Daily Excelsior... Editorial

EDITORIAL

Half-hearted response

Blow to beasts

Violence mounts in Kashmir

By Ghazanfar Butt

Hurdle race in courts

By V. R. Krishna Iyer

Begging for help discredits India

By Atul Cowshish & M Rama Rao

EDITORIAL

Half-hearted response

If Pakistan has not been able to inordinately delay its response to India’s latest 12 mutual confidence-building measures, it is obviously because of the altered global scenario where urge for peace is reigning supreme. Left to it, the neighbouring country perhaps would have waited for some more time. It is clear from its half-hearted and illogical articulation of what was supposed to have been a ‘prompt and robust’ reply. Such unreasonable attitude is all the more evident in a matter directly related to Jammu and Kashmir. Reacting to India’s suggestion to reopen the Uri-Muzaffarabad road, Pakistan Foreign Secretary Riaz Khokhar has welcomed the proposal ‘in principle’. At the same time, he has acted as a spoiler. He has made it conditional by saying that the checkpoints on the road should be managed by the United Nations. Having said this, it does not behove Mr Khokhar, who has been formerly his country’s high commissioner in New Delhi, to have accused India of having indulged in merely ‘a tactical ploy’ in the name of restoring normalcy in the region. What is this if not an expression of black words? Why could Pakistan not have straight away agreed to the reopening of the Uri-Muzaffarabad road? In reality, this would have meant the resumption of the travel between Srinagar and the capital of the occupied territory. By bringing in the world body, Pakistan has left no doubt about its wicked objective to circumvent the real issues and keep the pot of J&K boiling. Its stance, clearly, runs contrary to the Shimla Agreement in accordance with which both the countries are committed to resolving their disputes in a bilateral manner. Why should Pakistan choose to ignore this accord to scuttle a glorious possibility of the resumption of contact between people on either side of the Line of Control? Once the Uri-Muzaffarabad road link is in place, this would enable the two neighbours to remove the other hurdles in the journey on this route between New Delhi and Islamabad. Gradually they would have been encouraged to seek new avenues of cooperation like exploiting the tourism potential that exists en route with beneficial result for the sub-continent as a whole. All this now lies in the realm of an uncertain future with Pakistan tottering on the first step itself.

Any counter-argument why India should hesitate to accept the UN control of the road is fallacious. Firstly, this is not at all required and would only belittle the status of the global forum as this would amount to dragging it into an insignificant matter of policing a route. Secondly, the involvement of any third party would not be in keeping with the laudable purpose of strengthening relations between the two neighbours. Instead, such a helping hand actually act as a stumbling block in the way of achieving the primary goal. This needs to be asserted, without any fear of contradiction, that in no way Pakistan needs a go-ahead signal from the UN to accept this proposal. By asking for its intervention, the neighbouring country has sadly shirked its own responsibility. Lest Pakistan nurses any doubt it should know that had it accepted India’s proposal, it would have been warmly congratulated by the world body. Almost all members of the UN want both the countries to cooperate with each other. In this context, it would be quite relevant to recall that India has always been a strong votary of the UN’s participation in contentious multilateral matters. In 1947 also it had unilaterally approached the UN with an appeal to persuade Pakistan to stop the aggression. There was no need at all for the country to have moved the global body at that juncture. It had already accepted the accession of J&K. Moreover, it was chasing away the Pakistan forces and tribal invaders and would have exorcised the land of the evil in a matter of few more days. Yet, in the interest of universal peace and brotherhood, it had settled for a wiser and maturer course which, if it seems to have gone adrift, is for reasons only too well known.

