EDITORIAL

Plebiscite in Kashmir?

The Agra summit has once again brought into focus the Kashmir issue. Kashmir has been a contentious issue between these two neighbours since their independence. As soon as the British left India, Pakistan tried to annex Kashmir and India committed the blunder of taking the problem to the United Nations. After 1989, Pakistan once again raised its stakes in Kashmir. It also presented it as a nuclear flash......more

DISMAL POWER SCENARIO

The entire staff of the Power Development Department (PDD), including engineers and employees went on a lightning strike on Wednesday to protest against the attack on a junior engineer. An ugly situation was averted by the timely intervention of..........more

Sattar's hidden hand;
not Swaraj's

Men, Matters, Memories

By M L Kotru
Did someone really sabotage the Vajpayee-Musharraf summit? I have this great conspiracy theorist who will at the drop of his hat....
more

And, where was the
'Indian Stand' at Agra ?.......

Yours Randomly

By Dr. R L Bhat
India does have a dispute with Pakistan. The dispute involves the illegal Pak occupation of 38% -- a hefty 83,000 .......
more

Global: Philanthropy
goes female

By Elayne Clift
Women everywhere are changing the face of philanthropic giving. Their collective vision of what it means to be a philanthropist ....
more

When laws wither,
society wilts

By Aditya Nath Dar
How did Ms Jayalalitha win a landslide victory? Why is Mr Laloo Yadav still ruling Bihar, notwithstanding......more

EDITORIAL

Plebiscite in Kashmir?

The Agra summit has once again brought into focus the Kashmir issue. Kashmir has been a contentious issue between these two neighbours since their independence. As soon as the British left India, Pakistan tried to annex Kashmir and India committed the blunder of taking the problem to the United Nations. After 1989, Pakistan once again raised its stakes in Kashmir. It also presented it as a nuclear flash point before the international community. Pakistan urges India to hold plebiscite in Kashmir, since it assumes that the Muslim majority population in the Valley, will elicit a result in its favour. It tries to mislead the world by saying that India has denied the Kashmiris the right to self-determination. The separatist Hurriyat Conference, the Master's voice, parrots the demand for referendum and nauseum. Both, India and Pakistan expectedly adopting unyielding postures at the Agra. They know very well that any concession by them would lead to strong domestic opposition in their respective countries. For India the issue to discuss was Pakistan occupied Kashmir (PoK) and cross-border terrorism financed and engineered by the hostile neighbour. For Pakistan, it was, and is, the annexation of Kashmir in pursuance of its unfinished agenda of partition. Inexorably linked with it is the demand for ascertaining the wishes of Kashmiris through a plebiscite. But can plebiscite solve the problem even if India gives in to the Pakistani demand? The belief that a short-cut route through a plebiscite would provide a solution to a problem as intractable as that of Kashmir, is particularly misplaced. Plebiscites the word over have a poor record as peace-building mechanisms in conflict situations. It happened in the Bosnia referendum. In 1994, large-scale massacres in Rawindi took place after a peace agreement was concluded. The examples of Sierre Leone, Haiti and Angola can be cited to further strengthen the argument against plebiscite. In fact, most of the time referendums create a disgruntled party. This group immediately intensifies its action. This was the case with Angola where the UNITA faction started immediate hostilities. Similarly pro-Indonesia militia in East Timor resorted to violence because it was not agreeable to the results of the consultations. Most of the time these communities are divided either on the basis of race, religion, language or cultural identities. The ballot papers used in a referendum cannot solve problems that have an emotional overview. No wonder they have failed to achieve peace in most places. The Balkans continue to burn. In East Timor, the militia supporting Indonesia is waiting for the opportunity to strike again. In Northern Ireland a thick wall separates Protestants and Catholics. The history of referendum held across these places clearly negate the role of plebiscite as a solution to the Kashmir issue. It could probably worsen the situation. No party will accept a loss in a referendum. If Pakistan loses, there is no guarantee that it will not further intensify the surrogate conflict waged by it against the Indian State. It will try to send more mercenaries, jehadis and other terrorists to Kashmir. Since it does not allow PoK Kashmiris to choose secession from Pakistan, how can one expect it to accept the loss of whole Kashmir to India. On the hand, if India loses, the outcome will not be accepted by the minority population living in Jammu and Kashmir, since they will see all their rights, and their very existence, threatened. They may also face the possibility of being driven out of the State as was done with the Kashmiri Pandits in the Valley. This will lead to a mass exodus and grave violations of human rights. It will be difficult for India to answer its own people. The scenes witnessed during the partition may well be revived. It will have grave repurcussions for the multi-ethnic pluralistic India State. Whatever the outome, a plebiscite in Kashmir retains the grim possibility of creating chaos. Hence it would be advisable for both India and Pakistan to look for a long-term solution which is agreeable to both parties and which is also face to the people of the State. Unless all concerned parties accept the solution as just, no lasting peace can be achieved.

