constitute eight per cent of India’s population, they are 40 per cent of the 60 milion people displaced by large projects from 1947 to 2004. The people of southern Chhattisgarh might just boost the percentage.

We will mobilise our ground and air forces, enact laws which divide the society along the for-us-against-us lines, send our Ministers and bureaucrats to the US to confer on techniques of anti-terrorism, counter-insurgency and “governance”, hold talk shows after talk shows in ties and imitative body language, sanction crores of rupees for development packages, but one thing we will not do is to take off our blinders and squat next to the mother who delivered in the forest and ask her, “Hey mother of Adavi Ramadu, why did you have to flee your home? What will make your life a little easier?”

The author is a volunteer with the Association for India’s Development and has been working with the VCA in Chhattisgarh and ASDS in Andhra for rehabilitating refugees driven from their homes by the violence in Chhattisgarh.








Can tribunal dismiss appeal for non persecution

Nov 18, 2009

Rule 20 of the CESTAT Procedure Rules reads as,-

RULE 20.  Action on appeal for appellant’s default.—Where on the day fixed for the hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant doesn’t appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide on merits.
It is clear from this rule that the Tribunal is empowered to dismiss an appeal in default. However, this is a mere rule, made under delegated rule making power with respect to procedural matters. It has to be seen as to whether this rule is in conformity with the Central Excise Act, 1944 which confers such power to the Tribunal.

35C of the Central Excise Act, 1944 reads as,

SECTION 35C. Orders of Appellate Tribunal.?— (1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.

It is obvious from this Section that it is a duty of the Appellate Tribunal is to give the parties an opportunity of being heard, however there is no condition that the party must avail the opportunity of being heard for appeal to be decided on merits. Further the Tribunal can only confirm, modify or annul the order or remand it back. The section doesn’t empower the Tribunal to dismiss the appeal in default, in the sense that it is not empowered to “not to hear the appeal”. Similar provision is there under Section 129B of the Customs Act, 1962.

The CESTAT Procedure Rules has been made under the powers delegated by Section 129C(6) of the Customs Act [made applicable to Central Excise vide Section 35D of the Central Excise Act], which reads as,

SECTION 129C. Procedure of Appellate Tribunal.–?

(6) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings.

Thus the power delegated under this Section under which the Rules have been framed is subject to the provision of this Act. Thus the CESTAT cannot make a rule which amend or supplant any provision of the Act. From a plain reading of these Sections, it appears that Rule 20 the CESTAT Procedure Rules is substantially ultra vires to the rule making power and hence is illegal.


Ulta vires means beyond powers. Whenever a person or a body of persons, exercising statutory authority, acts beyond the powers conferred upon him or them by statute, such act become ultra vires and accordingly void in the eyes of law. This doctrine has been extended to all administrative authorities empowered by the legislature to make subordinate legislation.

Section 5A(8) of the Income Tax Act, 1922, empowered the Appellate Tribunal to make Rules to regulate its own procedure. In exercise of this power, the Appellate Tribunal made Rule 24 which empowered itself to dismiss an appeal for default in case of non-appearance of the appellant when the appeal is called on for hearing. The Supreme Court held in I.T. Commissioner v. Chenniappa [AIR 1969 SC 1098], that the rule is in repugnance with Section 33(4) of the Act, and the obligation imposed by the said section cannot be short-circuited by the Tribunal by dismissing the appeal in default of appearance.

In Viral Laminates v. UOI [1998 (100) ELT 335 (Guj.)], the Hon’ble Gujrat High Court held that, in para 11,

“That part of Rule 20 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 which enables the Appellate Tribunal to dismiss an appeal for default of appearance as well as proviso to Rule 20 is held to be ultra vires the provisions of Section 35C(1) of the Central Excises & Salt Act, 1944 as well as Section 129B(1) of the Customs Act, 1962. It is declared that the Appellate Tribunal has no power to dismiss an appeal for non-appearance of the appellant and the appeal should be decided on merits.”

Hon’ble Delhi High Court held in Prakash Fabricators v. UOI [2001 (130) ELT 433 (Del.)], in para 5,

“On a bare reading of the provisions and having regard to the scheme of the Act as well as of the Customs Act, there can be no manner of doubt that the appeal filed before the Tribunal has to be disposed of on merits and cannot be dismissed for default of appearance of the appellant. Where there is no appearance on behalf of the appellant, the Tribunal has to decide the appeal ex-parte. The use of the expression “thereon” means that the Tribunal has to pass order on the subject matter of the appeal, and on the issues in controversy. As has been observed by the Gujarat High Court in Viral Laminates case (supra), the expression “thereon” does not mean that the Tribunal can pass an order of dismissal for default of appearance, since such an order has no nexus with the matter in controversy.”

Hon’ble Rajsthan High Court in Balar Fabrics v. UOI [2002 (142) ELT 309 (Raj.) held, in para 7,

“Considering the entire scheme of the relevant provisions and particularly the expression “thereon” appearing in Section 33(4) of the Income Tax Act as well as provisions of Section 66 relating to reference to the High Court, the Apex Court held that Tribunal has no power to dismiss an appeal for non-appearance of the appellant and the appeal must be decided on merit. It is, thus, evident that the manner and method in which the appeal filed before the Appellate Tribunal under the provisions of the Income Tax Act, 1922 is required to be disposed of are the same as envisaged under Section 35C(1) of the Excise Act as well as Section 129B(1) of the Customs Act. Therefore, the decision rendered by the Supreme Court in Mudaliar’s case applies to the instant controversy with full force. Thus, there is no manner of doubt that the appeal filed before the Tribunal has to be disposed of on merit and cannot be dismissed for want of appearance of the appellant. A Division Bench of the Delhi High Court in Prakash Fabrics v. Union of India reported in [2001 (130) ELT 433 (Del.) = 2001(44) RLT Page 459] dealing with the identical situation observed:

“Where there is no appearance on behalf of the appellant, the Tribunal has to decide the appeal ex parte. The Court further observed that the use of expression “thereon” means that the Tribunal has to pass order on the subject matter of appeal and on the issue of controversy.”

In view of these binding judgments it is clear that the CESTAT has no power to dismiss an appeal in default. When the appellant doesn’t appear at the time of hearing, the tribunal may decide the appeal ex-parte on merits, but it cannot be dismiss the appeal in default.

This conclusion can be drawn from the basic principles of natural justice. The Act gives statutory right of appeal to the assessee. Further the Act imposes a duty on the Tribunal (Section 129B(1) of the Customs Act, 1962) to extend opportunity of being heard to the assessee. Now, if the assessee couldn’t avail the opportunity of being heard or didn’t avail the opportunity of being heard, it cannot be a ground to deny the statutory right of appeal to the assessee.

Despite these various pronouncements of binding judgments by various High Courts, still we find occasions when the Tribunal dismisses an appeal in default. Such contradictory orders by the Tribunal introduces uncertainty in law and at the same time results in multiplicity of proceedings. Further it doesn’t enhance the prestige of Rule of Law. It is high time the CESTAT should amend Rule 20 and settle the issue forever.

(Views expressed are personal views of the author.)

Written by:- Advocate Rajesh Kumar.








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Talking point: What constitutes sexual harrasment in skies?


Published on Wed, Nov 18, 2009 at 02:07, Updated on Wed, Nov 18, 2009 at 02:27 in India section

The National Commission for Women (NCW) has ruled out a case of sexual harassment as was alleged by Air India air hostess Komal Singh on board Air India plane on October 3.

The NCW report, which was submitted to Civil Aviation Minster Praful Patel and Women and Child Development Minister Krishna Tirath on Monday, admits that there was indeed an altercation between the pilot and co-pilot with the flight purser and an air hostess. But the committee established that there was no sexual harassment in the incident.

The airhostess Komal Singh had levelled sexual harassment charges against the co-pilot a few days after the October 3 incident.

The question that was being asked on CNN-IBN’s Talking Point was: What constitutes sexual harassment in the skies? To try and answer the question on the panel of experts was Komal Singh’s Lawyer Sanjay Ghose; Executive Director, Air India Jitendra Bhargava; Komal Singh’s sister Poonam Singh.

CNN-IBN: The National Commission for Women has clearly said that there was no case of sexual harassment, that’s what the Air Indian Inquiry Committee also said. Where does your case stand on the critical issue of sexual harassment in the plane?

Sanjay Ghose: The extracts of the reports that I have seen don’t clearly say that there was no sexual harassment. The Air India finding is that the entire issue is pre-rehearsed and stage managed and that is not the finding of the NCW. So there are a lot of discrepancies. The NCW has also come to a finding that there was assault, she was injured, she was pushed out of the cockpit. They have also come to the findings that the chargesheet issued to Komal was incorrect. I want to know how Air India will respond to the NCW findings.

CNN-IBN: It’s not a clear victory for Air India’s case so far? In fact, there is a case of assault according NCW findings? How do you respond to this?

Jitendra Bhargava: It’s not a question of victory. We are not going ga-ga over the verdict of NCW. The reality is that there was an incident that took place, we acted as per the Supreme Court guidelines, a committee comprising of five women officers looked at the whole case along with an NGO, found that the charge of sexual harassment wasn’t in place. Yes, there was a case of the captain pushing the air hostess out. Does it come in the category of sexual harassment? The fact is that the air hostess and the flight pursuer was in the cockpit, when the captain’s request of asking them to leave the cockpit did not work, they reached a situation where they had to physically push them away.

CNN-IBN: Are you saying that it is not a case of sexual harassment, it’s a case of violation of conduct rules in the air. That’s where your argument stands, it that right?

Jitendra Bhargava: Absolutely.

CNN-IBN: Is Air India confusing issues? Do you believe that the central case is still sexual harassment Sanjay?

Sanjay Ghose: Sexual harassment has been defined by the Supreme Court in the broadest possible terms. Sexual harassment is as is perceived by the victim of sexual harassment. Even by the NCW reports, Komal was subject to witnessing gross abuse by the two pilots. Isn’t Komal’s statement that she was physically touched on her chest and pushed out with great force from the cockpit – not sexual harassment, then what is sexual harassment?

CNN-IBN: Air India is accepting that there was abuse and assault but no molestation, what is the definition?

Jitendra Bhargava: We have followed the script as defined by the Supreme Court with external representation, given full opportunity, then come to a conclusion.

CNN-IBN: It takes a lot of courage to make a complaint like that in public, Do you concede that?

Jitendra Bhargava: Why is it that the Supreme Court has said that the committee on sexual harassment must comprise of only women? There is merit in the suggestion. The reason is to embolden the women to come to the committee and make a complaint.

CNN-IBN: After the NCW ruling, what happens to the pilots, do you reinstate them? And what happens to Komal’s case?

Jitendra Bhargava: The reality is that there are two dimensions to the whole issue. One was the case of sexual harassment and the other is of misconduct. While the sexual harassment issue has been settled both the internal committee and NCW, but the indiscipline on board the flight is very much a case. And that is why chargesheet has been issue to all the four involved.

CNN-IBN: Do you believe that the battle is not over as yet?

Sanjay Ghose: Of course, the battle is not over yet. This is just the beginning. The whole nation and the male and female employees of Air India are watching as to how sensitively Air India is going to deal with this issue. Komal has inspired many people who have actually faced sexual harassment and have not had the courage to talk about it. Unfortunately, Air India has not cooperated with Komal.








Father told to pay damages for accident caused by son

Utkarsh Anand

Posted: Tuesday , Nov 17, 2009 at 0203 hrs New Delhi:

Be extra careful with your car keys. For, if a minor decides to go for a drive and meets with an accident, you will not be able to claim relief from your insurance company.

A recent decision by a city Motor Accident Claims Tribunal (MACT) says the owner of a vehicle was liable to shell out compensation to victims of road mishaps despite having an insurance policy if a minor from his family causes an accident.

Moreover, the defence that the owner did not know that someone took the keys without his/her knowledge will not stand in court.

According to MACT judge Sujata Kohli, if the keys fall into a minor’s hands, it would be construed as negligence on part of the owner and hence a breach of the terms of the insurance policy.

The court’s decision came while deciding a claim petition filed by one Seema who sustained injuries in an accident. A motorcycle driven by Parveen Kumar in a Northeast Delhi locality on August 23, 2005, had caused the accident.

As per the petition, the bike was being maneuvered in a rash manner and it hit the petitioner as she was crossing the road.

It was later revealed that Kumar was only 15 and that his father Kanwar Pal Singh owned the bike.

The petition also arrayed United India Insurance Co. Ltd as the party as the vehicle was insured with it.

