Thoughts in the atmosphere

Things of the world, and out of it.

Law in India – A tragic failure

Posted by desicontrarian on June 5, 2009

In India, the law is a nuisance. 

1. There are 48000 cases pending before the supreme court, and 38 lakhs in the high courts. The Allahabad High Court has the dubious distinction of having the maximum number of 8.59 lakh pending cases, while the Madras High Court has the second-highest arrear of 4.34 lakh cases. 

2. 10 commissions have probed the anti-sikh riots of 1984 over a period of 20 years. Yet most of the perpetrators have gotten off lightly (to put it mildly), and the victims have not got justice. In 1984, The Marwah commitee was forcibly disbanded by the home ministry and its Justice Marwah’s notes were suppressed. In 1990, the Kapur Mittal committee idenitified 72 police officers as culprits and recommended dismissal of 30 police officers. Not a single one was punished. The Potti Rosha committee, in August 1990, recommended the arrest of Sajjan Kumar. When the CBI team went to arrest him, his supporters locked them up. Potti & Rosha voluntarily disbanded the committee. The Jain Aggarwal committee which followed, recommended registration of cases against Sajjan Kumar, H.K.L. Bhagat & Jagdish Tytler. The cases were not even registered by the police. I can go on and on. But the gist is this – No Justice.

3. For the past 33 years, Surajnath Yadav, a farmer in the Indian state of Bihar, has been going to the local court as an accused in a case involving the theft of a pair of oxen in his village. Forty-six-year-old Yadav is the only survivor of five villagers accused of stealing a pair of oxen from a house in Nawada Ben village on 19 June 1973. He was 13 years old then. Today, he is the father of four children. The maximum punishment for Yadav’s crime is three years in prison. The other accused – Ramdeo Yadav, Suresh Yadav, Sabha Yadav and Gopal Singh – are all dead. So are the oxen. So is the investigating officer, Yashwant Singh, the complainant, Ramvriskha Yadav and his son, Vishwanath Yadav.

4. The Bhopal Gas tragedy case proceedings have been going on for over twenty years.Till date CBI has brought 215 witnesses in the case in which statement of 178 people have been registered. “ Since the case started all the three foreigner accused are absconding. On 7 December,1984, Waren Anderson gave bail of 25,000 rupees and promised to come whenever he is needed but till now he has never come for a single hearing. The most painful thing is that neither Warren Anderson nor Union Carbide or Union Carbide Eastern have been presented before the court. The Indian Government has also not taken any steps to bring them to India,” – Salinath Shadgi, member of Bhopal Gas Tragedy organisation. Over 3,500 people died in the days and weeks after toxic fumes spewed out of a pesticide plant in Bhopal on December 2, 1984. According to official reports, nearly 15,000 people have died since from cancer and other diseases. Bhopal Gas tragedy victims contest this figure, saying the death toll was 33,000.

5. Jagmohanlal Sinha is famous for his 1975 ruling on the election of then Indian Prime Minister, Indira Gandhi , in which he declared the election invalid. Events that followed his decision resulted in the Prime Minister declaring a state of emergency in India.

6. The Forty-second Amendment Act of 1976 (officially the “Constitution (Forty-second Amendment) Act, 1976”) was an amendment to the Constitution of India that reduced the ability of the India’s Supreme and High Courts to proclaim laws constitutional or unconstitutional. Passed by the Indian parliament on 2 November 1976, it also made India a socialist secular republic and laid down the duties of Indian citizens to their government. It was passed by the parliament during the Indian Emergency (1975 – 77) brought by the Congress government headed by Indira Gandhi.

7. In an atmosphere where a large number of people had been detained without trial under the repressive Maintenance of Internal Security Act, several high courts had given relief to the detainees by accepting their right to habeas corpus as stated in Article 21 of the Indian constitution. This issue was at the heart of the case of the Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas Corpus case, which came up for hearing in front of the Supreme Court in December 1975. Given the important nature of the case, a bench comprising the five seniormost judges was convened to hear the case.

During the arguments, Justice Khanna at one point asked the Attorney General Niren De: “Life is also mentioned in Article 21 and would Government argument extend to it also?”. De answered, “Even if life was taken away illegally, courts are helpless”[4]. The bench opined in April 1976, with the majority deciding against habeas corpus, permitting unrestricted powers of detention during emergency. Justices A.N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H.Beg, stated in the majority decision:

“In view of the Presidential Order [declaring emergency] no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention.”

8. The Justice J.C. Shah commission of inquiry probed a tumultuous period in India’s post-Independence history — the Emergency imposed by Indira Gandhi during 1975-77. It revealed how a system of administration was subverted, how sycophancy to the leader and her son reached unsurpassable levels, how middle-level bureaucrats connived with extra-constitutional power centres to wreck established norms and rules of governance. The Commission submitted its report — three volumes running into over 500 pages in time. The excesses were picked out and studied in details, the culprits singled out. The Government only had to follow up with action against them. Yet, decades later, nothing happened. Justice J.C. Shah’s commission of inquiry died a silent death. The people it held responsible for the excess called Emergency went from strength to strength. Indira Gandhi returned as Prime Minister, Sanjay Gandhi’s career was on the ascent when fate intervened. The officials who implemented the orders, often with a lot of violence, lay low for few years but returned to hold influential positions.

9. In 2006, Indian National Congress President and MP, Sonia Gandhi, resigned several posts under pressure from political opposition who asserted that the posts were ‘offices of profit’ and thus unlawful. Jaya Bachchan was disqualified from the Rajya Sabha, while she was also chairperson of the Uttar Pradesh Film Development Council, therefore it was deemed an office of profit. Ms. Bachchan, whose name appears as Bachchan Jaya Amitabh in the nomination papers, was renominated and was declared elected unopposed in the by-elections to the Rajya Sabha from Uttar Pradesh. Ms. Bachchan makes her re-entry to the Rajya Sabha after being disqualified from its membership in March this year following the President upholding the Election Commission’s notice to disqualify her for holding an office of profit. The Commission had pronounced its verdict on a petition filed by a Congress candidate, Madan Mohan Shukla, who alleged that when Ms. Bachchan filed her nomination for the June 2004 biennial elections she was holding an office of profit (Chairperson of the Uttar Pradesh Film Development Council). Mr. Shukla had further stated that to escape disqualification she resigned giving a backdate in her papers, and her resignation was accepted by the State Government.

See the pattern? To the high & mighty, the law is no obstacle to crimes & misdemeanors. To the people at the middle & bottom of the pile, the law is hell.

In the relative scale of things, the delightfully named Amnesia Pub incident was a petty crime. Yet secular/christian intellectuals raise a hue and cry about the Mangalore pub incident. I’d paraphrase Christ’s words –  “Why do you strain at gnats, while India has been swallowing camels for a long time?”.

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