DISMAL POWER SCENARIO

The entire staff of the Power Development Department (PDD), including engineers and employees went on a lightning strike on Wednesday to protest against the attack on a junior engineer. An ugly situation was averted by the timely intervention of the Power Minister, Surjit Singh Salathia, and other functionaries, who assured protection to the PDD employees against violent attacks by members of the public. Earlier on July 6, violent mobs attacked the offices of the Executive Engineer and the Assistant Executive Engineer in posh residential colony of Gandhi Nagar to give vent to their pent-up rage over the failure of the PDD to ensure regular supply of power in the hot and humid atmosphere. The colony is inhabited by the upper crust of Jammu's elite, not given to protest and violent demonstration. Why then this sudden outburst of anger? The violence, condemnable as it is, must make the PDD authorities to do a little bit of soul-searching for finding out the cause of violent behaviour of the otherwise peace-loving citizens. The attacks of PDD staff have to be viewed with utmost seriousness for they were indicative of the fact that the patience of the common man was fast running out. Gandhi Nagar, Trikuta Nagar, like various localities in the walled city, have been virtues to the long unscheduled power cuts for a long time now. The colonies have remained without power for more than 36 hours at a stretch on various occasions during the last six weeks. Residents perforce have to sweat out without fans, water-coolers, air conditioners and refrigerators. Their misery is compounded by the fact that the invertors too fail to deliver because long interruptions make it impossible to recharge the batteries. The callousness and apathy of the PDD towards the miserable plight of the suffering public is apparent from the fact that no urgency is displayed in rectifying the defects and restoring power supply expeditiously. The PDD engineers from the Chief Engineer down to the Junior Engineers become incommunicado the moment the system collapses. They hang up their telephone receivers so that the angry consumers can't reach them. While the regular scheduled power cuts are perhaps warranted by poor generation at the source, the long unscheduled power cuts are the result of poor maintenance of equipment and abnormally high rate of burn-outs of sub-standard transformers. Bulk of the old, decrepit transformers need to be replaced. There is also urgent need to have standby arrangements. The facilities for repairs of burnt-out transformers, in PDD's workshops are totally inadequate and private firms are loath to undertake the repairs because the department has earned the reputation of being a bad paymaster. The Chief Engineer and the other functionaries of the PDD express their helplessness to improve the power scenario. "We have no funds to purchase new transformers or to get the defective units repaired," is the refrain of these worthies. The latest incidents of violent attacks on PDD staff and offices should serve as an eye-opener to the powers that be. Further delay in moving with alacrity to redress the grievances of the consumers could prove suicidal. It is time the Government watched out for the warning signals and took quick remedial measures before it has serious law and order problem confronting it.

