Wednesday, March 16, 2011

Legally Blind

Back to Perdition :)...

India is a land of laws, or legally speaking, a sovereign, socialist, secular, democratic republic. While that is true on the Hi-Def screen on which it is typed, Indians (at large) are poor at matters of law, their implementation, and the onus that lies with them as codified by the Constitution and as intended by the Constitution-writers as a well-meaning and responsible citizenry. While the previous point may be vigorously and thoroughly disputed, questioned and chafed at, many exhibits to the point being made can be made with little effort. Not for nothing do we have a thousand and one "mutinies" in India, not for nothing do we let our emotions rule ahead of common-sense and wisdom, not for nothing do we paint ourselves with the "chalta hai" attitude that typifies us, and not for nothing do we let the noisy, raucous and verbally mighty make their primary point in high decibels while we hunt for phrases of hifalutin English. All the above is even more true of educated, emancipated and middle-class India than (say) of the blue-collar worker with not more than a basic (or even a complete lack of) education.

But there is after all a matter of law. And we as a country are poor at it, which is an admission of fact rather than one of rhetoric, noisy or otherwise. I (for one) am curious about law matters for it not only sets precedents and landmarks on the ground, but it also gives one the legal course to file a habeus corpus or a public interest litigation or a common cause notice or a right to information questionnaire. In fact, to discern the suo motus from the sui generis is not a privilege, but an obligation, unfortunately and willfully forgotten. There will be times when I will post (on this blog) some legal issues of interest to me that enlightens certain aspects of democratic living India where the pen that writes the verdict is mightier than the right, the wrong and everything in between.
1) Election Symbols Order re-visited:

History: Common symbols under the Election Symbols Order of 1968 is allotted only to those parties that have received enough political mandate in the previous democratic exercise to accrue the benefits associated with having a common symbol. In other words, having a common symbol is not a RIGHT, but a privilege. Time and again, the Election Commission of India has dismissed any appeal by any party (big or small) if they fail to uphold their end of the bargain in this democratic quid pro quo. And time and again, the Supreme Court has upheld the rights of the Election Commission to do its job as mandated by the Constitution. And time and again, some party would appeal to the Election Commission as to how deserved they are to seek an exception. And the circle would go on...
Background to this case: Linky

For the impending Tamil Nadu elections, some parties had appealed to the Supreme Court seeking common symbols for their candidates. For example, DMDK (seeking ‘nagara' symbol) Kongunadu Munnetra Kazhagam (seeking ‘cylinder' symbol) Manithaneya Makkal Katchi (seeking ‘candle'), Viduthalai Chiruthaigal Katchi (seeking ‘star' symbol) Pudhiya Thamizhagam and All India N.R. Congress for allotment of a common symbol between them.

Verdict: Case dismissed. The Supreme Court writes, "It would certainly be to the advantage of the registered unrecognised political parties if they were able to put up candidates on a common symbol. On the other hand, if all registered unrecognised political parties were to be provided with a common symbol, prima facie, it would render the provisions of the Election Symbols Order, 1968, completely unworkable and destroy the very object it seeks to achieve.”
2) Dalit tag for SCs of non-dharmic religions:

History: SC converts from the dharmic religions (Hinduism, Buddhism, Sikhism, etc.) to religions of the book (Islam, Christianity, etc.) have been clamoring for holding on to their SC status despite moving out of the oppressive caste system, supposedly codified by Manu and supposedly engendered in the Hindu religion. In other words, while some of the SCs have suffered from and under the oppressive caste system and as a result (supposedly) have decided to leave the dharmic fold, they would still like to hold on to the benefits possible with reservations and other enfranchising measures under the Constitution despite not (supposedly) suffering from the clutches of the caste system inter alia. The question therefore arises as to whether the caste system is a Hindu-centric one (or rather a dharmic-religions centric viewpoint) or an Indian societal ill. One part of the argument is that reservation benefits are finite resources available with the welfare state (that is India) to ameliorate its masses that have suffered historically. And just because a person leaves the Hindu religion today does not take away his sufferings in the past. Another part of the argument is that people who choose to blame the Hindu religion for Indian society's ills often choose to bat for the SC converts' seeking continuation of reservation benefits when such religions have NOT codified (as for example, the Smriti of Manu has) such evils. So it becomes a question of heightened emotional rhetoric rather than one of legal argument.
Background to this case: Linky

