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Judicial activism Of corrupt individuals, media trial and justice

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PUBLISHED IN GREATER KASHMIR

The recent past has witnessed a good measure of writs, orders and directions from the Supreme Court of India which could be termed classical examples of Judicial Activism, an expression used invariably to connote meaning when courts pronounce on matters which usually and in the ordinary course of things do not fall within their well defined areas of operation or jurisdiction. Legally the courts in these matters may not be lacking jurisdiction totally, but as a matter of practice which over a long period of time has hardened into an unwritten rule, the courts do not interfere in such matters as are best left to the discretion or powers of the Executive or Legislature.
There might have been instances of judicial activism in the country in the past but then the constitutional doctrine of separation of powers was never lost sight of. The Supreme Court of India while dealing with various matters and while giving new dimensions to the concept of rule of law and taking the concept of rule of law to higher legal heights had always refrained from making pronouncements on matters of public policy followed by the executive. Thus the often spoken about doctrine-of-separation of powers between the judiciary, executive and parliament was respected and clearly kept in mind.
Without going into finer details as to what could be termed as judicial activism or pure judicial functioning and not trying to lay down lines of distinction between the two, let us come straight way to the recent unusual decisions or directions of Supreme Court which have once again brought the debate to the fore. All this started when in the recent past Mr. Subramanium Swami approached the Supreme Court of India seeking directions on to CBI to probe in to the 2 G Scam. In his petition Mr. Swami maintained that he had written to the Prime Minister of India to grant sanction for the prosecution of Mr. Raja the then Telecom Minister but the Prime Minister did not grant the same, he further said that he had written to the Prime Minister in this connection in November, 2008. Till then no FIR was lodged in 2G Scam. One wonders as to how the Prime Minister could grant sanction to prosecute Mr. Raja merely on the petition of Mr. Swami. However, an FIR was lodged in 2G Scam in October, 2009 and the Supreme Court started to monitor investigation into the case. What followed is history.
The accused in 2G Scam where subjected to media trial on the one hand and on the other hand the Supreme Court of India while monitoring the investigation acted in a method and manner, that gave rise to many legal ponderables, for instance that one of the cardinal principles of criminal jurisprudence, ‘an accused is presumed to be innocent till his guilt is proved beyond doubt at the trial of the case’ was given a burial and an impression was created that whatever the investigating agency comes forthwith is the gospel truth and that as if the guilt of the accused was already proved, so much so that the concession of bail to the accused persons was also denied to them. Though the case even if proved, does not carry death penalty not even life imprisonment as punishment. In thousands of cases across the country which are heinous in nature and where the allegations are grave, but do not carry death penalty as punishment accused are enjoying the benefit of bail because in the legal system in this country bail and not jail is the rule, especially at the pre-trial stage. However, in the case under discussion again the cardinal principal of law relating to bail that (bail is not to be with held as a matter of punishment) was given a good bye. That the accused is presumed to be innocent and the presumption of innocence is in favour of the accused till proved guilty beyond any shadow of doubt and he has right to remain on bail as a presumable innocent person, all this and many other principles of criminal jurisprudence and criminal justice system received a burial.
Any one belonging to legal profession with even slight understanding of the criminal jurisprudence and criminal justice system, can safely say that in the heat and dust created by such cases as 2G Scam, the courts of the country have allowed the long respected cardinal principles of criminal justice system to become a causality and in fact have made these so.