Sattar's hidden hand; not Swaraj's
Men, Matters, Memories

By M L Kotru

Did someone really sabotage the Vajpayee-Musharraf summit? I have this great conspiracy theorist who will at the drop of his hat give you weird theories to prove there is a hidden hand behind anything happening in the subcontinent. Like Gen Pervez Musharraf's Press advisor, Maj. Gen Rashid Qureshi, even my friend believes that there was a hidden hand that caused the Agra summit to produce no results. It's another matter that my man usually sees the Chinese hand behind every such move.

I don't know whose hand Qureshi had in his mind when he spoke of it soon after the summit collapsed. He would, of course, like one to believe that it was the Indian Minister for Information and Broadcasting, Ms Sushma Swaraj who caused the problem with the innocent TV sound byte. Sushma Swaraj went out of her way to clear the air after that, but according to the Pakistanis, it was her hand that did the tric. If you ask me, Sushma Swaraj may have erred by agreeing to give that mini byte to the TV network but to accuse her of sabotaging the summit would be extremely graceless and inappropriate.

It would appear to me that the one to contribute much to the debacle of the summit was none other than Mr Abdul Sattar, the Pakistan Foreign Minister, a known India - baiter, who passed on that note to his President warning him of Indian duplicity; as evidence he cited Sushma Swaraj's short interview in which she had mentioned some of the issues discussed by Musharraf and Vajpayee at their first meeting without listing Kashmir among these. Sushma Swaraj was not present at the talks at the time and obviously she did not know what all had transpired. All she said was that the talks were moving in the right direction, listing three or four issues among others. You may fault her for having ventures into an area where she should not have but tell me of any politician willing to resist the temptation to be seen on TV (I&B Ministers included), particularly when events of great import are taking place around him or her. And we have Foreign Minister Jaswant Singh's word for it, that there was nothing improper about the I&B Minister's brief interlude. And in fairness to the I&B Minister she went to great lengths to put the record straight once the Pakistani reaction to her observation became known.

So far as Sattar is concerned the Swaraj faux pas was just the stuff he needed. The Indians Minister's statement the Indians were upto their tricks again. The Indian Minister's statement would send wrong signals home; that Parvez Musharraf had gone soft on Kashmir. Sushma's explanation that Kashmir in any case was one of the major issues up for discussion did not cut much ice with Sattar. He ensured that the Sushma clip was promptly played on PTV. With this Sattar had scored his first major victory in derailing the summit. Gen. Musharraf who admits his lack of diplomatic skills, bit the Sattar line hook, line and sinker. That was the turning point. Soon thereafter came the request from the Pakistan side for a meeting between President Musharraf and senior Indian journalists. The Indians, as Foreign Minister Jaswant Singh has said, readily agreed and offered help. Again in Jaswant Singh's words it was supposed to have been an off-the-record background briefing by Musharraf. Which, as any journalist will tell you, is meant to be used as background only. The Pakistan side however decided to have the meeting taped and relayed not only on PTV but it was Pervez Musharraf putting across his views as bluntly as one a soldier can. The General in fact said as much. In the event, the interaction with the Indian media men became a forum for Musharraf to debunk the Indian position on some of the more intractable issues.

He described the Jihadis operating in the Valley as freedom fighters, likened the scessionist movement to the one being waged by the Palestinians and even chose to refresh his audience's memory about the Bangladesh war.

If Sushma Swaraj had at all queered the pitch, Musharraf, flanked by Sattar and the Pakistan Foreign Secretary, made sure that little room was left for operation salvage. The Musharraf performance and the wide publicity assured to it courtesy PTV and the Star News Channel narrowed down the Indian options considerably.

The consequence was that the Indians had to counter it by releasing the Prime Minister's opening remarks at the first formal meeting of the two delegations. Obviously this was nothing else but a reiteration of the stated Indian position. There is nothing unusual about that. At formal meetings it is the norm to start by narrating such positions. Given the unusual nature of the Vajpayee-Musharraf summit, with no fixed agenda, it became inevitable that the Prime Minister should air Indian concerns on various issues. And mind you, this presentation need not have been publicised at all but for the fact that Pakistan had taken the extraordinary recourse to having a background briefing telecast in full. If Musharraf and his advisers felt that such an exposure was necessary to keep the home audience happy and reassured, Vajpayee too found himself in the unenviable position of being forced to make his presentation public.