When the question of deciding who should be made liable to pay the compensation came, the insurance company said the owner had to be made liable because at the time of the accident, the rider did not possess a valid driving license.

Parveen’s father Kanwar Pal Singh, however, tried to escape liability by saying that his son had taken away the bike without his knowledge after picking up the keys from his drawer.

ASJ Kohli inquired if the drawer was locked, to which Singh answered in the negative. “It is evident that the owner has not taken the minimum possible care of the vehicle expected in order to avoid the situation where a person unqualified to drive could have taken away the vehicle. This lack of care — would render him liable of breach of conditions of the policy,” held the judge.

The court, however, also noted that it had to ensure that a victim does not have to wait long for compensation.

It, therefore, asked the insurance company to pay Rs 21,500 along with 7.5 per cent interest to Seema immediately and then recover it from Singh.

Singh was also ordered to comply with the directive and pay the company the compensation amount.









Custodial Violence (An enquiry into its causes)

Nov 16, 2009

Custodial violence is a dark reality in our democratic country governed by “Rule of Law”. There are many instances when it has been examined that how torture is inflicted or who are the guilty persons or who get what compensation in cases of custodial violence. However, very few attempts have been made as to analyse the reasons of custodial violence. This paper is a humble attempt to analyse the reasons of custodial violence, and in this process will attempt to question some myths propounded by the unexamined realty.

It is said that, torture is essentially an instrument to impose the “will of the strong over the weak”. However, the above statement merely states the obvious. It is obvious that only a strong can torture the weak and not vice-versa. The core issue is what is the “will” which the strong (read the police) want to impose over the weak (read the people). If we understand this “will” which is being imposed, then we understand the causes of custodial violence.

One of our former Union Law Minister said once that you cannot interrogate the criminal over a cup of tea! This is another mythical logic. It is propounded to explain that custodial violence is required to know the truth and collect evidence to prosecute a criminal. Its contention is that some amount of violence is required to get the information out of the criminal. If this logic is true, why not apply it to the highest echelon to our polity. Let us interrogate the top politicians and I am sure many gory tell of criminality will come out in open. We can interrogate the top bureaucrats and many innovative ways of corruption and partisanship will come out. And if this is done corruption and criminality will be eliminated from the top and there will be no crime! In any case our Public representatives and Public servants are interested only in public service and they will be willing to offer themselves for interrogation and custodial violence in the interest of the society……… Why don’t we to that?

The logic is, in itself, very dangerous and whenever it will be applied, it will certainly be misused and abused. Any form of violence, arbitrariness and injustice shall always be abused against the poor and helpless persons. Thus it becomes very important, particularly for the masses and common persons (aam aadmi) to reject any such justification on the very face of it. And why only the truth, violence can get anything out of ordinary mortals, even the most blatant falsehood. Let us see this case, which have been reported in the name of K.V. Rajendran v/s Inspector of Police (2001 CriLJ 4092 Mad). In this particular case, a lecturer was picked up by the Revenue Divisional Officer during night time. The RDO suspected that the lecturer had complained against him to the higher authority about smuggling of teakwood. He was mercilessly beaten by the officer in presence of Tahsildar, revenue official and police. He was forced to sign a false confession. Top officials were in collusion with the perpetrator of crime or were inactive. Several of them made false statements. Just look at this interrogation and confessional statement. It may be noted that our legislatures are liberal in conferring power of interrogation and recording of statements on various officials. These statements are admissible in the court of evidence on the judicial reasoning that revenue officials are not police officers. It is one substantial piece of evidence, merely on the basis of which conviction can be made? Distraction! Let us return to custodial violence. Through custodial violence what is extracted is not the truth but something, which the interrogator wants to hear. The wish of the interrogator is the “will” which the strong wants to impose on the weak.

We have to understand that custodial violence have nothing to do with justice, truth or order in the society. It is most rampant in societies most opposed to the tenets of law and justice, most opposed to all basic principles of civilized society. And that is the reason Hon’ble Supreme Court in D.K. Basu’s case described custodial violence as the worst form of crime in a civilized society. Then also it continues: without punishment.

Another point we should keep in mind that it is only the poor and less fortunate persons against which custodial violence is used. Barring some exceptions, it is never used against rich and powerful persons or noted criminals. Stories appear every day how big criminals are living in luxury in judicial custody in various parts ou our country. Politicians prefer to stay in plush guest- houses when in judicial custody, all that the government have to do is to declare that guest house a prison for a temporary period. Everybody knows that king-pins of stamp paper scam were staying is plus flat in upmarket mumbai, while staying in the custody of the police. Then the question comes, why is it used only against poor and petty criminals? One obvious reason is that they are not in a position to protect themselves (protection from whom!), which is true also but reasons are much deeper.

With due respect to certain honest and hardworking police officers (I am sure they do exist), it is not an exaggeration to say that our police force is corrupt to the core. And we all know that when we deal with a constable on the road or senior officers in the Police Station. Asian age reported on 10-7-2000 that police force is the most corrupt organisation in the government. Certain police officers are known to support and promote crime. A senior police officer said once that more police station will lead to more crime. The Hindu (02.01.1998) reported that in U.P. 100 policemen were dismissed, 183 suspended and action was initiated against 576 policemen for alleged nexus with criminals. I feel it is only a tip of the iceberg. And it is difficult to count how many police officers are facing charges of heinous crimes like murder, rape and decoity. “ A woman police officer was threatening and offering money to a rape victim to end the case, inquiry ordered (TOI, 01.09.2004)”. Remember the logic of the state for poor conviction ratio – “witnesses turn hostile”. And if not every police officers, certainly every police station is guilty of crime of custodial violence, corruption, extortion in the name of hafta etc. Then comes the fundamental question- “to what extent the police is interested in curbing the crime?”

At a shallow level, the corruption in police is based on fear of police. If people will not fear police, nobody will give hafta or illegal gratification to the police. Without fear it is difficult to extort money from the accused. The custodial violence is the tactics through which the police maintain its fear among the persons, so as to get money through corruption. “ High Court ordered action against an SHO for illegal confinement and harassment of certain dealers who refused to pay hafta to police ( HT, 07.04.2000)”. See another instance, “ when a shopkeeper refused to pay hafta to the police, he was abused, handcuffed and assaulted (TOI, 11.04.2000)”. History tell us that the ruling class have always extracted money from the poor class either through beggar, nazrana etc. since the ages. Incidentally even in democratic India corruption have been justified as ubiquitous, speed money, grease of the governance machinery etc. Corruption is the modern form through which the ruling class or their agents extract money/resources from the poor working class.

The police is required by law to investigate the cases impartially and as per law. The police get corruption money to deviate from this impartiality in investigation of cases and the accused, if he is not rich and powerful, is always on the wrong side of the deviation from impartially. “The chairman of NHRC said that 60% of the arrest made by police is unnecessary and unjustifiable. Even in heinous offences, rate of acquittal is more than 80% (TOI 14.03.99)”. Here the custodial violence is required to extract false confessions, planted recoveries, stock witnesses, planting of fake evidences etc. to make the case against the accused. Generally the accused is not treated as per law by the police. To stop them from making complaint to higher authority or to the courts, it is required to break the will of the accused. There also, custodial violence is a handy tool in the hand of police. Through custodial violence, fear can be breaded in the mind of the accused and his family members so that no complaint is filed against the erring police officers. Not surprisingly, in a miniscule small number of cases any complaint is filed against erring policemen in our country when the stories of custodial violence is an open secret.

All the struggle injustice is carried on by the human spirit and human will power. Since the police is inherently against the accused, particularly when he is poor, it is necessary to insult and humiliate him in order to break his spirit and will power. Such humiliation technique is also useful against persons who are political opponent or who dare to challenge the injustice in the system. Various humiliation techniques like forcing the person to sit on ground, stripping, forcing to do menial job, parading in public etc. are applied apart from custodial violence in order to break the human spirit of the victim.

Governance in democracy is based on popular will. Nevertheless, violence is known to have been used to sustain governance when the government of the day is not sustaining on popular will. The excesses during the time of emergency is a point to be noted. Higher amount of violence in terrorist infected areas are also based on this doctrine. The fear of police has to be maintained for this purpose. This explains the apathy of the government in tackling the problem of custodial violence with iron hand.

Courts, particularly the higher judiciary and National Human Rights Commission have taken certain concrete steps to end this inhuman practice. However their steps are inadequate to say the least. The approach is subordinate judiciary is not very encouraging. In a case the High Court of Delhi directed that whenever an accused brought before the magistrate it is his duty to ask from the accused whether he has been ill-treated in the custody. We don’t see that happening in the subordinate judiciary. One of a magistrate never allowed an accused to sit in his court, and this discrimination against the accused may be hailed by some as strictness! In another place accused were not allowed to enter the courtroom with their shoes on, and the magistrates watched this discrimination with judicial equanimity…………Political freedom has come to us but we still continue with the colonial practices of humiliating the natives before the pillars of colonialism. In any case we continue to have the same Police Act, same procedures and same mindset. Regarding rights in subordinate judiciary, I would like to quote a member of district judiciary, “ being part of district judiciary since a decade, I know it is a fact that hardly 10% of the trial judiciary is familiar with the provisions of the Constitution. I know judges who have not seen the text of the Constitution”(Combat Law, December-January 2004).  Do I need to say more?

Even the higher judiciary and NHRC have not come on the instances of custodial violence in the proper perspective. The emphasis is more on granting compensation or interim relief rather than treating the incident as attack on rule of law. In case of torture of one person (Case No. 3069/30/1999-2000 of NHRC) the commission ordered compensation of 10,000 and departmental enquiry. However registration of FIR for causing hurt in custody (Sec 331 IPC, 10 years RI), causing malicious prosecution (offences against public justice), manipulation of official record etc was not recommended even when the investigation pointed towards to these facts. Whenever investigation points towards commission of these offences FIR must be recorded, the heinous crime of custodial violence can neither be checked nor adequately punished through departmental enquiry and transfer.  Similarly in case no. 21883/24/98-99 of NHRC no such direction was issued by the NHRC. In these cases I feel the compensation ordered out of public money paid by the ordinary tax-payers is neither desirable nor morally defensible. The state has only a vicarious liability in these cases, primary liability is that of the perpetrator of crime and he must pay through civil and criminal liability.

I apologise for offering suggestions but my readers must forgive me for my incorrigibility in this regard. In case of grave violation the NHRC should come out directly in favour of the victim. It can file FIR on behalf of the victim. It can file criminal complaint on behalf of the victims. It can take help from legal aid committees to support it in theses cases. It can enroll volunteers (advocates, retired judges, public spirited citizens etc.) in various part of the country to help the commission in its noble task entrusted on it by the representatives of people. Public wrong must be resisted by the will and strength of the people. Probably we have started expecting a great deal from the NHRC. Higher public expectation should always be seen as a greatest compliment to an organisation serving the public. Bravo.

Can state end this form of inhuman practice? Do the state have a political will to curb it? The answer is simple. The state doesn’t do anything right or wrong, it does only what is inevitable. What is required is individual empowerment. It can be done only through NGO or association of persons condemning this form of violence, which attacks the very root of rule of law on which our civilized society is based. The only thing which is required is “freedom from fear” so that every violation of law is reported fearlessly, complained fearlessly, pleaded fearlessly and condemned fearlessly.

Written by:- Advocate Rajesh Kumar.








Unwilling to act


Governments across the country have shown a remarkable reluctance to use the S.C./S.T. Act to protect Dalits from upper-caste violence.

By Lyla Bavadam in Mumbai

ATROCITIES against the Scheduled Castes and the Scheduled Tribes registered a steady rise in Maharashtra from 890 cases in 1999 to 1,385 cases in 2007, the latest year for which government statistics are available. In 1995, the Shiv Sena-Bharatiya Janata Party alliance promised to repeal the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, if voted to power. The reasoning was that it was a hindrance to communal harmony. One of the first moves of the Sena-BJP government (1995-2000) was to withdraw more than 1,000 cases registered under the Act, saying many of them were false. This in itself was illegal since it requires the court’s consent to withdraw cases. Most of the cases related to the aftermath of the violence that followed the renaming of Marathwada University as Dr Ambedkar University. Upper-caste Hindus protested violently at the time. Even now, caste tensions in the Marathwada region are the highest in the State.