 

A pertinent question stares one in his or her eye that as to what purpose of law and justice is served by keeping Kalanmozi in continued judicial custody, would she flee justice if she was allowed bail? Women are allowed bail even in cases which involve death penalty or life imprisonment as punishment. Kalanmozi is an ML P. and very well known person in her own rights and has very strong roots in society. Therefore, there is no reason in law to withhold her bail.
Another disturbing instance is Hassan Ali’s case, why is he still in jail, when the allegations against him are failing apart in spite of what the investigating agency had to publicize about him and in spite of very strong observations of the Supreme Court in his case. He was put to media trial much before his actual trial in a court of law would start and people were given to believe that Hassan Ali is involved in money laundering in a big way and that he is the king pin in the matter of stashing black money in foreign banks. He was publicized to be owing Rupees Seventy Two Thousands crores of income tax to the country by the investigating agency and in a rush perhaps the Supreme Court not only formed a S.I.T. to investigate the black money stashed in foreign banks but also at one point in time observed that why shouldn’t the government invoke terror laws against him. His bail was cancelled and he was jailed. His rights which the Constitution gives him were violated by the very judiciary which is supposed to protect tire fundamental rights of the citizens, which includes the accused persons also.
(The author is advocate J&K High Court)

ORIGIN: http://www.greaterkashmir.com/news/2011/Sep/15/judicial-activism-83.asp

14 Bills (11 in the Lok Sabha and 3 in the Rajya Sabha) introduced during the Monsoon Session

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LAXMAN PRASAD IN LAWYERSCLUBINDIA

The Lok Sabha passes 13 Bills and the Rajya Sabha passes 09 Bills during the session

 The Monsoon Session, 2011 of Parliament which commenced on Monday, the 1st of August, 2011, concluded on Thursday, the 8th of September, 2011.  The Session provided 26 sittings spread over a period of 39 days.

During the Session, Supplementary Demands for Grants (General) for 2011-12 and the related Appropriation Bill, was discussed and passed by the Lok Sabha. Thereafter, the Rajya Sabha considered and returned the Appropriation Bill.

In Lok Sabha, Motion regarding price rise, calling upon the Government “to take immediate effective steps to check inflation that will give relief to the common man”, moved by Shri Yashwant Sinha was discussed and adopted without voting.

One Bill replacing the Ordinance, namely, the Indian Medical Council (Amendment) Ordinance, 2011 which was promulgated by the President, was considered and passed by both the Houses of Parliament during the Session. Another Ordinance, namely, the Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Ordinance, 2011 which was promulgated by the President, could not be replaced by an Act of Parliament.

In the Lok Sabha, five Short Duration Discussions under Rule 193 were held on (i)Commonwealth Games, 2010; (ii) Relief and resettlement of Tamils in Sri Lanka; (iii) Setting up of Lokpal and certain events that took place on 16.08.2011 in Delhi; (iv) Widespread corruption in the country; and (v) issues relating to setting up of a Lok Pal.

In the Rajya Sabha, four Short Duration Discussions under Rule 176 were held on (i) Growing incidents of terrorism in the country; (ii) Commonwealth Games, 2010; (iii) Growing incidence corruption in the country; and (iv) Problems being faced by Sri Lankan Tamils. Besides, clarifications were sought on the statement made by Prime Minister on setting up of a Lok Pal.

Besides, 2 Calling Attentions in Lok Sabha and one Calling Attention in Rajya Sabha were discussed.  One Half-an-hour discussion each in Lok Sabha and Rajya Sabha was also discussed.

During the Session, 14 Bills (11 in the Lok Sabha and 3 in the Rajya Sabha) were introduced.  The Lok Sabha passed 13 Bills and the Rajya Sabha passed 09 Bills during the session. A list containing the titles of the Bills introduced, and, considered and passed during the Session is given below:

 

 

LEGISLATIVE BUSINESS TRANSACTED DURING EIGHTH SESSEION OF FIFTEENTH LOK SABHA AND 223rd SESSION OF RAJYA SABHA

(MONSOON SESSION, 2011)

 

I – BILLS INTRODUCED   IN LOK SABHA

 