The upshot was that old doubts and suspicions took from the atmosphere of trust which Vajpayee and Gen Musharraf had been able to create during their first one-to-one meeting, lasting over one and half hours as against the 15 minutes originally earmarked for it. Much as they did try to rescue the summit on the second day, the walls of suspicion had only to risen higher. A draft statement/declaration, prepared by the officials overnight, flitted between the two hotels, where Vajpayee and Musharraf were staying, a few times but by now the usual war of semantics was raging. Centrality of the Kashmir issue and cross-border terrorism haunted the two hotels like so many ghosts. Drop cross-border and retain terrorism, said the Indians. No said the Pakistanis. Use ending violence instead, said the Indians. No, said the Pakistanis. Forget centrality, said the Indians. What's left then, countered the Pakistanis. That was the end of the joint statement/declaration -- and of the summit as well. Never mind, the eleventh - hour meeting that followed between Vajpayee and Musharraf just before the latter left for home. The summit had well and truly ended, a victory for the time being for the Pakistani hawks. For Prime Minister Vajpayee the failure of the summit as well. Never mind, the eleventh - hour meeting that followed between Vajpayee and Musharraf just before the latter left for home. The summit had well and truly ended, a victory for the time being for the Pakistani hawks. For Prime Minister Vajpayee the failure of the summit must remain a matter of regret. In Musharraf's words, the "very bold and statesmanlike step of the Indian Prime Minister in inviting me to the meeting", must now remain a mere footnote in the history of Indo-Pak relations.

Fortunately for the two neighbours, Jaswant Singh has said that Vajpayee's acceptance of Musharraf's invitation to visit Pakistan stands accepted, which leaves the door ajar. That's if the hawks in Pakistan do not in the meantime devise ways of baging it shut. The two leaders will have two other opportunities to meet - should they wish to -- at New York during the UN General Assembly session and at the SAARC summit in Kathmandu. But then I wish someone tells the two to meet away from the glare of constant media attention. You can't hold summit via TV cameras or through newspaper columns.

In fairness to Sattar I must admit though that at his first Press conference on his return home, he disagreed with those who dubbed the Agra summit a failure. According to him the two delegations had made "very substantial progress" in converting the vision of the two leaders into words in declaration but for a last minute hitch. Unusually for him, he felt that the declaration might well have been finalised but for the shortness of time. "Fruition of our hopes" may have been delayed but "we are hopeful that there will be an early opportunity for the two leaders to meet soon again and hopefully lead to an agreement." But then no Sattar story would be complete without that twist in the tail; there was no cross-border terrorism-the border in that case being the internatioanl border. If the reference is to cross -- LoC terrorism that is a different story. (Which is Sattarese means it's indigenous terrorism).

And, where was the 'Indian Stand' at Agra ?.......
Yours Randomly

By Dr. R L Bhat

India does have a dispute with Pakistan. The dispute involves the illegal Pak occupation of 38% -- a hefty 83,000 square kilometers-- of the territories of the erstwhile Jammu and Kashmir State that acceded in full to India in 1947. Leaving out Ladakh, Pakistan occupies 2/3rd of the landmass of the state while India is in possession of Just 1/3rd! This area referred to as the POK is legally, rightfully Indian territory that has been served out by force. The 1993 resolution of the Parliament reiterates the will of the Indian people to free these territories from the Pak occupation. Twenty-five of the assembly seats in the J&K legislature have remained vacant, for the past fifty years of its existence, waiting to be filled by the representative from these areas.