Apart from the Sena-BJP’s attempt to get rid of the Act, there are doubts about the commitment of the government, of whichever party, towards it. Quoting figures from the 2007 annual report of the National Crime Records Bureau (NCRB), the Asian Centre for Human Rights’ publication “Torture in India 2009” states that the NCRB “reported a total of 30,031 cases – including 206 cases under the Protection of Civil Rights Act and 9,819 cases under the S.C./S.T. Act – against the S.Cs in 2007. Although the average charge-sheeting rate for the crimes against the S.Cs was 90.6 per cent, the average conviction rate was only 30.9 per cent. A total of 51,705 persons (78.9 per cent) out of 65,554 persons arrested for crimes committed against Scheduled Castes were charge-sheeted, but only 29.4 per cent were convicted, consisting of 13,871 persons out of 47,136 persons against whom trials were completed.”

Special courts to try atrocity cases do not exist in Maharashtra. Instead, the government makes placatory gestures that do not go beyond reiterating the provisions of the S.C./S.T. Act. The most recent example was when the previous government said it would fine and curtail development funds to an entire village where a caste atrocity was committed . This provision exists in the Act. N.K. Sonare, national president of the Ambedkar Centre for Justice and Peace, India, said: “Everything is on paper. Nothing is applied. Instead there is always pressure on the people not to file complaints. The police are instructed not to file FIRs or to leave loopholes in investigation.” Sonare added that there were numerous conventions and recommendatory reports that supported victims of caste abuse, but the government was lax about following them.

If it had, then incidents such as the one that took place at Rajnai village in Beed district on August 23 could have been prevented. A 15-year-old S.C. girl was kidnapped and gangraped by three men, one of whom is believed to be a Hindu priest. She was left at a bus stand by her assailants. Her family filed an FIR but the police initially refused to register a case under the S.C./S.T. Act, though they did it later, under pressure from a non-governmental organisation (NGO). The main accused has not yet been arrested and the family is under pressure to withdraw the case. “They are landless people and depend on the upper castes for their income. This is being used to put pressure on them,” said a representative of the NGO.

If they did own some land and decide to grow something on it, they could meet the fate of Madhukar Ghatge of Kulakjai village in Satara district. When he retired from his job in the Railways in Mumbai in 2007, he only had one aim – cultivate his land in the village. One of the first things he did was to dig a well after acquiring the permission from the panchayat. It was, tragically, his last action. Ghatge’s upper-caste neighbours were enraged at his “audacity”. On April 26, 2007, he was attacked with rods and axes and he died on the way to hospital. Fourteen people were identified as the assailants and 12 were arrested and charged under sections of the Indian Penal Code (IPC) and the S.C./S.T. Act. A charge sheet was filed and they were released on bail. They are now believed to be absconding.

If Dalits raised their voice, they were silenced brutally, as a young mother (name withheld) was at Telgaon village in Solapur district in March 2006. She knew she was taking a bold step when she complained against the liquor barons in her village but had no idea that they would use her caste against her. The mother of a child was stripped, beaten, paraded and then kept on “display” for a few hours. Her child was with her through this humiliation. After media intervention an FIR was filed under the S.C./S.T. Act, but the young woman’s social, emotional and economic support systems had been destroyed. Social pressures forced her husband to abandon her. She has no land and others are unwilling to employ her. Under the Act she is eligible for rehabilitation, but the district administration refused this. Instead, she was told that she could live in a government institution for abandoned women. Her child lives in another such institution. Her case is in the sessions court at Solapur at present.

Caste hatred at its worst perhaps was witnessed at Khairlanji village in Bhandara district in September 2006 when four members of a Dalit family, the Bhotmanges, were lynched by their neighbours belonging to the Other Backward Classes (OBCs), apparently following a dispute over the ownership and use of land. The two women victims were paraded naked and were said to have been gangraped by the residents of the village. All of them were ultimately hacked to death. In September 2008, six people were given the death sentence for the crime but they went in appeal and the case is in the Bombay High Court.

The greatest criticism against the handling of the Khairlanji case was that it was handled from a purely criminal angle and without invoking the S.C./S.T. Act. The charges related to murder, outraging the modesty of women, criminal conspiracy and unlawful assembly with deadly weapons (rape charges were not brought since the post-mortem did not give proof of that). The caste hatred and atrocity angle was completely bypassed even though the Bhotmanges lost their lives because they were Dalits.

That a person’s Dalit identity still overrides everything else in the villages was something Mumbai-returned Dilip Shendge, 25, forgot when he presumed that the use of the public handpump in his village, Bhutegaon in Jalna district, would be on a first-come, first-served basis, in May 2003. For this “lapse” he was murdered and his sister was accosted by a group of upper-caste Patils who taunted her about her caste. Later, she was beaten unconscious when she intervened in a fight between another brother of hers and some boys. Later that evening, the brother, sister and their mother were set on fire outside their house by a mob of Patils. Neighbours doused the flames, but it took them three hours to get the victims to hospital on a bullock cart. Dilip died a few days later of severe burns. A fact-finding team from the Committee for Protection of Democratic Rights was told at the police station that the register for the Bhutegaon case could not be found.

In July 1997, half way into the Sena-BJP government’s term, one morning the mainly Dalit residents of Ramabai Nagar in north Mumbai woke up to see a garland of slippers around a bust of Dr B.R. Ambedkar. They reacted violently, stoning vehicles on the nearby highway. The State Reserve Police Force (SRPF) was called in, and within minutes of their arrival they opened fire, killing 10 Dalits. On May 2009, a fast track court in Mumbai sentenced the SRPF platoon commander, Manohar Kadam, to life imprisonment. Though he was ultimately convicted of culpable homicide (and not under the S.C./S.T. Act), the real reason for the trouble remains a mystery.

The incident brought the Dalit population together in a way that Dalit leaders failed to. Already enraged by the 1995 decision to withdraw cases filed under the S.C./S.T. Act, Dalits were further infuriated by the defence of the firing by Chief Minister Manohar Joshi of the Shiv Sena and Deputy Chief Minister Gopinath Munde of the BJP. In the 1999 Assembly elections the alliance was voted out and it is widely accepted that Dalits, who form 12 per cent of the State’s population, played a significant role in this.

By T.K. Rajalakshmi in Jaipur

IT is still known as “Kumher kaand” (Kumher carnage). The massacre of Jatavs in Kumher town in Rajasthan’s Bharatpur district 17 years ago is something that is not forgotten easily. The incident occurred on June 6, 1992, when 254 homes and hutments were set ablaze. Officially, 17 Jatavs were burnt alive, but independent sources put the number of dead at 30. There were cases of arson, molestation and destruction of property of Jatavs by Jats of the area. Some 600 families reportedly fled Kumher. The BJP was the ruling party in Rajasthan in 1992 and Bhairon Singh Shekhawat the Chief Minister.

P.L. Mimroth, founder of the Centre for Dalit Rights (CDR), recalls not only the incident but the struggle to make public the report of the K.S. Lodha Commission (also called the Kumher Inquiry Commission). The commission readied its report in 1996. The report, says Mimroth, was never tabled; only an Action Taken Report was submitted by the BJP government in 2006, after a lot of pressure was put through the courts, though the government claimed that it had tabled the actual report. “I asked many legislators. They denied seeing a copy of the Lodha Commission report,” he said.

Mimroth added that he could not obtain a copy of the report until 2006; he got it only after filing a writ petition and a petition under the Right to Information (RTI) Act. In 1992, Mimroth was the general secretary of the Society of Depressed People for Social Justice and had deposed before the Lodha Commission. “I have three gunny bags of affidavits relating to the Kumher case,” says Mimroth, who was entrusted with the task of conducting an inquiry by the National Centre for Human Rights (NCHR), an organisation based in Delhi.

Since 1992, there have been many incidents involving violence and atrocities against Dalits but none evoked the kind of revulsion “Kumher kaand” did. It started with a clash in a cinema hall when some Jatav youth were manhandled. Then the cinema hall was pelted with stones and rumours were spread that the modesty of upper-caste women had been outraged. The frenzy that was built up soon metamorphosed into an organised pogrom against Jatavs. Water supply to the Jatav locality was disconnected and the hutments were set afire.

In Bharatpur that day, Jats of 46 villages held a caste panchayat where aggressive speeches were made. Barring the victims and people representing them, no one else, including those representing the administration, found anything harmful in the aggressive posturing.

It is not surprising that the writ of caste and community panchayats continues to run in the face of administrative apathy and nonchalance in parts of western Uttar Pradesh, Haryana and Punjab. As a result the democratic rights of the poor, women and the socially marginalised are violated regularly. With widening economic inequalities and a section desirous of seeking the rights guaranteed under the Constitution, such clashes and tensions are likely to increase.

Most conflicts are related to land. The record of implementing land reforms is very poor in Rajasthan. There are at least 10 atrocity-prone districts but the State government has not declared a single one as such and the administrative infrastructure to deal with them under the provisions of the S.C./S.T. Act are missing. Of the 33 districts, only 17 have special courts to deal with atrocities against Dalits. “The Act provides for all these. It is a stringent and exhaustive piece of legislation provided it is implemented,” said Mimroth.

Curiously, in 1992, the advent of the Act seemed to have a direct bearing on the events that led to the Kumher incident. Among the many submissions made to the Lodha Commission, there was one, made by the Zila Nyaya Sangharsh Samiti, claiming that following the advent of the Act, Jatavs had trumped up several false cases against upper-caste people and that Congress politicians, with a view to suppress Jats had always appointed Jatavs in key posts in Bharatpur district. It was ironic that even this did little to prevent the carnage. The Sangharsh Samiti concluded that Jatavs were not Dalits, that they were economically sound.

Another organisation to submit a statement of facts was the Bharatiya Janata Yuva Morcha, the youth wing of the BJP, which held, among other things, that in Bharatpur district, the relationship between Jatavs and Jats was very cordial and that only political parties such as the Bahujan Samaj Party (BSP) provided an impetus to the caste conflict. The Lodha Commission rubbished this assertion but averred that there had been indiscriminate use of the S.C./S.T. Act, which fractured “reciprocal relations between Jats and Jatavs at Kumher and its vicinity.”

While the Lodha Commission made broadly progressive recommendations and observations, it noted that the S.C./S.T. Act had become “the prime circumstance for deteriorated (sic) mutual harmony between Jatavs and other upper castes”. It is baffling that a piece of legislation, by its use, should lead to disharmony unless it upset the status quo to a large extent. More surprising is the fact that no government wanted the Lodha Commission report made public.

Eastern Rajasthan borders certain districts of Uttar Pradesh, which in that period had seen the rise of the BSP. Whether this acted as a catalyst is not certain, though clashes between Jatavs and Jats in these areas were reportedly common. The Lodha Commission was critical of the district administration for not carrying out preventive arrests and not issuing prohibitory orders. Instead, the Commission noted, an elaborate exercise was undertaken against Jatavs.

As in most States, the rate of registration of crimes against Dalits in Rajasthan is not very high. All ruling parties have done little to remedy this. A study conducted by the CDR in 2008 found that of the total 1,261 cases of atrocities against Dalits that year, nearly 380 related to the practice of untouchability; 149 related to violence against women; 140 involved land disputes; and 181 pertained to violence during elections.

Vasudev, State secretary of the Communist Party of India (Marxist), explained that eastern Rajasthan was particularly vulnerable to caste violence owing to the benefits of education percolating down. However, he said, the tribal people of southern Rajasthan were in a much worse state.

“Until and unless there is an organised protest, no first information report [FIRs] is registered. We need to bring land reforms centre stage,” he said, adding that the increasing economic deprivation of these sections made them more vulnerable than before. He mentioned the gangrape of a Dalit college student on August 15 at Neem Ka Thana in Sikar district. It was only after the CPI(M) and other organisations made a hue and cry the culprits, all upper-caste youth, were arrested.

The situation of S.Ts was no less different. Barring one dominant section residing in the eastern parts of the State, which benefited most from the reservation policy, the tribal people of southern Rajasthan remain more or less where they were before Independence.

Said Vasudev: “Twenty years ago, at a meeting in Dungarpur, I asked a group of Bhils what their concept of heaven was. An old lady, Mangi Bai, said heaven for her meant a bowl of sweet laapi [wheat porridge], a guthdi [a cover made from old clothes] and a jhompi [hut]. They dream of the same things even today.”

A State secretariat member of the CPI(M), Dhuli Chand Meena, who is associated with the Kisan Sabha in southern Rajasthan, said the atrocities against the tribal people were mainly land-related. In those parts, where the remnants of feudalism still persisted along with mixed populations, discrimination existed in the form of denying the tribal people the right to sit on cots or in chairs or even wear proper clothes, he said.