1.       The Indian Medical Council (Amendment) Bill, 2011

2.       The Lokpal Bill, 2011

3.       The Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Bill, 2011

4.       The Appropriation (No.3) Bill, 2011

5.       The Damodar Valley Corporation (Amendment) Bill, 2011

6.       The Customs (Amendment and Validation), Bill, 2011

7.       The Benami Transactions (Prohibition) Bill, 2011

8.       The National Academic Depository Bill, 2011

9.       The Land Acquisition, Rehabilitation and Resettlement Bill, 2011

10.   The Nuclear Safety Regulatory Authority Bill, 2011

11.   The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2011

 

II – BILLS PASSED BY LOK SABHA

 

1.       The Appropriation (No.3) Bill, 2011

2.       The State Bank of India (Subsidiary Banks Laws) Amendment Bill, 2009

3.       The Transplantation of Human Organs (Amendment) Bill, 2009

4.       The National Institutes of Technology (Amendment) Bill, 2010

5.       The Customs (Amendment and Validation) Bill, 2011

6.       The Indian Medical Council (Amendment) Bill, 2011

7.       The Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry (Amendment) Bill, 2011

8.       The Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Bill, 2011

9.       The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2011

10.   The National Council for Teacher Education (Amendment) Bill, 2011

11.   The Academy of Scientific and Innovative Research Bill, 2010

12.   The Orissa (Alteration of Name) Bill, 2011

13.   The Constitution (One Hundred and Thirteenth Amendment) Bill, 2011

 

III – BILLS INTRODUCED  IN RAJYA SABHA

1.       The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Bill, 2011

2.       The Border Security Force (Amendment) Bill, 2011

3.       The Administrators-General (Amendment) Bill, 2011

 

IV – BILLS PASSED BY RAJYA SABHA

1.       The Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry (Amendment) Bill, 2010

2.       The Appropriation (No.3) Bill, 2011

3.       The Coinage Bill, 2011

4.       The Juvenile Justice (Care and Protection of Children ) Amendment Bill, 2010

5.       The National Council for Teacher Education (Amendment) Bill, 2010

6.       The State Bank of India (Subsidiary Banks Laws) Amendment Bill, 2011

7.       The Transplantation of Human Organs (Amendment) Bill, 2011

8.       The Indian Medical Council (Amendment) Bill, 2011

9.       The Customs (Amendment and Validation) Bill, 2011

 

ORIGIN:  http://www.lawyersclubindia.com/news/14-Bills-11-in-the-Lok-Sabha-and-3-in-the-Rajya-Sabha-introduced-during-the-Monsoon-Session-13334.asputm_source=newsletter&utm_content=news&utm_medium=email&utm_campaign=nl_15_09_2011

Indian courts can try offences committed by Indian in foreign country, rules Bench

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PUBLISHED IN THE HINDU

But prior consent of Central government (under Section 188 Cr.P.C.) is required

A dowry or any other offence committed by an Indian husband against his wife in a foreign country can be tried by a court in India, the Supreme Court has held.

A three-judge Bench of Justice Altamas Kabir, Justice Cyriac Joseph and Justice S.S. Nijjar said “the provisions of Indian Penal Code have been extended to offences committed by any citizen of India in any place within and beyond India by virtue of Section 4 thereof.”

The Bench, however said that offences committed by an Indian citizen in a foreign country would be amenable to provisions of IPC subject to the limitation imposed under Section 188 Cr.PC, viz seeking the prior consent of the Central government.

In the present case, the appellant Thota Venkateswarlu was married to Parvatha Reddy Suneetha in November 2005 as per Hindu traditions and customs in Ongole in Andhra Pradesh. At the time of marriage Rs. 12 lakh in cash, 45 sovereigns of gold and Rs. 50,000 as ‘Adapaduchu katnam’ was alleged to have been given to the husband, mother-in-law, and other relatives of the husband.

According to Suneetha, her husband left for Botswana in January 2006 and she later joined him. While in Botswana, she was allegedly severely ill-treated and various demands were made including a demand for additional dowry of Rs. 5 lakh. Unable to withstand the torture she sent a complaint to the Superintendent of Police, Ongole for dowry offences under IPC as well offences under the Dowry Prohibition Act.