It is this dispute, which India took to the UN Security Council in 1947. Yet one searched in vain in the deliberations at Agra for an assertion of this plain Indian position. The Indian side spoke of fishermen and smugglers, POWs and terrorists, but not of thousands miles of land, and lakhs of people living upon it, that Pakistan has held as a conquered possession-and used all along as mali-gani-mat, the spoils of the 1947 war. (A related dispute, subsumed thereunder is that of Pakistan having bartered (sold for material gain!) nearly five thousand square kilometers of this territory to China). Has India given up its stake to this part of the state and national territory? The issue of the cross-border terrorism may have got the Pakistans' goose. The Pak president may have been tongue-tied over a direct confrontation on the issue of sheltering Dawood Ibrahim. They, of course, did not seem to take much note of the Qandhar hijackers. And on the POWs point the Pak side actually plastered the blame on the Indian face for having failed to secure the release of its two score prisoners after releasing a lakh of the Pakistani soldiers at Simla! In any case, these are only extraneous issues. Minor problems that the Pak president, promised to look into, though he did 'not have much hope'. There, any rational person would be hard put to blame him! And, the silence over the Pak occupied territory distorts the whole perspective.

Take the issue of cross-border terrorism. If' Indian Kashmir-as the non-mention of the Pak occupied parts reduces it to -be a 'disputed' area the infiltration there cannot be reasonably condemned. If India has 'held' a part of the state over which Pakistan has had a claim, it would not be very unjustified for Pakistan to try securing its claim through 'other' means. Terrorism here becomes a relativist term. And, the members of Pak contingent called the terrorists in Kashmir, 'freedom fighters' on the Indian TV channels without many people confronting them over it. If you are holding a 'disputed' territory, you very well cannot claim precedence or a very exalted righteousness just because the other side has agreed to non-use of force at Simla. It becomes illegitimate only when the lawful claim of India to the whole of the J&K state, as it stood at the time of accession is made.

Indeed, over the years through a curious lapse India's claim to the Pak occupied Kashmir has not been pressed. Why, even those brilliant Marathon speeches of Krishna Menon did not dwell very hotly on this aspect of the Kashmir dispute. Sometimes when India gets into a very tricky straints a ritual mention of the PoK is made but for all practical purposes India appears to have given up its claim. And thereby has not only weakened its case but also closed the way for a solution. For if the areas held by Pakistan are theirs, the dispute reverts to the Indian parts of the state. It is this fact of the illegal occupation of the Pakistan which makes the issues of infiltration, terrorism and interference seeking to change India's internal and external disposition, relevant.

That, indeed, is the position from which the path to a settlement of Kashmir, in whichever shape, can be laid. It is well nigh foolish to expert Pakistan to accept any dispensation short of an actual transfer of territory, if India keeps shying away from asserting its rightful claim to the areas unlawfully held by Pakistan. And there is a constitutional obligation, too. How can the government of India overlook forcible occupation of her territories and still claim to safeguard the territorial integrity of the nation? The Indian case and claim stems from the fact of the state having acceded to India legally, as per the procedure that was laid for such accessions. And, the 'dispute' began when Pakistan tried to annex the state through force and did actually snatch a part that she still hold in unlawful occupation.

Thus the aspirations of Kashmiri people are nothing very different from those of the Baloch or Sindhi or Mohajir aspirations in Pakistan itself. Therein lies the basis of the Indian case that the aspirations of Kashmiris are a matter to be dealt with internally without any external aid or advice, which if tendered would be interference in the internal affairs of the country. Here while the aspirations for autonomy etc. can be granted or denied as the nation deems fit, the Pak denial of freedom to the people in occupied territories is a reprehensible crime, because the notion of 'occupied territories' is not accepted by the modern world. In that Pakistan is clearly impinging upon the norms of international behaviour. If and when, India clarifies its stand, that is.