“Whenever cases are registered, they are not followed up and cognisable offences are not registered. The conviction rates for atrocities committed against the tribal people are very low. In fact, what can be said for the S.Cs can be safely extended to the S.Ts as well, the only difference being that all the human development indicators of the S.Ts in southern Rajasthan are very poor when compared with even the rest of the State,” Dhuli Chand Meena said.

If anything, the Act, along with other laws such as the Forest Rights Act, needs to be implemented rigorously. For a social reform measure to succeed one of the basic prerequisites is political will, which seems to be lacking.

By Venkitesh Ramakrishnan
in Bathani Tola and Patna

“THE senas [militia] are not very active and there have been no big attacks or mass killings. But life is still the same. We are here and they are there, in different parts of the village, with not much communication or contact. And, of course, there is the fear that something may break out unexpectedly. We need to keep vigil all the time.” This was how Lal Chand Chaudhary, 55, described the present situation at Bathani Tola in Bihar’s Bhojpur district.

Thirteen years ago, on July 11, 1996, he, a Dalit, lost his wife, Sancharu Devi, and one-and–a-half-year-old girl child, Baby Sugandhi, when members of the Ranveer Sena, the self-professed militia of the upper-caste Bhumihar community, launched a ferocious attack on the hamlet. Among the 22 people killed were 12 women and eight children. Lal Chand got a compensation of Rs.1 lakh from the government and help to set up a telephone booth, but that did not change social equations. As he says, his community of Dalits and a clutch of Muslims occupy the Tola and the Bhumihars stay a little distance away in the main part called Barki Kharaon.

Lal Chand and many others, including his neighbour Phaguni Chaudhary, whose mother and brother were killed that day, made bold to stay on in Bathani Tola and show that they would not succumb to terror. But not so Naimuddeen, the bangle seller who lost six members of his family in the attack; he moved to Ara, the district headquarters of Bhojpur. He, too, got a compensation for the lives lost and the job of a peon in a government office in Ara.

Talking to Frontline, Naimuddeen said that though he has a job the governments that came to power since 1996 are yet to fulfil the promises and assurances they gave. “As I lost six of my kin, the then government offered jobs to two survivors in the family. But the promise made to my son is yet to be kept despite our submitting innumerable applications to successive governments over the past decade,” he says.

Naimuddeen adds that the administration has failed to address the security concerns of the family. “As a family that got ravaged in a gruesome caste attack, I had asked for a gun licence to protect myself, but that has been denied systematically. There is the propaganda that the Ranveer Sena is a dead organisation, but that is entirely untrue,” he says. “They are regrouping under a new leadership and have stepped up their activities in many places, including Bhojpur district. The only succour we have is from the Communist Party of India (Marxist-Leninist-Liberation) led by leaders like Dipankar Bhattacharjee.”

The CPI (ML) has been active in the village since the early 1970s and has been winning panchayat elections in and around Bathani Tola since 1978. According to a number of Dalits and Muslims, this political affiliation does help in keeping the balance of power in the village. Still, there are stray attacks and skirmishes. Last year, two young men of the Tola, Dhanesh Kanu and his friend Tarakeshwar Yadav, were killed in the Barki Kharaon area. Kanu, a plus-two student, had gone for a function in his school and had taken a short-cut close to Barki Kharaon. He and Tarakeshwar Yadav were done to death in that part of the village. Kanu’s aunt Kunti Devi said her nephew was killed by members of the upper-caste militia in a clear instance of caste killing. However, the local police and the administration treated this as a case of personal vendetta.

According to activists of the National Campaign on Dalit Human Rights (NCDHR), such official apathy is nothing new and is not confined to places like Bathani Tola. They point out that the families of the 10 Dalit victims belonging to the Nat community, who were lynched by upper-caste people on September 13, 2007, in Dhelpruva village in Vaishali district, were also given similar treatment by the administration. However, political mobilisation by different Dalit organisations, including the Ram Vilas Paswan-led Lok Janshakti Party (LJP), the CPI(ML) and the NCDHR, has strengthened the resolve of Dalit communities in many parts of the State to fight for their rights.

Lakshmanpur-Bathe, where 58 Dalits, including women and children, were killed on December 1, 1997, by Ranveer Sena activists, is cited as a case in point by many observers. Dalits of the village have reportedly become more organised after the incident and demand their rights in a collective and effective manner.

This has curtailed the strike power of many upper-caste militias. For 25 years, starting from the mid-1970s, Bihar had a large number of active upper-caste militia groups, making the State synonymous with atrocities against the S.C. Over 80 armed attacks took place against Dalits and other oppressed sections during this period and claimed more than 300 lives. Such rampant attacks have come down in the past five years.

However, as the people of Bathani Tola, including Lal Chand Chaudhary, noted, this by itself has not brought about dramatic changes in the social equations or in the discrimination against Dalits. A fear that things can take a turn for the worse rules large sections of the Dalit population in Bihar even today and the community exists in a state of eternal vigil.

By S. Dorairaj in Chennai

IF the Kizhavenmani carnage of Dalits in 1968 in the then composite Thanjavur district is an indelible blot on the history of Tamil Nadu, there followed many more such crimes, each more heinous than the previous one. The Melavalavu multiple murders, the Tamiraparani massacre, the Kodiyankulam violence, the Nalumoolaikinaru atrocities, the Thinniyam humiliation and the murder of democracy in Pappapatti and three other reserved village panchayats where elections were scuttled for 10 years were the worst among them. The enactment of the S.C./S.T. Act in 1989 and the notification of its Rules in 1995 made no difference to this horrible situation.

According to the State Crime Records Bureau, from 2003 to 2008 a total of 8,209 crimes against Dalits were reported, including 5,047 cases under the S.C./S.T. Act and 3,162 under the IPC. The average conviction rate in both categories was only 24.26 per cent. But Evidence, a Madurai-based NGO, has put the average conviction rate in the cases registered under the S.C./S.T. Act alone at 5 per cent to 7 per cent.

Progressive and secular forces by their concerted efforts have recorded resounding successes in the legal battle against casteist forces in a few cases. In the Melavalavu (Madurai district) case, relating to the gruesome killing of the local panchayat president K. Murugesan and five other Dalits on June 30, 1997, the Supreme Court upheld the life sentence awarded to 17 persons in its order on October 22, 2009.

Uthapuram in Madurai district is another success story where a part of the “wall of untouchability” put up by casteist forces was demolished and the victims of police excesses were paid a total compensation of Rs.15 lakh on the recommendation of the inquiry commission appointed by the Madras High Court in January last. The Dalits’ struggle to end caste oppression in the village had the complete backing of the Tamil Nadu Untouchability Eradication Front (TNUEF), the CPI(M) and the All India Democratic Women’s Association (AIDWA).

Much ahead of these two cases, the apex court gave a landmark judgment in a case relating to police excesses in Nalumoolaikinaru in Tuticorin district in 1992, holding 82 police personnel, including a Deputy Inspector General of Police and the Superintendent of Police, guilty. The court also ordered disbursement of compensation, totalling Rs.23 lakh, to the victims, who were represented by AIDWA.

In several other cases, the perpetrators of violence went scot-free. Notable among these is the Kodiyankulam violence of August 31, 1995, in which the police let loose terror in a Dalit habitation, and the Thamiraparani massacre of July 23, 1999, which claimed 17 lives when the police launched a brutal attack on a rally of estate workers in Tirunelveli town even as they ran towards the river in a bid to escape.

In the Thinniyam torment of May 22, 2002, the accused got away with a mild punishment though they had committed the grave crime of forcing two Dalits to eat each other’s excreta. The issue was brought to the notice of the National Human Rights Commission (NHRC) and the National S.C.-S.T. Commission by the Tamil Nadu People’s Watch.

One reason why only a small number of cases are registered is that Dalits do not file complaints against the dominant communities fearing reprisal, as they depend mostly on the landholders for their livelihood. The time-consuming nature of litigation also forces them to keep away from police stations, says P. Sampath, TNUEF convener. “Even if they lodge a complaint under the S.C./S.T. Act, the police ask the caste Hindus to lodge a counter complaint so that a criminal case is filed against the Dalits, too. The negligible conviction rate in cases under the S.C./S.T. Act also demoralises the oppressed sections,” he adds.

Senior advocate P. Rathinam, who has fought many cases of atrocities against Dalits, says that most of the crimes against the oppressed sections are not registered under the S.C./S.T. Act. “Even when they are registered, the first information report is diluted deliberately. In certain cases, due compensation, as per an order issued by the State government in 1998, is not disbursed to the victims,” he alleges.

A. Kathir, director of Evidence, has urged the State government to conduct a detailed review of the implementation of the various aspects of the S.C./S.T. Act, such as the registering of cases and the preparation of charge sheets. Of a total of 6.68 lakh cases of cognisable crimes reported in 2008, only 0.24 per cent were under the S.C./S.T. Act.

The special courts set up by the government for quick disposal of cases relating to atrocities against Dalits need better infrastructure to achieve their objective, he says. “A detailed survey on the atrocity-prone villages is the need of the hour,” he added.

As per official data, discriminatory practices against Dalits exist in 28 districts in the State, which has been ruled by the two major Dravidian parties – Dravida Munnetra Kazhagam (DMK) and the All India Anna Dravida Munnetra Kazhagam (AIADMK) – since 1967.

Policy note

The government’s policy note on the Adi Dravidar and Tribal Welfare Department for 2009-2010 refers to the “effective implementation” of the Protection of Civil Rights Act, 1955, and the S.C./S.T. Act to abolish untouchability and to prevent atrocities against Dalits. It speaks about the role of the human rights and social justice wing of the State police in enforcing the provisions of the two Acts and of the four special sessions courts functioning in Tiruchi, Thanjavur, Madurai and Tirunelveli for the speedy disposal of cases.

However, the government’s efforts to create awareness against untouchability have had very little impact going by Minister for Adi Dravidar Welfare A. Tamilarasi’s own admission in the policy note, which was tabled in the Assembly on July 3. In it she says the message of the “mass awareness campaign and the social justice tea parties” launched by the government has reached only six lakh people so far. Cosmetic measures will do nothing to bring about any significant change in the prevailing scenario, says P. Sampath. Several other activists who have been working for the welfare of Dalits in a focussed manner also feel that radical socio-economic programmes have to be implemented for the empowerment of Dalits and to end disparities in terms of productive resources such as land, finance, education and employment, besides taking stringent measures against the perpetrators of atrocities against them.

This becomes particularly important in a State where Dalits are numerically a significant section. As per the 2001 Census, Dalits form 19 per cent and the S.Ts 1.04 per cent, of the total population of 6.24 crore. Of the 385 blocks in the State, 153 have more than 25 per cent Dalit population and around 3,550 villages have more than 40 per cent Dalit population. S.Cs and S.Ts constitute more than 20 per cent of the population in six of the 30 districts (as of 2008). Among them, in Tiruvarur they form 32.35 per cent, Nilgris 31.23 per cent, Perambalur 30.21 per cent, Cuddalore 27.76 per cent and Villupuram 27.39 per cent.

Official data for 2008 indicate that curbing atrocities against the oppressed sections is a formidable task. There are 186 villages classified as “atrocity prone” and 230 that are “dormant atrocity prone”. Among them, 166 villages have been described as “highly sensitive”.

Various social indicators make it amply clear that the State has a poor record of empowerment of Dalits. According to official sources, 31.2 per cent of the Dalit population in rural areas and 40.2 per cent in urban areas are among the below-poverty-line social groups. Official documents also point out that the literacy level of Dalits is much lower than the general literacy rate. According to the 2001 Census, as against the State’s general literacy rate of 76.2 per cent, only 63.2 per cent of Dalits and 41.5 per cent of members of the S.Ts are literate. The lack of political will for radical land reforms and redistribution of surplus land to landless Dalits has contributed to conflicts in the rural areas. Even official sources point out that though 83.08 lakh Dalits live in villages, only 10 per cent of them are cultivators. Around 90 per cent of these cultivators have less than one hectare of land. As per the 2001 Census, 58.5 per cent of Dalits are agricultural workers and 29 per cent fall in the “other workers” category.

Chief Minister M. Karunanidhi’s statement on November 11 that surplus land has been distributed to 61,985 landless Dalits under the Tamil Nadu Land Reforms (Reduction of Ceiling on Land) Act, 1970, only shows the yawning gap between the Dalits’ quest for land and the government’s response, a veteran leader of the All India Kisan Sabha points out.

