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.
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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).
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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?
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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
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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
societys 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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