It may be sometime before it is known what exactly transpired at those hours-long one-to-one meetings at Agra between the PM and the Pak President, whether he did assert the Indian claim. On record there is no mention that he did. The official Indian statement issued after the 'inconslusive' summit makes no mention of this Indian position. And in its absence, the Pakistani claim that India is straying into peripherals to bog it down looks not very incorrect. For, if India has given up its claim to the Pak occupied parts there verily remain the Indian parts of the state alone, to be arbitrated. Nay?

Global: Philanthropy goes female

By Elayne Clift

Women everywhere are changing the face of philanthropic giving. Their collective vision of what it means to be a philanthropist is global, innovative and strategic. Social change is the key word as women move away from deficiency models of passive grant-seeking to power-based, progressive action.

The Sociedad Mexicana Pro Derechos de la Mujer (Mexican Society for the Rights of Women), or Semillas (Seeds) as it has come to be called, is a perfect example of this. Founded in 1990 by Mexican feminists with support from the California-based Global Fund for Women, Semillas was one of the four recipients of this year's 'Changing the Face of Philanthropy Award' given by the US-based Women's Funding Network at their 17th annual conference in Philadelphia.

Semillas is the only women's fund in Mexico. Last year it distributed over $150,000 to 21 organisations throughout the country. Their grantees include sex worker organisations, lesbian groups and the marginalised women of Chapas. The Women's Funding Network award recognises Semillas' efforts to build a culture of cooperation throughout Mexico. "We are about social change," says Semillas Executive Director Emilienne de Leon, "about transforming the lives of women. We want to create a new culture of giving, not as charity, but as woman to woman."

Semillas is building a network of women who are investing in other women, regardless of class and race and attempting to change the idea of philanthropy so that it is more cooperative and proactive. This network, the first of its kind, is more systematic and integrated than networks have been in the past. The model for social change through philanthropy that Semillas envisions is one in which people are connected to each other regardless of traditional barriers.

"It is not about creating opportunities, or building more shelters. It's about changing the system to be more transformative in ways that are equitable, ways that provide justice and human rights," says de Leon. She sees the challenge as both concrete and abstract: On one hand, concrete action is necessary to show women's power, on the other, governments and other decision makers must realise that "their way doesn't work anymore".

Similar initiatives have taken off in different parts of the world. The Girls as Grantmakers Network (GGN) which started work in 2000, is representative of the changing face of philanthropy. In the US, this shift reflects the work of women's foundations and girls' organisations working collaboratively to foster a new generation of young women who understand the power they have to create social change and who derive deep satisfaction from exercising that power. The mission of GGN is to share programme ideas, develop creative solutions and offer assistance to women's funds interested in adapting their model. GGN is also training the next generation of women philanthropists to be donors, activists, volunteers and foundation staff.

In Africa, Bisi Adeleye Fayemi, Founder and Director of the African Women's Development Fund in Ghana, says, "After Beijing, there is no denying women as a powerful social force. And women are clear about their issues, actions and strategies. But they don't have the necessary resources. We have to mobilise those resources." The African Women's Development Fund focuses on five priority areas identified by women in that continent: women's human rights, political participation, peace building, health and reproductive rights and economic empowerment.

Approximately 44 per cent of Africa's population, the majority of whom are women, still live below the poverty line of US$ 39 per month. These women lack access to resources such as land, capital, technology, water and adequate food. Africa's literacy rate of 50 per cent, the lowest in the world, affects mainly women. Its maternal and infant mortality rates are the highest in the world, and the HIV/AIDS pandemic has had a devastating impact on the continent.

Additionally, over the last six years, at least two million Africans have died as a result of war and genocide. Many more are refugees. The toll on women is incalculable. Still, the African Women's Movement has made significant gains. Continuing resources are now vital if these gains are to be sustained. The African Women's Development Fund, launched last year "to sustain the energies of the African Women's Movement", will award its first grants to at least 35 organisations across Africa in September 2001.