The magistrate, to whom the complaint was forwarded took cognisance and issued summons to the husband and others, who were questioned on their arrival to India. While the Andhra Pradesh High Court quashed proceedings against the appellant’s mother and two others, it dismissed his plea. The present appeal by Venkateswaralu is directed against this order.

The appellant’s wife argued that part of the offence relating to dowry was committed in Indian soil and part of the offence was committed abroad. Hence the offence could be tried in Indian courts. However, the appellant argued that he could not be tried without the previous sanction from the Central government.

Writing the judgment Justice Kabir pointed out that it was clear that the case relating to the alleged dowry offences were committed outside India. But since part of the offence was committed in India, the court here could try the appellant and the High Court was correct in rejecting his plea to quash the proceedings. The Bench while asking the trial court to take up the case said, the trial would not proceed without the sanction of the Central government as envisaged in Section 188 Cr.P.C.

Half a victory

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VENKITESH RAMAKRISHNAN  IN THE FRONTLINE

Team Anna wins the first round, but the way ahead in the fight against corruption is full of uncertainties.

“A BATTLE has been won in the campaign for cleansing public life through the rallying of vast sections of people across the country. But a purposive piece of legislation has finally to be passed by Parliament even to rate this victory as truly meaningful. Indeed, the state of peace that has descended after the tumult is pregnant with uncertainties. Uncertainties of such dimensions that no one has a clue as to what this will ultimately deliver.” These words spoken by a key player in the negotiations between Team Anna and the United Progressive Alliance (UPA) government during the tumultuous 12-day fast undertaken by Anna Hazare, which rocked the national capital and most other parts of the country, sum up the mood prevailing among individuals and groups that would play a role in the drafting and passage of a new Lokpal Bill. The government, the big and small opposition parties with representation in Parliament, Team Anna and various other institutions and bodies that have come up with suggestions on the proposed Bill, such as the Aruna Roy-led National Campaign for People’s Right to Information (NCPRI) and the Udit Raj-led Justice Party, all share these uncertainties and the lack of clarity about the future.

At the moment, of course, the prime mover is the Standing Committee of Parliament, chaired by Congress leader Abhishek Manu Singhvi. The committee is expected to take up and initiate negotiations on the various proposals from different sides sometime in September itself. Central to these negotiations are the three points on which Parliament expressed its sense-of-the-House agreement in response to Team Anna’s demands. The sense-of-the-House resolution stated that the issues of “Citizens’ Charter, Lower Bureaucracy also to be under the Lokpal through appropriate mechanism, and establishment of Lokayuktas in the States” would be taken up by the Standing Committee. This process itself has historic dimensions because it is for the first time that the members of the Standing Committee will be discussing the provisions of an already introduced government Bill in response to a sense-of-the-House resolution suggesting incorporation of new provisions.

The mainstream political parties and Team Anna expect this process of the Standing Committee to be completed before the winter session of Parliament. On their part, both Union Finance Minister Pranab Kumar Mukherjee, who emerged as the most important player on the government side during the latter stages of the anti-corruption agitation, and Anna Hazare himself have come up with public postures that have signified a sense of caution and accommodation, which in turn is considered conducive to the smooth conduct of deliberations. In repeated comments to the media after Anna Hazare concluded his fast on August 28, Mukherjee made it clear that the government had bowed before people’s power and its genuine representative leader. Anna Hazare responded by agreeing that there was a lot more to be done peacefully to take the negotiations to the level of fruition. Asserting that “this is only half a victory”, he said he was confident that Members of Parliament would not go back on their word to provide “an effective and strong Lokpal”.

While this sense of accommodation and optimism bodes well for deliberations in the future, large sections of public opinion still harbour apprehensions as to how things will unfold. Speaking to the media immediately after Anna Hazare ended his fast, Infosys founder V. Narayana Murthy hailed the ‘in principle’ agreement of Parliament to the demands put forward by Team Anna but added that it was only the first step. “We have to go through the process of implementation and take it to success. And that is the toughest part. For implementation is the Devil.”