Alas, a good opportunity appears to have been lost because of Pakistan’s misplaced belligerence. As people are the ultimate arbiters of their political destiny, this will be perfectly in order if the Uri-Muzaffarabad road is reopened to give new generations that have grown up on either side of the LoC since 1947 a chance to inter-act with each other. It is not for nothing that the J&K leaders of almost all hues want that the dialogue between the people of the entire State, as it had existed in 1947, should resume. They vary from Chief Minister Mufti Mohammad Sayeed to, ironically, Sardar Abdul Qayum, whose present approach is in sharp contrast to his role in 1947, to Mr Amanullah Khan, one of the founders of the Jammu-Kashmir Liberation Front. Obviously Pakistan has developed cold feet. It is scared that its bluff would be called once the people in the territory under its illegal occupation see for themselves that Islam in J&K is not under any threat, as they are being told, but is actually flourishing. Also, they may learn that the religion as is being interpreted to them as a tool of jihad is quite different from the one they ought to respect as a noble instrument of communal amity and tolerance. It will also be quite a revelation to people in Mirpur and Muzaffarabad that the distance between the Shankaracharya Temple and the Hazratbal shrine in Srinagar or, for that matter, between the Raghunath Temple and the Khatiqan Talab mosque in Jammu is not much. By travelling to and fro, they will be better equipped to make a distinction between an Islamic and a secular state. Evidently Pakistan does not want such positive thoughts to overwhelm the people it has kept under its iron fist. That should explain its diffidence to reopen this route. Given this backdrop, this is reasonable to presume that in whatever language it may be couched, Pakistan’s response to the other Indian peace proposals would not be delinked from its basically retrograde thinking as its priorities lie elsewhere.

Blow to beasts

Not infrequently, it has been suggested that the perpetrators of the heinous crime of rape should be subjected to capital punishment. Some people have also proposed their public beheading. What should, however, be done in case their victims are mentally challenged women? The Supreme Court has done well to suggest that Parliament should prescribe a higher minimum sentence for the rapist ‘when the victim is a mentally challenged person’ as in such a case ‘there is not only physical violence and degradation and defilement of the soul but also exploitation of her helplessness’. The apex court made this observation while dismissing the appeal of a person sentenced to ten years’ imprisonment in a matter in which his victim, a mentally under-developed girl, had not realised the cruelty inflicted on her till her parents had asked her about her swollen belly. Pointing that the Indian Penal Code provided the higher sentences in case the physical age of the rape victim was below 12 years, the Supreme Court has rightly raised the poser about the fate of a victim whose ‘mental age is not even 12 years’. There can’t be two opinions that no mercy should be shown in such cases. The legislature must follow up the suggestion made by the highest court in the land without any delay.

Violence mounts in Kashmir

By Ghazanfar Butt

Having used improvised explosive device in Jammu and Kashmir for over a decade now, it has become a habit for General Musharraf to keep sitting on a powder keg. He has been seen doing it for the last over four years –ever since he sent Pakistani soldiers to occupy the heights of Kargil. Hardly a few months have lapsed without Pakistan having indulged in highly provocative acts of terrorism.

The month of October saw General Musharraf raising tension in the region a number of times. To start with, he fired off three missiles, to prove to the world that the Chief Executive of Pakistan means what he says and that he should be taken seriously. To reinforce the impact, General Musharraf stepped up the violence in Jammu and Kashmir. A series of Fidayeen attacks on Indian Armed Forces establishments climaxed with an attempt to breach the security at the residence of Chief Minister Mufti Mohammed Sayeed in Srinagar.

If the stepping up of violence in August was to help in establishing that Jammu and Kashmir was not a peaceful State and prepare the ground for his speech in the United Nations, the attack on the Chief Minister’s residence in Srinagar was to impress the delegates who had gathered in Kuala Lumpur for the summit of the Organisation of Islamic States. Unfortunately for General Musharraf, the delegates at Kuala Lumpur were more pre-occupied with the situation in Iraq.

General Musharraf’s visit to the United Nations and to the United States and Canada did not have the desired impact as the media doubted the credentials of the President of Pakistan, and kept asking the question whether he was a friend or a foe. He could not convince his allies that Pakistan was a friend – but they accepted that he was the best bet under the circumstances.

The OIC summit was overshadowed by the decision of the US Treasury Department that Dawood Ibrahim alias Sheikh Dawood Hassan is a "specially designed global terrorist" with a Pakistani passport and a Karachi address. The decision of the US State department puts the terrorist label on the D-company and its network in South Asia and pressure will mount on General Musharraf to hand him over. The United States is reported to have found evidence to prove that Dawood was involved in large-scale shipment of narcotics to the United Kingdom and Western Europe; and that a "financial arrangement" was reportedly brokered between Dawood and Osama-bin-Laden to facilitate him using the smuggling routes from South Asia, the Middle-East and Africa.