In Nepal, TEWA, a women's fund was founded in 1996 to empower women economically thereby fostering their independence. "The fund involves the resourceful people of Nepal so that we can become less reliant on foreign assistance," says director Kanchan Rana. TEWA has trained a cadre of 175 women who sought internal support for the fund. Their efforts have paid off and with a solid endowment fund in place, TEWA made 120 grants and dispersed US$ 40,000 last year. Rana supports Semillas and the African Women's Development Fund in their calls for social change through women's philanthropy. "We must integrate the conceptual and the practical challenges," she says. "Power and control over resources are universal issues. But I think women in the developing world must be the priority for social change."

Women like Emilienne de Leon, Bisi Adeleye Fayemi, and Kanchan Rana have joined together with women of the northern industrialised countries in an international women's funding network that meets annually. Together, they are engaging in dialogue to foster healthy north/south relationships and to share ideas, experiences and strategies. The dialogue continues from meeting to meeting via the Internet and list serves. Says de Leon, "The challenge is to go on but also not to go back. Our meetings are inspiring. They help us to direct our efforts toward real change."

That change speaks to a new ethic of cooperation, action and cutting edge grant-making on a global scale. Says a US women's fund director, "We are turning personal stories into public policy initiatives. And when someone tells us 'it can't be done', we just turn around and say, 'We'll do it anyway'. There is no denying that we are a collective force for social change." WFS

When laws wither, society wilts

By Aditya Nath Dar

How did Ms Jayalalitha win a landslide victory? Why is Mr Laloo Yadav still ruling Bihar, notwithstanding a fodder scam amounting to over a thousand crore rupees? Why are more and more witnesses turning hostile in the Jessica Lal murder case? Why did the Priyadaarshini Mattoo case end in acquittal? Why are the BMW and Naina Sahni cases still pending? These and other similar anguished queries have a common answer – the failure of our criminal law administration system.

An American judge Mr Justice Arthur T Vanderbilt said : It is in the courts and not in the legislature that our citizens primarily feel the keen, cutting edge of the law. If they have respect for the work of their courts, their respect for law will survive the shortcomings of every other branch of government; but if they lose their respect for the work of the courts, their respect for law and order will vanish with it to the great detriment of society. People have unfortunately down the years after August 1947 lost respect for the courts of law, without doubt at the lower level; they pretend to accept them as another inevitable appendages of the state machinery, like police stations. In the public eye, Mr Laloo Yadav, charge sheeted by the police and Ms J Jayalitha, convicted by a judge, are similarly situated – both may be corrupt like most others, but so are some judges and most policemen – the benevolent leaders are however seen as victims of politics, the police and pliant judges. This belief may not be justified, but its prevalence is detrimental to democracy.

Respect for the law is one of the select group of principles that we have come to regard as essential in the effective and equitable operation of popular Government. As a democratic principle, it is recognised as binding on both the governed and those who govern, says Prof. Henry J Abraham, a noted US jurist. How did we manage to reach the depth we find ourselves in? The quality of justice depends more on the quality of persons who administer the law than on the content of the law they administer, said jurist Evan Haynes. The judges alone cannot be held responsible for the miserable state of criminal justice delivery system wherein lawyers and investigators also administer the law.

Why do witnesses resile from their statement to the police? Obviously, it is found that retreat is either inevitable due to threat, or profitable. Soon after the commission of a crime, the apprehended culprits are in state of shock and resigned to the inevitable. With the passage of time, the situation changes. Experts in law enter the field and pinpoint dangerous witnesses that need to be removed. Every one involved gets a chance to throw away the last strand of hay stuck on their limbs. The prosecution falters and influential people get away, literally with murder. People lose faith in the system, turn cynical, and elect leaders ignoring court verdicts.