According to Professor Nil Rattan of the Patna-based A.N. Sinha Institute of Political Studies, the apprehensions about implementation have arisen essentially on account of the very track record of the players involved in the process. “Both sides have shown intransigence at different times. While the government has bumbled about from one mistake to another for long spells while addressing the issue, Team Anna had initially taken the obstinate position that nothing short of its version, the Jan Lokpal Bill, would do. The present atmosphere for deliberations could be arrived at only because the government rectified some of its mistakes and Team Anna was ready to come down on some of its demands like bringing the higher judiciary under the ambit of the Lokpal. What is the guarantee that this will stand? Who knows whether sections of the government will embark on some adventurist path again,” Nil Rattan told Frontline.

Indeed, the UPA’s track record in handling the early days of Anna Hazare’s August agitation is pathetic. Almost every section of the government, starting with Prime Minister Manmohan Singh, kept on making mistakes. Interventions by Home Minister P. Chidambaram and Telecommunications Minister Kapil Sibal made matters worse. Finally, Congress general secretary Rahul Gandhi contributed his mite to the rank confusion in the ruling establishment. These mistakes were in many ways directly proportional to the rising popularity of Anna Hazare.

Undoubtedly, the biggest mistake was the imprisonment of Anna Hazare on August 16, that too in Tihar jail, where people like Suresh Kalmadi and A. Raja, who were arrested on charges of corruption, are incarcerated. Subsequently, an official spokesperson of the Congress classified Anna Hazare as a “top to bottom” corrupt person.

Interestingly, the decision to take Anna Hazare to Tihar jail was made in an apparent effort to keep him away from the crowds. The political bosses and the administrative-bureaucratic leadership, especially of the Home Ministry, had reportedly considered different options, such as placing him in a government or private guest house or moving him out to Ralegan Siddhi (his hometown in Maharashtra), but finally decided against all these, fearing that his supporters would gather in front of the guest house or at Ralegan Siddhi. Informed sources said that they finally decided to shift him to Tihar because it was thought that the jail would not be accessible to Hazare’s supporters. But what happened was the exact opposite. Crowds gathered at Tihar in big numbers, forcing the government to order his release.

In the days following his release, and during the fast undertaken by him at the Ramlila Grounds, Anna Hazare was perceived as the symbol of all that is positive in society and in many ways the one-stop solution for all social problems. Various organisations, such as sections of the Rashtriya Swayamsewak Sangh (RSS)-led Sangh Parivar and non-governmental organisations of different hues and patterns of funding, pitched in for crowd mobilisation. Cumulatively, the impact of genuinely inspired participation and motivated organisational mobilisation resulted in massive crowds at the maidan.

Meanwhile, the government made another faulty move: it stated that Parliament cannot give up its supremacy. This when it had undermined Parliament in April by calling Team Anna to draft the Lokpal Bill and keeping the opposition parties out of the drafting committee. While this move was made by the Prime Minister, Rahul Gandhi made a facile attempt to score some brownie points through an intervention in Parliament highlighting the same supremacy-of-Parliament position.

Ultimately, it required the intervention of some youth power from the government side itself to untangle the mess that senior politicians such as Manmohan Singh, Chidambaram and Sibal had created. It was through the good offices of a young Delhi MP, Sandeep Diskshit, that the government built channels of communication with Team Anna and managed to bring about a solution. To start with, Dikshit’s intervention was followed by an appeal from Manmohan Singh to Anna Hazare to withdraw the fast. He made this appeal even while crediting Anna Hazare with valid slogans representing the people’s aspirations.