Of course, India has been asking Pakistan to hand-over Dawood Ibrahim who is wanted for various crimes committed in India. That could hardly be the reason for the US naming Dawood as a "global terrorist". The speculation is that the United States wants Pakistan to act and secure Osama-bin-Laden. A beleaguered President Bush in Iraq has to show some success to the people of United States.

Pressure is also mounting on Pakistan to send forces to Iraq to help in stabilizing the situation there. The United Nations has passed a resolution unanimously on October 16 to create a UN authorized multi-national force under US leadership to help stabilize the situation in Iraq. General Musharraf is expected to quote a price for participation in the US-led multi-national force. The suggestion made by noted columnist Ayaz Amir (Dawn 19/10) is: "Looking our American friends firmly in the eye we should tell them that, for once, we won’t be taken for granted.

Our minimum demands: all American loans written off at once, without Congressional approval, and a one-time grant, say of $ 15 billion. Plus, market access for textile exports. Plus, a squadron of jets better than F-16s to be paid for over the long-term. Plus, an airborne warning system (AWACS) to counter the Phalcon radar system India is getting from Israel."

If Musharraf succeeds in getting the demands met, he could fire a few more missiles and repeat the claim that they could reach any city in India. And also claim that the growth rate of Pakistan’s economy has increased manifold. Will it impress the people of Pakistan? General Musharraf has been doing a balancing act with those demanding restoration of democracy, as also with those who have been wanting Pakistan take the Islamic route and support the Taliban. He has also had to contend with the Shia-Sunni clashes, which threatened to engulf the whole country after the assassination of the Sunni leader and member of the National Assembly, Maulana Azam Tariq in broad daylight in Islamabad on October 6. Leader of the Sipah-e-Sahiba of Pakistan, Maulana Tariq was considered invulnerable – and his assassination in broad daylight along with his three bodyguards and a driver has sent shock waves. Over 25,000 gathered in Islamabad next day to demonstrate against the assassination and the minority Shias were called infidels.

Over a thousand persons have been killed in sectarian clashes in Pakistan during the last decade. Most of them have been minority Shias.

In Jammu and Kashmir, the increase in violence only increases the determination of the people to fight the terrorists. The terrorists even tried to take hostage a dozen people in Tharian village in Kashmir when they went to negotiate their surrender.

If General Musharraf wants India to talk to him on Jammu and Kashmir on his terms, the answer was given to him in no uncertain terms by Prime Minister Vajpayee – that the talks will cover Pakistan Occupied Kashmir and Pakistan will not be allowed to keep any part of the territory of Jammu and Kashmir. (adni)

Hurdle race in courts

By V. R. Krishna Iyer

India, it has been jibed, lives simultaneously in several centuries. It has been also said that India is a functional anarchy. Indian courts illustrate both. The procedure codes, the rules of practice, the confusing court fee system and the labyrinths of the limitation law remind us of our colonial heritage which can easily be scrapped, although Parliament, in its utter innocence and political busyness, makes a mess of it all even when it amends.

The CPC and the CrPC could be usefully repealed and effectively substituted by short, simplified enactments and streamlined procedures, costing less to parties, more purpose to lawyers beyond endless orality and profusion of paper, giving more discretion to judges and reducing the number of appeals, revisions and reviews and what not.

Indeed, even the Evidence Act, ancient and perfect for the British when it was made, is an enemy of discovery of truth, riddled with sophistries, compounded by case law. The judges' commonsense and sense of relevance can better discover truth than Sir James Fitz Stephen's casuistries and arcane rules.

To draft dynamic, flexible, radical legislation, streamling and simplifying procedures is to impossible task, but orthodoxy must be abandoned, judicial interpretational fundamentalism must be jettisoned and codified colonialism sloughed off.

Strange but true, obvious obesities like too many appeals, revisions and references are not being axed by legislatures and simple changes, necessitated by judgments of courts which miscarry statutory objectives or inflict hardships on the poor by interpretational aberrations are not carried out by them even other courts point them out and Law Commission recommended.

Even the Election Commission is now a frequent litigant and one case breeds another. These are easily correctible. Regrettably, legislative draftsmanship is still Victorian in India (not in Britain or the Continent or the U.S.).