Demanding a holistic approach to the issue, the TNUEF, an umbrella organisation of 45 State-level class and mass outfits and 15 Dalit and human rights associations, took out a rally in Chennai on October 27. Besides calling for the strict implementation of the S.C./S.T. Act and the Protection of Civil Rights Act, 1955, it called for steps to redeem the 2.5 lakh acres (one lakh hectares) of “panchami” lands grabbed from Dalits. Setting up of a State Commission for S.C.-S.T. welfare; the formation of district-level panels with due representation to Dalit organisations and secular forces to monitor the implementation of these two Acts; and the raising of the percentage of reservation for S.Cs to 19, commensurate with their population, are among the other demands of the front.

By Vikhar Ahmed Sayeed in Bangalore

ON August 2, 1987, in Bendigere village of Belgaum district in northern Karnataka, four S.C. youth were forced to eat human excreta by caste Hindus who accused them of stealing maize. According to excerpts from a report of the Karnataka Legislature Committee for the Welfare of Scheduled Castes and Scheduled Tribes for the year 1987-88, the upper-caste men abused the Dalit youth using their caste name and threatened them: “You bloody fellows, go and bring human shit and eat it, otherwise you will have to face severe consequences.”

Several days went by before this gross act was even reported, but the incident (along with other such instances across the country) was responsible for the inclusion of Section 3(1)(i) in the S.C./S.T. Act. However, the Act has not led to any significant reduction in atrocities reported against Dalits in the State.

According to the 2001 Census, the S.Cs constituted slightly over 16 per cent of the State’s population and the S.Ts around 6.5 per cent. According to National Crime Records Bureau (NCRB) statistics for 2007, there were 205 incidents of crime against members of the S.Cs and 1,844 incidents against members of the S.Ts. This is partly because Dalits, more than Adivasis, have fixed roles in the political economy of a populated area.

According to the Directorate of Civil Rights Enforcement, a State-level body that looks into complaints regarding atrocities against members of the S.Cs and the S.Ts, the number of convictions under the Act is insignificant. The majority of the cases are either pending trial or are classified as “B reports” (meaning that the complaint itself has been proved wrong or false).

According to the NCRB’s statistics, Karnataka ranks sixth in the country in the number of crimes against S.Cs and eighth in crimes against S.Ts. (By population, Karnataka ranks ninth in the country.)

According to S. Japhet, Director of the Centre for the Study of Social Exclusion and Inclusive Policy at the National Law School of India University, part of the reason why the Act has failed to deter atrocities against Dalits is that Karnataka has some of the lowest conviction rates for complaints made under it. Japhet was the coordinator for a research that led to a report in 2005 evaluating the performance of special courts that were set up for dealing with cases of atrocities under the S.C./S.T. Act.

According to Japhet, this is one of the most serious drawbacks in the implementation of the Act. “In the majority of districts in the country, there are no special courts as mandated by the provisions of this Act,” he said. Between 1997 and 2000, only four districts in Karnataka had the special courts compared with 12 in Andhra Pradesh, 10 in Gujarat, 35 in Madhya Pradesh, 17 in Rajasthan and 40 in Uttar Pradesh.

According to K.L. Chandrashekhar Aijoor, research assistant at the same centre where Japhet works, the number of special courts in Karnataka has only gone up to seven now, but considering that every district is supposed to have a special court, Karnataka should have 29 such courts. (These are usually sessions courts that are briefly designated as special courts to deal with cases under the Act.)


One of the most glaring examples of the failure of the Act in Karnataka was the acquittal of all the accused in the March 2000 massacre of seven Dalits at Kambalapalli village in Kolar district, around 80 kilometres from Bangalore. The massacre took place after a skirmish between Vokkaligas and Dalits. The gruesome killings were the result of a cumulative build-up of tension between the Vokkaliga and the increasingly aware Dalit communities in the region.

The immediate provocation was an altercation between two Dalit youth and a Reddy (Vokkaliga) man over the use of a certain stretch of road. Following this a mob of Vokkaligas attacked a group of Dalits who had returned after filing a police complaint. The houses of a Dalit and his neighbour were burnt. Among the seven Dalits who died were a woman and her two sons and daughter.

According to media reports, the witnesses turned hostile when the case came up for hearing in the local court. All the accused were acquitted. The matter is waiting to be heard in the Karnataka High Court.

Such prolonged delay demonstrates that the twofold purpose of the Act – to prevent atrocities and to provide compensation and rehabilitation to victims after a speedy trial – has not been fulfilled.

More than 25 per cent of the population in Kolar is Dalit and the district has a history of caste violence. In the decades before the massacre, there was resentment over the establishment of a Dalit Sangharsh Samiti (DSS) chapter in the district. Part of the discord between upper and lower castes stems from the seemingly upward mobility of Dalits.

Karnataka has an active Dalit movement, which started in the 1970s. As its effects began to filter down, the consciousness among Dalits about their constitutional rights increased. This has led to a change in their attitude towards caste. The upper castes have resented this change. Even trivial things like the way a Dalit dressed annoyed upper-caste members. In Kambalapalli, for example, one of the victims used to tuck in his shirt.

A report on the Kambalapalli carnage published by the People’s Democratic Forum in April 2000 said: “The tucked-in shirt is like a red rag for caste Hindus, for it symbolised the growing arrogance of Dalits and their modernisation.”

While the conscious identity of Dalits has led to resentment from the upper castes in rural areas, even urban areas like Bangalore are not immune to caste discrimination. “Over the past two years, two Dalit students committed suicide in Bangalore – one was a student of the Indian Institute of Science, while the other was a student of the University of Agricultural Sciences. The prejudiced mindset of caste-Hindu society led to creating a situation where these students committed suicide,” said Lolaksha, a social activist who follows closely the instances of discrimination against Dalits in the State.

By Aparna Alluri in Hyderabad

LALITHA (name changed on request), 25, is awaiting her court summons. A member of the women’s wing of the Madiga Reservation Porata Samithi (MRPS), she was active in her local community until she became a victim herself.

As part of community initiatives, she often visited the local police station. When a new circle inspector was appointed in March 2008, she had a minor altercation with him. She says his immediate response was, “You are a Madiga and you are wearing sunglasses, driving a bike and walking around so confidently. Who do you think you are?”

“For nearly eight months, every time I met him, he repeated the same thing. He abused me by my caste name several times.” The verbal taunts soon escalated to sexual overtures. When she questioned him about complaints she had received against him, things became worse. “In November, I was arrested and detained for one night. He threatened me, shoved me against a wall and warned me against confronting him again. I was shifted to the women’s police station only at 1-30 a.m.,” she says.

Her case is pending with the State Human Rights Commission. She is yet to file an FIR against the officer for fear of further harassment. “I don’t know what else to do,” she says. “He expects me to cower in fear, but why should I?” she says. “I am educated, I know right from wrong and I know my rights. In what way am I lesser than he?”

Lalitha’s case is more the rule than the exception. Counter-cases have become an easy recourse to delaying and eventually denying justice to historically disadvantaged groups. “For every case filed by a Dalit there is a counter case against him/her by the accused,” says M. Chalapathi, High Court advocate and Dalit rights coordinator, Human Rights Law Network (HRLN).

“The police register the second complaint and arrest the Dalit victim, compelling him/her to withdraw the case. Or, they keep both cases pending and use the case as ammunition when the victim pressures them to act,” says Bojja Tarakam, eminent lawyer and Dalit rights activist.

This remains the situation, even after 12 of the State’s 23 districts have been identified as atrocity-prone by the government. Attack is the most common form of atrocity, accounting for 27 per cent of the crimes.

Of the State’s population of 7,62,10,007 (2004-05), the S.Cs constitute 1,23,39,496 and the S.Ts 50,24,104. Dalits belong mainly to two castes – Mala and Madiga – and are agricultural labourers. The land-owning, politically dominant groups are Reddys, Kammas, Rajus and Kapus. This social and economic polarisation has had significant political implications. The 1980s marked the advent of the Telugu Desam Party (TDP) and the rise of the Dalit movement. N.T. Rama Rao’s rise to power is often seen as the political ascendancy of coastal Andhra’s rich Kamma farmers. The atrocities against Dalits in Karamchedu (1985), Neerukonda (1987) and Chundur (1991) were seen as manifestations of a conflict caused by the shift in political power at the top and the rising consciousness below.

More than two decades later, the State’s record in checking atrocities against Dalits remains poor. According to figures with the Department of Social Welfare, 4,157 cases were registered in 2008 under the S.C./S.T. Act. Of these, 1,783 cases were closed as false and 1,004 are pending completion of investigation. For the same period, out of 3,661 cases brought to court, only 128 resulted in convictions. Interestingly, only in eight cases appeals were filed on the acquittals.

As for visits by the Vigilance and Monitoring Committees prescribed under the Act, only 45 visits were recorded for 19 districts in 2008. Information was cited as unavailable for the remaining four districts.

Currently, there is a writ petition pending in the Andhra Pradesh High Court demanding the effective implementation of the S.C./S.T. Act, 1989, and Rules 1995.

The counter-affidavits filed by the police in response to the petition speak for themselves. Police records in the period from 1995 to 2006 show that 21,000 cases were registered under the Act. Of these, more than 14,000 are pending without a charge sheet being filed, even though the Act stipulates that investigation must be completed within 30 days of the FIR being filed. “This is a clear violation of Section 4 of the Act, which deals with dereliction of duty,” says Chalapathi.

The petition demands that criminal proceedings be initiated against those police officers who fail to discharge their duties as prescribed under the Act. “The Act insists on special courts and special public prosecutors to enable speedy trial. But cases have been pending for nearly 10 years in the investigation stage itself,” says Bojja Tarakam. “Yet not a single police officer has been prosecuted for negligence.”

He says one reason for such high pendency is the many attempts to quash cases by claiming that they are false. “When the High Court receives such a petition, it stays all further proceedings, including investigation, though the Supreme Court has directed the High Court not to interfere in investigations.”

However, the reasons for delay cited in the counter-affidavits are far more incredulous. The reasons include “for want of accused”, “for want of examination of witness”, “no post-mortem report”, “no FSL [forensic science laboratory] certificate”, even for cases pending since 1995. Even VIP duty is submitted as a reason for numerous investigations pending since 1996.

“Whose fault is that?” asks Chalapathi. “Is this not negligence of duty?”

The delay itself seems to have become the reason in many instances. “Case Diary not available and as such unable to furnish the exact reason for delay,” or “as the case was registered in 1998, reasons not known to present Investigating Officer,” reads one entry in the register. “Close to 105 reasons have been furnished and not one is legally substantial,” says Chalapathi.

“I have personally told police officers that they may be technically right in closing certain cases, but the matter doesn’t end there. If witnesses turn hostile, they need to ask why that has happened,” says A. Vidyasagar, former Commissioner of Social Welfare. He agrees that special courts do exist, but says “the progress they have made seems to suggest that cases under the S.C./S.T. Act are only one of the things they address rather than their priority”. He says a review at the Chief Minister’s level in 2008 led to a suggestion that a Deputy Superintendent of Police (DSP) must be made to supervise the inquiries in every district. “The idea was accepted,” he says. “The only solution is continuous review.”

Trial is a far cry for many because registering a case is often a struggle by itself. Getting a case registered under the S.C./S.T. Act is a bigger hurdle. Whether the accused abused the victim by his caste name is often seen as the grounds for registering cases under the Act. However, the Act only stipulates that the victim must belong to the S.C./S.T. community and the accused to another community. If the victim or his/her family has a Christian name, or is known to go to church, they are told they cannot register the case under the Act. “This is sufficient to file a petition quashing the case as false. The court gives the victims 15 days to file an objection, failing which the case is closed. Given that most of these people are poor and uneducated, they may not respond in time,” says Chalapathi.

Curiously, caste certificates are often demanded not just to register a case but also for the investigation to proceed. In numerous cases, this was cited as the reason for the delay in the investigation.

The hurdles are many and victories have been few and far between. Even as hundreds wait for justice, police records and trials only present a part of the picture. “Untouchability is still rampant. Dalits are still not treated as humans. Where is the question of human rights?” asks Chalapathi.








High and dry


The benefits of the Prevention of Atrocities Act have not reached the tribal people because of its tardy implementation.

THE Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has attempted to include the exploitation of the Scheduled Tribes (S.T.s) in its list of “atrocities”, but does it actually address the specifics, the magnitude, and the unique dimensions of the problems faced by these communities? The answer, according to a large number of social activists who have taken up tribal issues from within the communities as well as from outside, is in the negative. They point out that the Act has to be amended in order to address the issues of S.T.s specifically as it has failed to check the harassment faced by these communities.