However, in the euphoria created by this collection of crowds day after day, shrill voices questioning the very legitimacy of political processes and leaderships were heard from the Ramlila podium – from Team Anna leaders including Anna Hazare, Kiran Bedi and Arvind Kejriwal, and supporters such as the actor Om Puri. The campaign was such that it sought to raise visions of an apolitical leadership replacing politics in the country. Voices like those of the social activist Swami Agnivesh, which emphasised the need to accord validity to political leaderships and elected representatives, were fiercely criticised by the volunteers of Team Anna and by sections of the crowd. Agnivesh’s comment that Hazare ought to have responded positively to Manmohan Singh’s appeal was targeted for special vitriolic treatment by many of Team Anna’s supporters.

Despite this, the government persisted with its efforts at negotiation. It was in this process that Pranab Mukherjee’s role came to the fore, even though Chidambaram and Kapil Sibal continued to argue that a tough line would ultimately compel Team Anna to compromise. This tussle on strategy reflected in a different manner within Team Anna too. Though voices like those of Swami Agnivesh had been sidelined, there also developed an impression that Kejriwal and Kiran Bedi were pushing things to the brink. A group within Team Anna, including senior lawyer Prashant Bhushan, took the lead in meeting a number of political leaders, particularly in the opposition BJP and the Left. These initiatives were supplemented by the Mukherjee-led negotiations.

Gradually, sections of Team Anna that had raised a rant against the political class as a whole had to listen to the less aggressive sections. And, it was this that finally led to the discussion of Anna’s demands in Parliament and the final passage of the resolution.

Notably, when Anna Hazare’s fast was withdrawn on August 28 following the passage of the resolution, Kejriwal made it a point to underline the fact that at no point of time had Team Anna sought to denigrate the entire political class as corrupt. While this was sought to be presented as a clarification, many observers perceived the effect of a corrective reverse pressure in this statement.

The passage of the resolution in Parliament and the acknowledgement of Anna’s agitation methods by parliamentarians have evoked high praise, especially from sections of the media, some of whom have described the agitation as the most phenomenal people’s movement to have happened in the history of independent India. In fact, some commentators have even gone to the extent of suggesting that there could be a classification of national politics as pre-Anna and post-Anna phases.

While it is true that the agitation and the fast touched an emotive chord in large sections of the people, including the middle class which has never participated actively in political initiatives, the fact remains that many other movements, ranging from the struggle for land reforms to the empowerment of Dalits, have had more lasting historical impact on Indian society.

Professor Sudhir Panwar, an Uttar Pradesh-based social activist associated with the Kisan Jagriti Manch, who supported the Anna Hazare agitation as a significant effort to initiate a new democratic discourse in the country’s political system, also pointed out that the increased participation of the middle class had helped get enhanced media attention to the movement compared with other grass-roots initiatives such as those of farmers and agricultural workers.

“The fact is the issue of corruption, especially corruption by the political class, is so pervasive and the fight against it has such widespread resonance that even those who have never thought of the country and its people in a larger sense joined in,” he said.

Panwar pointed out that the middle class, which had assiduously kept away from politics and refused to respond to phenomenal political developments such as the demolition of the Babri Masjid and the Gujarat riots of 2002, was triggered into action on political and other forms of corruption also because of the global economic crisis and its impact on day-to-day life.

Panwar emphasised that the leaders of Team Anna should use this opportunity to broadbase the movement with a larger understanding of other social issues and an earnest incorporation of other social movements. “Only then will this have a lasting impact,” he stated.

Naturally, this would involve adopting a more open approach to issues such as the demands of Dalits and backward classes in relation to the Lokpal and looking at broader issues such as the impact of neoliberal policies. Team Anna has announced its resolve to continue struggles in new areas such as electoral reforms, which will include the right to recall and the right to reject legislators. It has also stated that it will strive for decentralisation of power through the greater empowerment of gram sabhas and mohalla sabhas.

A one-line overview of the national political situation in the context of the agitation and the related developments was provided by Pranab Mukherjee when he said, “We are at a crossroads.” It was with this phrase that Mukherjee began his speech marking the beginning of the August 27 debate in Parliament on the Lokpal Bill.