Indeed we have borrowed the esoteric art from England of yore where the Renton Committee has reported for change, because of obscurities in statute law, leading to uncertainty and litigative prolixity. As has been wisely pointed out, by the Renton Committee, the rule of law governs the life of the people:

"There is hardly any part of our national life or of our personal lives that is not affected by one statue or another. The affairs of local authorities, nationalised industries, public corporations and private commerce are regulated by legislation. The life of the ordinary citizen is affected by various provisions of the statute book from cradle to grave."

"The Committee might have added that the rule of law and Parliamentary democracy itself are imperilled, if laws are incomprehensible. They did say that it is of fundamental importance in a free society that the law should be readily ascertainable and reasonably clear, and that otherwise it is oppressive and deprives the citizens of one of his basic rights. It is also needlessly expensive and wasteful. Reed Dickerson, the famous American draftsman, said it cost the Government and the public "many millions of dollars annually."

And if the law were simple at all by accident, the courts, by their strange grammar a statutory construction and self-created sound-proof system, make a mystique of legalese. The meaning of meanings, even for laws governing humble tribal and bonded labour, betel-nut dealer and harijan victim, is derived by citations from Law Lords who still rule over us as ghosts through Law Reports.

A popular jingle which depicts a common place experience has been quoted by Francis Bennion while commenting on the Renton Report:

"I'm the parliamentary draftsman

I compose the country's laws

And of half the litigation

I am undoubtedly the cause."

In our own country there is great sluggishness and slipshodness in law making except where politicians and their interests, monetary or otherwise are involved. The Pension Bill of MPs was blitzed through the Parliament, while the same law-makers slept for years over a simple amendment of the definition of 'industry'. Had it been done early, heaps of litigation could have been obviated.

There is a remedy in the Law Commission, which can function as a mediator between the Court and the Justice Ministry and Parliament. But, invariably, the reports of the Law Commission gather dust, humiliating the experts whose work is wasted.

The Indian statute took is crude English in print and disappointing in action. Art. 39-A commands changes to make the law a real tool for justice so that the poor and the disabled may be consumers of the promised justice of the Constitution.

Apart from Lok Adalats of a limited character and stray legal aid hardly available to the pariahas of society, no effective change in the system has been made.

The only contribution we can boast of is public interest litigation, a good Indian judicial innovation. Even there, many robed skeptics are uneasy about this phenomenon and some judges are using this new process to promote judicial luxury - judges' interest litigation! CNF

Begging for help discredits India

By Atul Cowshish & M Rama Rao

For many years after Independence, India had to suffer the humiliation of literally begging for food as a combination of factors led to drastic decline in grain production. This mortification ended when a trilateral effort of Indian and American scientists, M S Swaminathan and Norman Barlaug respectively, and Indian farmers, heralded the Green Revolution. In fact, today India is in a position to export grain.

But sadly 'begging' has not stopped. The embarrassment for this nation of one billion is more acute when Indian leaders and top officials are seen pleading for 'help' before the powerful nations, particularly the US, to sort out problems with the implacable foe, Pakistan.

Of course, nobody in power will officially accept that India 'begs' or 'bows' before the US for any 'help'. The stated official position of India is that Indo-Pak differences are to be resolved bilaterally and no 'third party' needs to poke its nose. But the reality is somewhat different and even disgraceful.

We have seen the Prime Minister, Atal Bihari Vajpayee, declaring the country's intention to have a decisive battle ('aar-paar ki ladai') with Pakistan but not a single shot has been fired in the direction of that country. He did send the troops to the border, only to demoralise them by asking them to stay there in hibernation for nearly a year. Pakistan replied with more abrasive verbal and even physical (with the 'help' of its terrorists) aggression to call off Vajpayee's bluff.

The same leader writes to the US President and frequently tells him in person or over the phone that the Pakistanis and its military dictator, Gen Parvez Musharraf, are not playing ball. Vajpayee and his Ministers moan before visiting foreign dignitaries about the unacceptable Pakistani occupation with cross-border terrorism, suggesting that they pressurise Islamabad to put an end to that kind of provocation. When these leaders visit foreign countries they carry the same message.