They also add that the need for amendments is stronger than ever now as the government itself has become, in the contemporary political and economic context, one of the biggest abusers of S.T. privileges guaranteed by the Fifth Schedule of the Constitution. The Fifth Schedule aims to protect the right of the Adivasis to live in scheduled areas, but at present the Union and many State governments are working in collaboration with big business houses for indiscriminate industrialisation in forest areas.

The history of the S.T.s in independent India also underlines the need for legislation and related executive measures to address their concerns. By any yardstick, it is clear that if the section of the population with the lowest security of life and livelihood is the Scheduled Tribes. Though various pieces of legislation and constitutional securities have attempted to provide social and economical security to them, it is clear that the S.T. population across the country falls far behind the rest in all measures of the Human Development Index in demographic comparisons. The problems of the S.T.s are unique and separate from those of the S.C.s as a large section of them lives in scheduled areas, mostly forests. Consequently, their level of social and economic interaction with the dominant ‘modern’ world is much less than that of the S.C.s.

In the case of the S.T.s, most cases of atrocities are related to land issues, and in most cases the S.T. victims are not aware of the Act. One of the most important reasons for this lack of awareness is that the tribal populations who still follow their traditional lifestyles are governed by multiple authorities. This correspondent, while travelling in the hinterland of Madhya Pradesh – Harda, Betul and Satna – found that for the villagers, the authorities simply mean an exploitative combination of nakedaar, hawaldaar and patwari (forest guard, police guard and the lowest-level revenue inspector). The tribal people face the excesses of not only Forest Department staff but also those of the police and district administration officials.

Before 2006, when the the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act was passed, the tribes were at the mercy of the Forest Department and the police to cultivate their traditional lands and to gather community resources from the forests because the forests were reserved lands and, under the colonial Indian Forests Act, belonged to the government. Consequently, problems arose as these tribes are historically dependent on forest lands. This led to Forest Department officials engaging the tribal people in forced labour and extracting bribes to let them live off forest resources. Any protests by the tribal people would lead to indiscriminate arrests for “encroachment” and other petty offences. There are cases of compoundable offences in which tribalpople were detained at random by the police. Timber contractors and their touts in the forest regions are also highly exploitative.

Even after the Act came into force, and also after the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Ryles were framed in 1995 under Section 23 of the Act, S.T.s could not take any advantage of it because of their lack of awareness. However, since the Forest Rights Act came into force, the harassment has decreased. Yet, like the Prevention of Atrocities Act, the Forest Rights Act is made ineffective by flawed implementation. Today, most tribal movements are a consequence of industrialisation drives permitted by the government. It is important to notice that most of the industries coming up in the forest areas are extractive industries which, it is feared, will ruin the self-sufficient traditional economy. This causes migrations of tribal communities, subsequently leading to the exploitation every unskilled migrant worker faces. If seen within the purview of the Act, all these forms of exploitation could be seen as “atrocities”.

K.B. Saxena, in his National Human Rights Commission (NHRC) report, points out that in areas affected by insurgency and naxalite activities, the S.T.s face dual violence – from caste-Hindu landlords, who often have private militias, and from the state. “The two operate with a certain degree of nexus but with different motivations and through different methods. State bans both the insurgency/naxalite organisations as well as private militias of dominant castes/class in pursuance of its primary duty to maintain public order. As a result, police and security forces carry out combing operations in search of leaders and sympathisers of both. But the police and security agencies during their investigation and search operations make a differential approach,” the report says. It goes on to explain that the forces unleash violence during such operations on residents of S.T. villages and are extremely offensive towards the women. Similar operations are not carried out in upper-caste settlements, and even if there are any operations in those areas they are executed mildly and women are treated with dignity.

The poor implementation of the Act is also a result of the district machinery cracking down on all forms of ordinary and legitimate democratic protests. For instance, in Madhya Pradesh, many social activists were slapped with cases under the Madhya Pradesh Rajya Surakshya Adhiniyam, 1990. This is important, political analysts believe, for the age-old industrial-caste-administration-military nexus to maintain its supremacy over the rich resources of the region.

Tribal rights activists have been raising their voices against the atrocities on certain S.T. communities which during the British period were described as “criminal tribes” or “habitual offenders” as their members were perceived to be crime-prone. Though these tribes were denotified after Independence, their members were routinely picked up for questioning whenever there was a crime in the area and were allegedly tortured in order to extract confessions, activists say. Separate laws were enacted to deal with them. The old discriminatory mindset still influences the administration’s behaviour in dealing with such tribes – a different form of racism.

The data compiled by the National Dalit Movement for Justice after a nationwide survey show that from 2002 to 2008, only around 20,000 cases of atrocities against S.T.s had reached the courts every year, out of which only around 30 per cent were registered under the Prevention of Atrocities Act. The rest were pursued either under the Indian Penal Code or under the softer Protection of Civil Rights Act. Even more stark is the rate of pending cases, which is about 81 per cent. The National Crime Records Bureau’s figure for 2007 is even lower. It recorded a total of 5,532 cases of crime against the Scheduled Tribes in India, out of which only 1,104 cases were registered under the Prevention of Atrocities Act. A total of 9,483 persons were arrested in 2007.

Cornerstone, a tribal rights group in Tamil Nadu, has done extensive research on the Prevention of Atrocities Act. It agrees that the Act has not fully reached the Adivasis. “We, along with some other groups, have suggested some amendments to the Act. First, the violation of the Forest Rights Act needs to be covered under the PoA Act. Second, the impunity that forest officials enjoy needs to corrected, and the Indian Forests Act, too, needs to be covered under the PoA Act,” Richard Devadoss, director of Cornerstone, told Frontline. He further explained that atrocities against the S.T.s could be seen in various ways of denial that are all born out of the systematic exclusion of S.T.s from mainstream policy. For instance, he explains that S.T. certificates are being denied to historical tribes such as Irulas in the Cuddalore region and the forest tribe Pulliyars in Kodaikanal, Tamil Nadu. He says that land rights were being denied to non-forest tribes, too. “The Forest Protection Act guarantees 10 acres of land for each Adivasi but we have hardly seen its implementation. Denial of community resources and cultural practices are also a huge issue. Because of this, Adivasis are being denied access to water and their traditional habitat as they are forced to move away from their households. All these can easily be termed as atrocities on the S.T.s.”

The atrocities are not limited to forest and rural areas. In the last decade, a form of racial atrocity against students and workers of northeastern India in the metropolitan cities has been on the rise. Delhi has registered numerous cases of racial discrimination of people from the Northeast. The prejudices among North Indians are often highlighted through cases of eve-teasing, rape and professional discrimination against northeastern women and men. A typical instance would be the recent high-profile murder case of a Naga girl, Ramchanphy Hongray, in which an IIT researcher, Pushpam Sinha, was arrested. Notably, though the police admitted that Pushpam Sinha might have thought it would be easy for him to lure Hongray because of her upbringing in the liberal setting of the Northeast, the Prevention of Atrocities Act has not been invoked.

Suhas Chakma, director of the Asian Centre of Human Rights, said, “The conviction rate in the PoA Act in cases dealing with the S.T.s is only 27 per cent, much lower than the special laws and criminal laws. In 2007, there were around 29,000 cases of land disputes among tribal people reported and not a single one was adjudicated in favour of the tribal people. Should this be treated as just a land issue? It is the historical oppression and atrocity on the S.T.s that has led to the growth of naxalites in the tribal region. No one is clear about the Act vis-À-vis the S.T.s. In case of large-scale displacement, we do not know whether the Land Acquisition Act that gives the government the power to acquire land would be applicable or the PoA Act.”

He said that legislation alone could not solve the problem. He ointed out that the tribal people were among the most exploited communities in the country though Acts such as the Andhra Pradesh Schedule Areas Land Transfer Regulation, 1959, the Assam Land Revenue Regulation Act, 1886, the Chotanagpur Tenancy Act, 1908, the Santhal Parganas Tenancy Act, 1949, the Maharashtra Land Revenue Code, 1966, the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974, and the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, had been in force. Perhaps, what is necessary in such a context is a focus on proper








Victims always


The S.C. and S.T. (Prevention of Atrocities) Act has failed to make Dalits any safer.

THE ascent of the Mayawati-led Bahujan Samaj Party (BSP) to power in Uttar Pradesh on May 13, 2007, was seen as a defining moment in the politics of Dalit empowerment in the country. The Scheduled Caste (S.C.) leader of an avowedly “Dalit assertive” party had been Chief Minister earlier too, but the difference this time was that her party came to power on its own, without needing the support of other parties and independent members.

Thousands of Dalits who gathered in the State capital, Lucknow, on that day expressed the hope that atrocities against the S.Cs would decline drastically under the new “single-party” regime. Many social activists and observers who spoke to Frontline then also hoped that a single-party government under a Dalit Chief Minister in the country’s most populous State would have a salutary effect on Dalits’ condition elsewhere in the country too.

Approximately a year later, papers and documents presented at a two-day international seminar on Uttar Pradesh, organised by the Observer Research Foundation (ORF), a Delhi-based think tank, provided an indication of the situation on the ground. The papers documented that “within a month of the [Mayawati] government’s assumption of office, seven Dalits were killed in Muzaffarnagar, while three Dalit women were raped in the same district”. The papers also revealed that reports from areas such as Rae Bareli, Mohanlalganj, Lakhimpur Kheri and Mahoba were of a similar nature and that atrocities against Dalits continued in spite of the political gains made by the BSP.

The presentations at the seminar pointed out that the political leadership found it difficult to implement what was perhaps its most important Dalit empowerment programme – the allotment of patta land to Dalits – on account of strong anti-Dalit sentiments within the administration.

A field study presented at the seminar revealed that in scores of villages in western Uttar Pradesh, in districts such as Baghpat, Muzaffarnagar and Meerut, Dalits were unable to occupy patta land allotted to them because of intimidation and in some cases even physical prevention by upper-caste groups. Not surprisingly, sections of the police and the administration were hand in glove with the upper-caste elements. Such was their allegiance to the caste interests that even repeated orders from the Chief Minister’s Office to the District Magistrates failed to have any effect in a number of cases.

The National Crime Record Bureau’s (NCRB) statistics for 2007 for crimes against members of the S.Cs and the Scheduled Tribes (S.Ts) corroborated the presentations made at the seminar. The figures showed that Uttar Pradesh topped the list on atrocities against the S.Cs and the S.Ts, with 2,113 cases out of a total of 9,819. The data also indicated a 10.2 per cent increase in crimes against the S.Cs and the S.Ts at the national level. Uttar Pradesh accounted for 20.5 per cent of all cases in India. The BSP’s argument was that under the “friendly” Mayawati regime more S.C. members made bold to register cases against their oppressors.

There was merit in this argument, but the fact remained that Dalits were at the receiving end in large parts of Uttar Pradesh, where the politics of empowerment of the S.Cs and the S.Ts, the protection of their interests, their physical safety and the assertion of their constitutional rights had acquired, in comparative terms, the highest political and electoral acceptability.

Social and political observers hark back to an observation made by B.R. Ambedkar to explain this context. Ambedkar had said: “History shows that where ethics and economics come in conflict, victory is always with economics. Vested interests have never been known to have willingly divested themselves unless there was sufficient force to compel them.”

Long-standing apartheid

Twenty years after the passage of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the vociferous advocacy of the same by almost all political parties and even the rise of the politics of S.C.-S.T. empowerment across the country, it seems that the quantum of “sufficient force” visualised by Ambedkar would have been colossal. As the case of Uttar Pradesh indicates, the effective implementation of the Act would take a lot more than electoral victories and increasing political space.

The gaps in the implementation of the Act stand in stark contrast to the convictions that underlay its enactment. In simple terms, the legislation aims to prevent the various forms of offences by persons other than members of the S.C. and the S.T. against members of these communities. But studies have shown that it has systematically been prevented from achieving its goal. A number of factors have contributed to this, but the most important is the caste and class prejudices in society. These prejudices have got institutionalised, through religious and social practices, into a unique system of long-standing apartheid. That they have a class character is also evident; the Dalit and Adivasi communities that are discriminated against constitute almost 80 per cent of India’s poor.

The S.C./S.T. Act is seen to be empowering as it is the first legislation to use and define the term “atrocities” committed against the S.Cs and the S.Ts. Introducing the Bill, the then Union Law Minister, B. Shankaranand, said the normal provisions of the existing laws, such as the Indian Penal Code (IPC) and the Protection of Civil Rights Act (PCRA), 1955, had been found inadequate to check the atrocities, gross indignities and offences against the S.Cs and the S.Ts. Therefore, the Act prescribes harsher punishments than the punitive measures detailed in the IPC and the PCRA, which used only the term “offences” vis-À-vis caste-related crimes.