Two principal reasons promote such hostility of witnesses to the prosecution. First, the inordinate delay in trial, and second, the fact that the act of withdrawal from a previous statement to the police is of no consequence in law. Law-makers statutorily declared more than a century ago that a statement made to the police need not be signed, and even if it is signed it cannot be admitted in evidence. But for this salutary provision, the police would have got confessions to secure conviction in every case, very often of innocent people. The constitutional guarantee that no person shall be compelled to be a witness against himself would have been rendered meaningless.

In the US, the police are required by law to inform every accused that he has a right to remain silent until his lawyer arrives on the scene. This protection, popularly known as the Miranda principle, has been recently reaffirmed by the US Supreme Court, notwithstanding the repeated efforts of the police lobby to dilute it. However, our Supreme Court has ruled that the Miranda law has no place in our fundamental right to life and liberty.

The misuse of the provision that permits retreat from statements to the police is not a new phenomenon. One such bizzare incident came before our Supreme Court recently. The factual matrix of that case was that on August 15, 1988 during the Independence Day Celebrations in Snagram Singh Jee High School, Gondal, in Rajkot district of Gujarat, a sitting MLA was shot dead. The Deputy Collector of the District was sitting next to the victim and having initially given a true statement he retreated. And the case ended in acquittal. The SC in the year 1997 while reversing the judgment and sentencing the accused held: "It is the salutary duty of every witness who has the knowledge of the commission of crime, to assist the State… unfortunately… many a witness turns hostile and in some instances even direct witnesses are being liquidated before they are examined by the Court… (even a) responsible person like a sub-Divisional Magistrate (had) turned hostile."

The law however has not been amended probably because laws are not made in the well of the House. What is unfortunate is that the police and judges are not ready to experiment within permissible limits. For example, the code of criminal procedure (CrPC) provides for recording of statement before a Magistrate. One fails to understand why resort is not taken to this provision. In every sensational case involving the rich and the famous, the police should record the statements of potential witnesses before a magistrate or a judge Section 164 (5) of the CrPC appears to permit such a procedure. Such statements made under oath have greater sanctity; witnesses cannot retreat from them except at the peril of facing prosecution for perjury. And if witnesses are not allowed to shirk, people generally will develop respect for our judicial system, which in turn will generate several positive trends. When the Supreme Court acted correctly and with firmness even Veerappan bowed.

The aspect of delay is essentially a management problem. The age old excuses of shortage of manpower and other alibi cannot withstand scrutiny. We in India have made the principle of seniority more inviolable than the prescriptions of all religions, separately or cumulatively. The seniority culture is so all pervasive that the Courts seems to think that taking up matters for trial on a chronological basis alone is the fairest way. If only more sensational cases within the jurisdiction of every Court are disposed of speedily, people will feel the presence of a functioning judiciary. Imagine the BMW case concluding in six months or the ‘tandoor’ case finishing as soon as DNA reports were received – one way or the other, respect for the institutions concerned would have been enormously enhanced.

Treating all cases alike is a fundamental managerial mistake. People generally are not bothered about the number of pending cases involving comparatively lesser crimes, but they are aware of a Mattoo case, the Jessica Lal case or a BMW case. The image of the judiciary is determined by the manner in which courts deal with cases imprinted on the public imagination. Courts need to project a good self image since it is on their reputation that society’s respect for law rests. A good advertising agencies can work miracles, but one judge can destroy the image built by other noble ones. The High Court Judge in – charge of districts may be empowered to instruct the Judges of the lower courts to take up cases out of turn for trial. A vegetable vendor knows what to dispose first by experience, and not by applying the principle of seniority.

Jayalalitha has already appointed new police chiefs. She will soon appoint new special judges, exactly as her predecessor had done. Obviously, the DMK- appointed Special Judges who will acquit her will also decide honestly, but the judiciary will stand condemned. Recall Justice Stevens of the US Supreme Court in the Bush vs Gore imbroglio, lamenting that "Although we may never know with complete certainty the identity of the winner … the identity of the loser is perfectly clear. It is the Nations confidence in the judge as an impartial guardian of the rule of law. INAV

 



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