Clearly, as the statement implies, it is time to move with caution to enhance the democratic content of the nation and its institutions and systems. It is a message that applies equally to the largely discredited and beleaguered political class as also to the new civil society players who have had a modicum of success in initiating a corrective process.

And exactly because of this success, Team Anna needs to be extra cautious in what it preaches and practises. For, the hallucination among some of its leaders that India is Anna and Anna is India militates against the very concept of democratic discourse.

Rajiv case outcome will settle fate of India’s 18 ‘dead men walking’

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J.VENKATESAN & VINAY KUMAR in THE HINDU

With as many as 18 clemency petitions filed by death-row convicts or their family members still pending consideration with the Government — some for years on end — the eventual fate of the petition filed by the three condemned men awaiting execution in the Rajiv Gandhi case is bound to have an impact on other prisoners awaiting the gallows across India.

In a plea admitted by the Madras High Court on Wednesday, Perarivalan, Santhan and Murugan said that the eleven years the government took to process and reject their mercy petition made the execution of their death sentence unduly harsh and excessive. Rajiv Gandhi was assassinated in 1991 and the trio, who were convicted of being part of the larger conspiracy, have already been incarcerated for 20 years, mostly in solitary confinement.

The last execution in India was carried out in Kolkata in August 2004, when Dhananjoy Chatterjee was hanged for raping and killing a schoolgirl. Since then, there has been no execution of convicts awarded the death penalty.

According to information furnished by the Minister of State for Home, Mullappally Ramachandran, in the Lok Sabha on August 16, 18 mercy petition cases of death convicts are pending. Though “the power under Article 72 of the Constitution does not contain any limitation as to the time in which the power conferred might be exercised,” the minister asserted that, “As per the orders of the Supreme Court, the cases of mercy petitions are processed expeditiously in consultation with the governments/departments concerned for a final decision of the President of India, under Article 72 of the Constitution.”

The facts, however, speak otherwise.

Mercy petitions are usually filed soon after the Supreme Court rejects the petitions seeking review of the judgment convicting and sentencing the accused to death. Right after the mercy petition is filed, the

President’s office forwards it to the Union Home Ministry for advice by the Council of Ministers. Invariably, delay takes place in the government forwarding its advice to the President. Thereafter, the President decides on the mercy petition based on the government’s advice. Lengthy delays occur there too.

In the case of the three convicts in the Rajiv case, the mercy petitions were sent to the President soon after the review petitions were dismissed in October 1999. It took about five years for the government to convey its decision to the President to reject the mercy plea and six years for the President to accept the advice and pass appropriate orders.

Recently the Home Ministry has asked the President to reject the mercy petition of Afzal Guru, sentenced to death in the Parliament attack case of December 2001. In reply to information sought under the RTI Act by Subhash Chandra Agarwal, the President’s Secretariat said the oldest petition pending with them was from 2005, while six mercy petitions were submitted to her office in 2011 alone.

The petition of Sushil Murmu from Jharkhand, who was convicted of killing a nine-year-old child for a religious ritual, has been pending since 2005. Another case is of Jafar Ali, who is facing the death penalty for murdering his wife and daughters. He applied for the President’s mercy August 21, 2006.

Meanwhile, the RTI reply also said that the President had commuted the death sentences of 10 convicts to life imprisonment following mercy petitions. In 2009 alone, death sentences of seven convicts had been commuted to life imprisonment.

In May, President Patil rejected the mercy plea of Mahendranath Das alias Govinda Das who had severed the head of 68-year-old Harakanta Das, secretary of the Guwahati Truck Drivers Association, in 1996. He was sentenced to death by a sessions court in 1997. Another mercy plea rejected by the President was that of Devinder Pal Singh Bhullar, who has been given the death penalty in a 1993 car bombing case in New Delhi.