The Act also introduced an executive system specifically to govern justice for the S.Cs and the S.Ts in cases of 22 broad types of atrocities relating to socio-economic discriminatory practices, which are listed in it. This system should comprise special courts, a special public prosecutor, nodal officers in each State, an S.C. and S.T. protection cell, and State-level and district-level monitoring and vigilance committees to identify atrocity-prone areas, and a special officer appointed by the district head to look after each case of atrocity. In actuality, in most States the full system has either not been constituted or has been functioning ineffectively.

Gaps in implementation

The gaps in its implementation could be studied at two levels – the executive and the judiciary. The National Human Rights Commission (NHRC) noted in its 2002 report: “Under-reporting is a very common phenomenon and the police resort to various machinations to discourage S.C./S.T. [persons] from registering their cases, to dilute the seriousness of the violence, to shield the accused persons from arrests and prosecution.”

A study done by National Dalit Movement for Justice (NDMJ), part of the National Campaign for Dalit Human Rights (NCDHR), showed that between 1992 and 2007 only 33 per cent of the atrocity cases were registered under the S.C./S.T. Act. The majority of the cases were registered under IPC sections and 1 per cent under the PCRA. It also showed that the conviction rate of cases under the S.C./S.T. Act was just 3.3 per cent for the country as a whole.

The figures at the level of the judiciary are equally pathetic. Between 1992 and 2007, as many as 80 per cent of the cases heard by the special courts (created under Section 14 of the Act) were not registered under the Act. In 95.1 per cent of the cases charge sheets had not been filed. The monitoring advisories set up in States on an ad hoc basis by the Ministry of Social Justice & Empowerment (MSJE) and the Ministry of Home Affairs (MHA) noted that in many cases the police wilfully neglected the S.C./S.T. Act and did not register first information reports (FIRs). Among the recommendations made were the setting up of special police stations and the launching of awareness campaigns about the Act.

The Ahmedabad-based Council for Social Justice (CSJ) has collected documents of 400 cases pertaining to 2004 filed under the S.C./S.T. Act in Gujarat. There are some startling revelations in them. Despite Section 18 of the Act restricting anticipatory bail in atrocity cases, anticipatory bail had been granted in 320 of the 400 cases.

Valjibhai Patel, secretary CSJ, told Frontline: “Rule 4(1) of the Act says that there should be two panels of advocates in atrocity cases – a state-appointed public prosecutor and a panel created by the district head. In most of the cases, we see no such panels. The Act states that an officer below the rank of DSP [Deputy Superintendent of Police] cannot investigate the case. Many of the accused have been acquitted by courts just because the case was investigated by officers below the rank of DSP. I have seen in Gujarat rape cases of Dalits being sent to Lok Adalats meant for only compoundable offences.”

Plight of women

Dalit women face the worst atrocities as both women and Dalits. A seminal study conducted by the NCDHR (“Dalit Women Speak Out”, 2006) enumerating the experiences of 500 Dalit women from Andhra Pradesh, Bihar, Tamil Nadu and Uttar Pradesh presents a shocking picture of the conditions they live in. The study records the violence – physical, sexual and mental – inflicted on Dalit women. The study reinforces calls for comprehensive preventive measures to be put in place to eradicate caste discrimination and violence against Dalit women, in conjunction with measures to help Dalit women achieve their rights.

Valjibhai Patel says that though the Act mentions punitive measures against negligence, to date not a single official in India has been punished despite serious violations of the Act all over the country. He says the judiciary should also be made accountable, not just the police and the district administration. “There are many cases of atrocities where the accused has been punished under the IPC but has been acquitted under the S.C./S.T. Act. In Gujarat, one of the professors who raped his Dalit student got life imprisonment but was acquitted under the S.C./S.T. Act. The Khairlanji case is a big example where the people now serving the death penalty were acquitted under the S.C./S.T. Act. How is this possible? This means there is some problem in investigation and pursuance of the Act,” he says. The CSJ has filed a petition in the Supreme Court regarding the violation of the Act, the first hearing of which will be on December 3.

Budget and policy

The MJSE is responsible for the implementation of the S.C./S.T. Act. To implement the Act effectively, the MSJE has to provide for special courts for the trial of offences and for the relief and rehabilitation of victims of such offences. The Ministry provides financial resources for the implementation of the Act through the Special Central Assistance (SCA) from the Union government, which is 50 per cent of the total expenditure of the States and the total expenditure of the Union Territories.

However, the allocation of funds every year under the SCA has seen a steady decline. Under the Act taluk- and mandal-level officers are responsible for disbursing compensation and this work has to be monitored by the District Magistrate/Collector and the district monitoring and vigilance committee. Separate funds have to be given to police stations/courts towards travelling allowance/dearness allowance (T.A./D.A.) of victims and witnesses on FIR investigation and it has to be monitored by the Superintendent of Police (S.P.) and the District Judge (D.J.). There is also clear direction in the Act that arrangements should be made for maintenance expenses and reimbursement of medical costs of victims of atrocity.

In 2008, the Dalit Arthik Adhikar Andolan, also a part of the NCDHR, looked into the actual budget for the S.C./S.T. Act in each State and estimated the amount every State actually needed for its proper implementation. Its calculations have been done on the basis of the number of compensation cases in each State, the average cost of running the present number of special courts and special police stations, and relief and rehabilitation measures for victims specified in the Act.

The results in all the States reveal that the actual budget allocated for the Act is much less than what is required. This is despite the fact that both the Central government and the State governments share the amount made available for the programme under the special component plan. Uttar Pradesh ranks the highest in terms of this deficit, and its figure stands at a staggering Rs.1,640 crore. Rajasthan, also a State with one of the highest rates of caste crimes, is second with Rs.1,157 crore, and Bihar follows with Rs.1,085 crore.

According to the actual budget allocated, as shown in the MJSE annual report, Uttar Pradesh, since 2007, ranks the highest in the allocation of funds for the Act, with around Rs.950 crore, followed closely by Andhra Pradesh and Karnataka. Among the big States, the lowest allocation is in Bihar, with just Rs.27 crore. Chhattisgarh’s allocation is Rs.40 crore. In Haryana, which has one of the largest numbers of caste crimes, the allocation is only Rs.60 crore. In the South, Tamil Nadu ranks the lowest, granting around Rs.235 crore.

An NCDHR analysis of the qualitative investments of the Central government shows that in this year’s Budget the amount spent on wage labour, school education, basic health, shelter, nutrition and primary necessaries involving Dalits is 62.44 per cent of the total special assistance funds. In sectors where the upper classes dominate, such as higher education, entrepreneurial development, and land and asset building, the allocation is 37.56 per cent. State budgets present a similar trend. Most of the funds still go to the traditional occupation of Dalits, such as cleaning, agricultural labour, leather works, and so on, which is in contrast to the theme of the SCP of systematic empowerment of Dalits in all sectors of production. It therefore does not surprise when the S.C./S.T. Act, a tool for legal empowerment of Dalits, lacks funds for its implementation.

The aggressive pursuit of neoliberal economic policies by governments at the Centre and in many States over the past decade has also resulted in an increase in atrocities against the S.Cs and the S.Ts. Ironically, even the Uttar Pradesh government is not free from such ventures. The government’s ambitious 1,047-kilometre-long Ganga Expressway project, connecting Greater Noida near Delhi and Ballia in eastern Uttar Pradesh, was expected to acquire 64,000 hectares of land, 70 per cent of which is agricultural land. A number of observers and social analysts pointed out that this acquisition would militate against the basic livelihood of a large section of Dalits who were into share-cropping with upper-caste, land-owning farmers.

According to NCRB data since 2005, Uttar Pradesh ranks the highest in the number of cases of caste atrocities, followed closely by Madhya Pradesh, Rajasthan, Andhra Pradesh, Bihar and Gujarat. “Acts like these empower and help organise Dalits. With greater awareness about the Act, we have seen a rise in caste atrocities every year,” said Sirivella Prasad of the NDMJ.

The trend clearly shows that caste atrocities have increased with greater social and economic mobility of the S.Cs and the S.Ts which disrupts the exploitative status quo of a feudal society.

Many activists note that atrocity cases happen when Dalits try to avail themselves of legal resources; assert their right over land, water, and livelihood; assert their right to choose their occupation; attempt to participate in the cultural life of the community; assert their right to vote; and are victimised to satisfy the superstitions of dominant castes (witchcraft, human sacrifice). With respect to the S.Ts, activists say most of the atrocities happen when they try to organise themselves politically against the combined exploitation of government officials and industrial goons in the hinterland.

However, the Act is not clear about the rules with respect to social and economic boycott of the S.Cs and the S.Ts and there is an ongoing advocacy campaign among Dalit groups to seek amendments to certain provisions of the Act to make it stronger. Said Colin Gonsalves of Human Rights Law Network: “Unless the institutional caste bias is systematically done away with at the policy level and proper action is taken against negligent officials, violations will continue to happen. The legal system has failed the S.Cs and the S.Ts. The Act is a clear instance of wonderful legislation but useless implementation. Our judiciary needs at least 15 per cent reservation for the S.Cs right from the lower courts to the Supreme Court. The Rajasthan High Court has not had a single Dalit judge since Independence – absurd for a State that ranks very high in caste crimes.”

To put it simply, caste is a combined social system of occupation, endogamy, culture, social class and political power, which has historically been exploitative for Dalits and Adivasis. In this context, the S.C./S.T. Act and its status echo Ambedkar’s words: “This condition obtains even where there is no slavery in the legal sense. It is found where, as in caste system, some persons are forced to carry on the prescribed callings which are not their choice.”








Armed Forces Tribunal Bench starts work

Express News Service

 Posted: Tuesday , Nov 17, 2009 at 0225 hrs Chandigarh:

The Armed Forces Tribunal (AFT), Chandigarh, bench started functioning from Monday. Presently, one bench out of the total three-bench court is operating which comprises of one judicial and one administrative member. The Bench took up a pension case pertaining to 2008 on its first day. No case has been transferred from the other courts so far.

The present members at the Chandigarh Bench include Justice Ghanshyam Prasad, former judge of Patna High Court Lieutenant General A S Bahia, former Director General Military Operations and Quarter Master General. The other two administrative members include Lieutenant General H S Panag, former GOC-in-C of Northern and Central Command and Lieutenant General N S Brar, former Deputy Chief of Integrated Defence Staff. Two more retired High Court Judges will be appointed in due course. Its geographic jurisdiction will extend to Punjab, Haryana, Himachal Pradesh, Jammu and Kashmir and Chandigarh.

Lieutenant General Bahia said it would take some weeks for the AFT at Chandigarh to function in its full capacity as the other members would be joining shortly.

The Tribunal has original jurisdiction over complaints and disputes regarding all service matters as also appellate jurisdiction over appeals arising out of verdicts of Court Martial. Retired personnel and their heirs dependents and successors can have access to the Tribunal with regard to all service matters.

The principal bench at Delhi became functional an August 10 this year and subsequently regional benches at Chennai, Jaipur and Lucknow were inaugurated recently. The remaining 15 courts under the Tribunal are one regional bench each at Jaipur, Mumbai, Chennai, Kochi, Kolkata and Gauhati which would be inaugurated in the coming months.

To fulfil the long standing need of dispensing speedy justice to the Armed Forces personnel, the Parliament had passed the bill to establish the Armed Forces Tribunal in July 2007. The AFT Act 2007 came into effect on June 15, 2008 and the tribunal was inaugurated by the President, Pratibha Patil on August 8 this year.









Launching the Bangalore Chapter of the All India Men’s Welfare Association (AIMWA)

Sunday, November 15, 2009

All India Men’s Welfare Association (AIMWA) was launched in Hyderabad on the 11th October 2009 to work in the area of elimination of all kinds of discrimination against boys and men. Today, this press conference is being conducted to launch the Bangalore Chapter of the same.

Why Men’s Welfare:

Ask someone about the problems of women and a list would emerge that would never seem to end. Ask about men’s problems and all one sees is blank faces. Does that mean that men do not have any problems? Or is it that there is no awareness for the same, as mirrored in the statement – “Absence of evidence is not an evidence of absence.”?

  1. If we look back, in the last 62 years of Indian Independence not a single rupee has ever been allocated for men’s welfare from the Union Budget.
  2. Not a single constitutional or quasi-constitutional body ever been formed to study men’s issues.
  3. Not a single study otherwise also ever been conducted targeted to study men’s issues.
  4. Not a single scheme ever been envisaged for men’s welfare.