The NDA Government, being led by a party of super nationalists, is very touchy about any hint of a third party 'intervention' (or whatever it is to be called ) in the dispute over Kashmir. But the same Government gladly welcomes American (and other western) leaders telling India how to go about settling that dispute with Pakistan. For close to 50 years, the Americans were the most reluctant visitors to India, as were leaders of most of the Big Five with the solid exception of the Russians.

Since the US formulation- and Pakistan's all too ready endorsement of it- that Kashmir has become the hottest flashpoint on earth, the Americans are becoming frequent fliers to India. Their mission on each visit is to lecture India on the need to settle the Kashmir dispute 'peacefully'- no matter how high the provocation from a nuclear blackmailing Gen Musharraf and his puppets in Islamabad.

Hardly a day passes when India's the Home Minister elevated to the status of Deputy Prime Minister, L K Advani, does not tell the nation that currently the biggest menace from Pakistan, cross border terrorism, has to be fought by India alone as no nation, certainly not the US and the West, has shown any interest in pressurising Pakistan into stopping it. While that menace keeps growing, the Indian leaders do not tire of asking foreign leaders to take up the issue with Musharraf.

By now everybody in India knows that the so-called 'war against terror' is US-centric. That is to say, US President George Bush sees this 'war' as one against those who intend to harm the US interests or its nationals, not against Musharraf's 'freedom fighters'. The Americans detest Al Qaeda because it swears by animus towards them. That the US pays only lip service to fighting terrorism in India became very clear again when Bush in his address to the UN General Assembly failed to mention India among the countries that were victims of terrorism. This is how America and its President George 'Dubyaman' Bush, view the war on 'terror'-- a 'global terror'!

Yet, Indian leaders turn to such a man in the hope that he would 'help' or 'assist' India in fighting terrorism which hits this country on an almost daily basis. An otherwise very protocol conscious officials machinery in India abandons protocol as senior Indian leaders submit themselves to harangues from even junior US officials. Relatively junior officials from the US, are almost always granted access to the highest in the land. Not only that, when he was External Affairs Minister, Jaswant Singh would frequently fly to foreign destinations to call on a US official, Strobe Talbot, who was much lower in rank than him.

Indeed, the Government in New Delhi pursues its relations with the US with little dignity. Thanks to media hype, it is rather unfortunate that a large section in India has come to believe that Washington has outlived its past prejudices against India. Ground realities do not support that. The US continues to calibrate its relations with India with its Pakistani prism. The US has not removed the basic flaw in its policy towards India-namely, equating India and Pakistan in all matters, whether it relates to seling arms or giving aid. The US cannot be treated as a friend of India if Washington is not willing or able to adopt a policy towards India free from its considerations for Pakistan.

Our leaders appear to be grateful to the Americans for 'selling' a few military gadgets that will be handy in fighting the diabolic war on terrorism. These equipment do not come gratis and there is no need to express any gratefulness towards the Americans, particularly when they supply the same gadgets, sometimes even their superior varieties, to the Pakistanis. Much of the US military aid to Pakistan these days comes free in the name of fighting the remnants of the Taliban and Al Qaeda who continue to be given shelter by ISI and the many 'rogue' elements in the land of the 'pure'.

Virtually every foreign visitor to New Delhi is 'begged' to 'commit' himself or herself to supporting India's candidature for a permanent seat in the UN Security Council, whenever it is expanded. Surely, India does not have to grovel before foreign powers for a permanent seat at the UN Security Council. By any fair yardstick, India can expect it as a matter of right. The Pakistani gripe in this connection counts for nothing. But if the Big Powers gang up against India, no amount of genuflecting before them by our leaders will get us that coveted seat at the Security Council.

In fact, there is a whole gamut of 'endorsements' that the Indian Government seeks from foreigners, particularly the strides in the field of IT and economic recovery. This approach tends to make achievements in these fields look unconvincing and belittle the contributions of the people behind these achievements.

Free and vibrant nations with pretensions of joining the Big Power league do not have to look for 'endorsements' from other players. India is not a product that has to be 'endorsed' by a Sachin Tendulkar. If there is pride in an achievement it does not require to be shored up by others. The nation must always hold its head high.

(Syndicate Features)