The Centre seems tilted against the inclusion of "dalit" Christians and Muslims in the Scheduled Castes list, arguing the need for evidence to show that converts continued to face discrimination of the same degree as before their exit from the Hindu fold. The Union law ministry has cited a Supreme Court judgment dismissing the claim that the constitutional provision limiting the SC tag to Hindus/Sikhs was discriminatory. The UPA is learnt to favour status quo on the back of law ministry's view coupled with the opinion of the National Commission for SCs — that the touchstone of being a dalit was if converts followed traditions and customs as before conversion and suffered the same social disabilities.

Verdict: Yet to be dismissed. Legally speaking, unless the Government of India (by fiat or by an Act of Parliament) formulates a position that cannot be adjudicated by the Supreme Court, despite all kinds of heightened emotional rhetoric, this is a no-brainer that is just asking to be dismissed. The part of the argument that seeks rights for historical wrongs can be dismissed because historical suffering is accrued by the forefathers and mothers of the sufferer, and not by the person in question. Once the sufferer leaves the religion that causes suffering and chooses to embrace a new religion that has not codified such oppression, the sufferer (independent of the historical grievance) is "enjoying"/"suffering" the benefits/from the ills that go with his/her new religion including the lack of a codified oppression of any sort. Whether such a gain is instantaneous or continual is a problem that cannot be adjudicated with any objective merit.

3) SC/ST quota in minority institutions:

History and Background Linky: Jamia Millia Islamia has recently been affirmed by the National Council of Minority Educational Institutions as a minority educational institution with a historical Islamic background. While the Government of India mandates educational institutions in India to provide reservation benefits to SCs, STs and other sets of the population (as it mandates), this clause is not enforced in minority institutions. Thus, the recent adjudication by the NCMEI means that SCs, STs and OBCs will lose reservation benefits at JMI, which they had been enjoying so far. As before, finite resources imply that life is a zero-sum game and someone has to pay the price.
Verdict: The Ministry of Human Resources Development, under which Education falls, has accepted the reading of pre-independence Indian history and the verdict of NCMEI that JMI is a minority institution. As a minority institution, the university is free to decide its reservation policy and the government cannot interfere. Unless, someone legally questions the reading of history on the part of NCMEI, or the law gets changed, not much can be done. What may happen is that the administration of the JMI may allow status quo to be restored as long as the MHRD arrives at a suitably brokered "compensation" package. However, the administration is (broadly speaking) loath to continue with status quo. Thus, it might be left to the Judiciary to adjudicate the question of law on this matter. Asking to be dismissed.

4) Is membership of organizations declared banned a crime? Linky

Background: It is common-sense that membership in organizations that have been declared unlawful and hence banned under the Unlawful Activities Prevention Act (UAPA) is an act of terrorism/sabotage/sedition/profligate malcontent (as the case may be). In a recent verdict, the Supreme Court has held that mere membership of a banned outfit would not attract criminal action. The apex court’s ruling was part of a judgment acquitting Arup Bhuyan, who was convicted by a Guwahati-based designated court now under the lapsed Terrorist and Disruptive Activities (Prevention) Act. The Court has further declared that willful planning of sabotage or sedition can only be construed as criminal acts.
Verdict: Rightfully, this case sets a precedent that can be exploited by members of anti-establishmentist/anti-nationalist organizations to incite the population without leaving any other trace of a proof. The Assam Chief Minister, Tarun Gogoi, responded with: “The judgment that supporters of any banned organisation are not punishable by law will inspire the anti-Indian and secessionist forces in the days to come. I think this verdict by the apex court calls for a review.” A home department official said there are 13 outfits that are banned under the Unlawful Activities (Prevention) Act, 1967, under which, a person need not indulge in or incite violence to be treated as a criminal. “By becoming a mere member of a banned organisation, such a person will attract imprisonment for up to two years,” he said.

In short, a review petition can be (and will be) filed because of the establishment of precedence that will curtail the administrative actions of both the Government of India and the various State governments afflicted with terrorism of different hues. At the worst case, by a law in the Parliament, the Government of India can abrogate the Supreme Court's verdict and ability to adjudicate on questions of these nature by placing it under the non-judicial part of the Constitution.

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