Hence, in the backdrop of this emptiness, the Government and the society have absolutely no Locus-Standi to deny accepting men’s issues or avoid addressing them. And it is this emptiness which has led to the formation of AIMWA, to study men’s issues and demand for a National Commission for Men and Men’s Welfare Ministry.

Men and their identity:

Today, expectations from men have skyrocketed and acceptance levels for them have nosedived. In fact, there is no limitation to expectations from men and no acceptance of their limitations.

Today men are expected to,

  1. Take care of extended families of parents, siblings, wife, in-laws and provide for them,
  2. Take huge financial burdens and risks by undertaking various kinds of loans like home loan, car loan, education loan for siblings to name a few.
  3. Undertake the primary financial responsibility of the house even if the wife is well-qualified, well-earning and capable to share the financial load.
  4. Sponsor the education of young in-laws and their expensive visas and foreign degrees.
  5. Bow down before their wives or face Legal Terrorism viz. misuse of Section 498A and Domestic Violence Act.

And not only for the above, men have been expected to undertake the most risky and laborious jobs since time immemorial and also have been expected to be the de-facto PROTECTOR as well. It is not unusual to expect a 10 years old male child to escort and protect 30 years old able-bodied female aunty and it is also not unusual to expect a young boy to take charge when some monkey enters a household in rural areas.

However, at the same time, the de-facto protector is left unprotected with no protection available to him. Additionally, men are emotionally castrated right from the age of 6 as they are discouraged from expressing their pains and feelings. Dialogues like, “Do not cry like a girl”, “Be a man” are quite normal for the society to a 6 year old boy whose psyche and identity is just evolving. And the impact of these statements is so deep that the boy develops a fear of self-expression and remains numb to abuse the rest of his life.

As a result, men are finding emotional confrontations extremely painful when they grow up and most men contemplate suicidal tendencies during emotional turmoil in their relationship and a reasonable percentage of them actually commit suicide. The same is corroborated by suicide statistics,

  • 2005: 52583 married men committed suicide vis-à-vis 28188 married women.
  • 2006: 55452 married men committed suicide vis-à-vis 29869 married women.
  • 2007: 57593 married men committed suicide vis-à-vis 30064 married women.

Other than these, men face domestic violence from their wives and in-laws in the form of physical, emotional, mental, verbal and economic abuse. Added to this neither the society (including psychologists and marriage counselors) provides these men with any communication channel nor does the Government offer any legal relief.

Some other forms of harassment and discrimination faced by men,

  1. Men pay more taxes than women at the same salary level.
  2. Men are provided no protection against sexual harassment at workplace and against rape.
  3. Men do not have the choice of being a domestic engineer, social engineer or into creative paths. Irrespective of his likes and willingness a man is forced to don the role of the breadwinner for the family or else face a social death.
  4. Men are not accepted by the society the way they are; as human beings.
  5. Men are not provided with a communication channel – a channel that listens to them without invalidating their feelings or justifying their problems.
  6. No schemes are being furthered either by the Government or eminent social celebrities for boys the way they are happening for girls. This has led to more boys dropping out of school as per various media reports. Ultimately the boys are left under-trained to satiate the expectations as they grow up to be men and are developing resenting feelings towards the society which is leading to a lot of socio-legal problems.
  7. There is no concept of MEN’s RIGHTS, only RESPONSIBILITIES and DUTIES are there in store for them.

National Commission for Women – The Enemy in the veil:

Very recently, in the case of alleged complaint of sexual harassment by an airhostess of Air India, it was clearly observed that the air-hostess had violated the rules of Air India and entered the cockpit when she was not supposed to and later on, she filed a false complaint of sexual harassment against the innocent pilots. Though innocent, the pilots were forced to take a bail, following an arrest, due to adverse media hype given to the case and unethical handling of the issue by the National Commission for Women (NCW) – the hotbed of male hatred.

Also, on the 12th of October 2009, the NCW proposed radical and vicious recommendations in Section 125 CrPC (maintenance for wife, children and parents) asking for “maintenance to adulterous wives” and forcing man to pay maintenance “irrespective of his sufficient means”.

Despite the fact that in rape and dowry cases, the testimony of the complainant is given a very high priority the NCW demands for death penalty in the two cases. On the other hand, at the same time the NCW is not ready to address the issue of Domestic Violence faced by unmarried daughters from their parents and by elderly mothers-in-law from their daughters-in-law.

It is very clear that under the barb and paradoxical veil of “Women Empowerment”, the NCW is perpetrating male-hatred and is working like a “National Commission against Men” instead of “National Commission for Women”.

On the occasion of 19th November the INTERNATIONAL MEN’s DAYn AIMWA places the following of its demands from the Government and the society:

  1. Form National Commission for Men to study issues of men and provide the Government with recommendations for Men’s welfare.
  2. Institute Men’s Welfare Ministry that will implement the recommendations of the National Commission for Men on behalf of the Government.
  3. Abolish all anti-male gender biased laws.
  4. Close down the National Commission for Women.
  5. Rationalize the tax provisions to make them gender neutral.
  6. Form welfare schemes for boys and girls unilaterally.
  7. Form an ombudsman to regulate the anti-male quotient in media, television and films.
  8. Allow single adult men to adopt children before the age of 30.
  9. Do not force men to don the role of the breadwinner against their wish and give them a choice about their life.
  10. Address health issues of men like prostate cancer, short life expectancy, high suicide rates, etc with seriousness.
  11. Government should urge the private sector to come up with Health Products specifically targeted to diseases affecting men in large numbers.
  12. The World Economic Forum should start recognizing men as human beings as well as study and publish Gender Index of Men besides that for women alone.

AIMWA aims to work for men’s welfare and urge the Government and the society to take serious note of the problems of men.

All India Men’s Welfare Association, Bangalore

Save India Family Foundation








Chained and humiliated,+SHRC&SectionName=cxWvYpmNp4fBHAeKn3LcnQ==

 R Guhambika

First Published : 15 Nov 2009 10:30:00 AM IST

Last Updated : 14 Nov 2009 01:18:42 PM IST


Over these six years, the journey to redeem their dignity was turning out to be incr­easingly ard­uous for them. So much so, all but one of the nine persons fell by the wayside — it’s just one man holding his ground and saying ‘no’ to the sellout.

It all began in the summer of 2003 when the police “deta­ined, stripped, shackled, abused and tortured” seven men and two women from a central Tamil Nadu village. They have since been knocking at the door of the State Human Rights Commission (SHRC). All this, following a brutal crime in their rural Vittukatti off Tiruvarur.

Memories of that triple murder and the Khaki terror it entailed still cause its residents to shudder. The slain victims were Padmavathy (50), her unmarried daughter Jeeva and two-year-old grandson Brahadeeswaran. It was murder for gain; the killer had decamped with cash, jewellery and household articles after committing the crime.

The case made headlines. That the victims were Dalits caused a political uproar, even as the community comprises 80 per cent of the hamlet’s population. Unlike other Dalit villages, Vittukatti has a progressive profile; its sons — proud villagers note — include IAS/IPS officers, doctors, advocates and engineers.

Not surprisingly, the vociferous village youth, backed by the CPI(M), launched agitations demanding a probe into the murders. A cornered government took the police to task, the backlash caught the villagers unawares. “About 30 police teams swooped down upon us,” an elderly man recalls in a hushed tone.

The police picked up nine ‘suspects’, two of them women: K Jayalakshmi and G Tamilselvi. Both the women and the men — K Bhaskaran, P Sasikumar, Mohan, N Natarajan, Vedanayagam, Elango and Ravi — were taken to Thiruthuraipoondi police station on May 10. And from there, to an isolated interrogation chamber at Thirukalaru. There they were stripped naked and shackled.

Recalls Bhaskaran (45), a graduate: “After every session, the cops would listen to music, then come back and start beating us all over again.” Terrorised, they signed blank papers, but the ordeal only got worse — they were “forced to perform oral sex” on each other. “A senior policeman urinated on us. On May 13, another officer threatened to bump us off in an ‘encounter’ the next day if we didn’t confess to the crime.”

By evening that day, news broke about the arrest of the killer, Senthil, a relative of the victims. “Yet our release was nowhere in sight. In fact, police stepped up the torture,” says Bhaskaran. On May 15, they were let off.

All the nine victims of custodial torture decided to approach the SHRC for justice. A human rights NGO took up the issue. “They were in a bad state, with skin and flesh hanging down from their bruised bodies,”

K Kalidoss, regional legal officer of People’s Watch,  recalls the midnight ordeal to transport the victims to Chennai without the police’s knowledge. The victims were paraded before the commission. Its chairperson, Justice S Sambandam, was “visibly moved” and asked them to file individual complaints against the 19 police personnel, including a DSP and ADSP.

Six years later, it is far from clear whether the case will be decided on merit, as all victims except one are now travelling down the road to compromise. Clearly, pressure tactics have worked and a lot of money has exchanged hands. So what went wrong?

“Six years is a long time, and puts the victims in a pathetic condition,” contends Henry Tiphagne, director of People’s Watch. “A prolonged inquiry weakens anybody’s will to keep fighting and makes them prey to the respondents — in this case the police,” he says. Rights activists blame the “culture of courts” prevailing in the SHRCs and the National Human Rights Commission for the inordinate delay. They function like regular courts and follow elaborate judi­cial procedures; there is no time-bound investigation. “This case took three years for the commission to finish its enq­uiry with the victims alone,” Tiphagne points out.

Rights groups also note that the SHRC’s investigation wing, headed by an IG, has men drawn from the regular police force. They wonder how police officers can be used to conduct a human-rights violation probe. A rights violation investigation, they stress, is different from a criminal probe. It needs “a lot of sensitivity and understanding”.

Given that much of the probe depends on the credibility and capacity of the police officers, it is the failure to choose the right men that leads to cover-ups and bargaining, they feel. “Only two years ago, an SP in Perambalur (of central Tamil Nadu) was appointed the SHRC’s investigation officer when he had been pulled up by the NHRC,” says Tiphagne. Add to that is lack of transparency in appo­intments, accountability and efficiency.

The SHRC, anyway, is getting increased number of complaints. Sources in the commission say it’s 9,000 so far year. It was 12,000 last year, and 10,000 in 2007.

The NGOs stress the need for development of SHRC staff cadre, and vibrant interaction and sharing of reso­urces with rights groups. “The International Coordination Committee of national human rights commissions is all set to meet next year. And there is the possibility that India may lose its grade A status,” cautions Tiphagne.

Amid the din, Vittukatti villager Bhaskaran continues his lone battle and awaits justice at the hands of the SHRC.










Armed Forces Tribunal to overcome HC limitations

Sunday, November 15, 2009

Chandigarh, November 14
Provisions of the recently set up Armed Forces Tribunal (AFT) have enabled it to overcome certain limitations imposed by the Constitution on the powers of high courts. This widens the ambit of judicial review by the AFT and its ability to grant relief to aggrieved military personnel.

Speaking at the inauguration of the Chandigarh Bench here today, AFT chairman Justice AK Mathur said the AFT would have the power to review trial evidence, something that the high courts cannot do under provisions of Article 226 of the Constitution.

Justice Mathur said more powers have been granted to the AFT vis-à-vis similar military tribunals that have been functioning in other countries for a long time. While many foreign military tribunals are primarily judicial bodies, the AFT here has original jurisdiction in regard to service matters as well as appellate jurisdiction over verdicts delivered by military courts.

The Chandigarh Bench, which would have jurisdiction over Punjab, Haryana, Himachal Pradesh, Jammu and Kashmir and Chandigarh, would begin functioning from its interim location at Chandigarh from November 16. About 3,500 cases pending before the high courts of these states would be transferred to this bench. It has already received about 30 such cases.

In his keynote address, Chief Justice of the Punjab and Haryana High Court, Justice TS Thakur, said earlier the courts were hesitant to interfere in military matters. The perception changed later following a SC ruling that on joining the services individuals do not cease to be citizens of the country and were fully entitled to seek justice. Any injustice done to them that was not redressed was a calamity in itself, he added. Judicial intervention by the courts was justified, leading to a spate of service cases.

Pointing out that establishing tribunals was a way to ensure speedy justice and cut down the mammoth pendency of cases at all levels, he said the criticism of setting up the AFT received from some quarters was ill-found.Justice Ghanshyam Prashad, the judicial member of the Chandigarh Bench, said despite constitutional provisions, it had taken the government 25 years to promulgate the AFT. Listing out the powers and functions of the AFT, he said the appeal to its orders lies only with the Supreme Court.

Posted by HARDCORE SOLDIER at Sunday, November 15, 2009










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