During his tenure, President A.P.J. Abdul Kalam decided only two mercy petitions. In 2004, he rejected the plea of Dhananjoy Chatterjee, and in 2006 he commuted convict Kheraj Ram’s death penalty to life imprisonment. President K.R. Narayanan did not clear any mercy petition.

In 2009, the Supreme Court judgment in Jagdish vs State of Madhya Pradesh asked the Centre to decide the mercy petitions expeditiously, preferably within three months. It said the condemned prisoner and his suffering relatives have a very pertinent right in insisting that a decision in the matter be taken within a reasonable time, failing which the power should be exercised in favour of the prisoner and the sentence should be commuted into one of life imprisonment.

A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice, the court said.

In July this year, the Supreme Court issued notice to the Centre on a plea by Devinder Pal Singh Bhullar to explain the inordinate delay of several years in deciding the mercy petitions of convicts after the Supreme Court had pronounced its final verdict. The petitioner said, “The power is not merely a privilege but a matter of performance of official duty. The power has to be exercised not only for the benefit of the convict, but also for the welfare of the people who may insist for the performance of the duty and therefore the discretion has to be exercised on public considerations alone.”. The matter is still pending as the Centre is yet to file its reply. However, days after Bhullar filed his petition, his mercy plea — which had been hanging fire for years — was speedily processed and rejected by the Home Ministry and President.

Anna Hazare fast: Lokpal debate in House unlikely today over procedural delays

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IIT-Delhi faculty and students show support for Anna Hazare

A debate scheduled in Lok Sabha on various versions of theLokpal Bill, including that of fasting anti-corruption activistAnna Hazare, was unlikely on Friday because of procedural delays. Soon after the debate began, the House was adjourned till 3.30 pm following uproarious scenes by the Opposition.

Parliamentary Affairs minister Pawan Kumar Bansal said the debate may now be held on Saturday. He expressed displeasure over the functioning of the House.

‘Anna ready to break fast’
The developments came as Hazare’s fast entered its 11th day at the Ramlila Maidan. Hazare’s associate Kiran Bedi said the Gandhian activist would end his hunger strike once Parliament passed a resolution that met his demands. These are: the inclusion of lower bureaucracy under Lokpal, a citizens’ charter and the setting up of state Lokayuktas.

“Today is a key moment for India’s future. The resolution by MPs will be victory for every Indian,” Bedi said.

Prashant Bhushan, another Hazare associate, said: “A mere discussion will not do. Parliament will have to pass a resolution indicating that the Lokpal Bill covers the three issues raised by Anna.”

Hazare’s team demanded that Parliament, if need be, hold the debate on Saturday too, saying Hazare’s health was precarious and corruption was a critical issue.

Rahul suggests Lokpal on lines of EC

Rahul Gandhi
Rahul Gandhi in Lok Sabha.

Hazare’s ongoing fast was lauded by Rahul in his Zero Hour speech in Lok Sabha, but he emphasised that the fight against corruption had to move beyond setting up an effective Lokpal.

“We can’t wish away corruption. It will require a comprehensive programme of action. There is a perception that enactment of single Bill will eradicate corruption. I have serious doubts about that,” Rahul said.

“The Lokpal law is just one element in the fight against corruption. Laws are also required on government funding of elections, land issues and mining,” he said, reminding MPs that they had the responsibility of allowing Parliament to function so that such laws could be enacted.

“Why not make the Lokpal a constitutional body like the Election Commission?” asked Rahul, all the while being backed by Congress MPs.

“Democractic processes cannot be undermined. Underming Parliament’s supremacy is dangerous for democracy,” he cautioned. “Let us commit ourselves to truth and probity in life. We owe it to the people of India.”

BJP MPs interrupt Rahul speech
Rahul’s statement sparked off an uproar in the House, with BJP MPs rising from their seats and shouting slogans. His speech was interrupted several times. BJP leader Ananth Kumar later stepped up the attack on the Congress by asking if Rahul or the prime minister was running the government.

Earlier in the day, Rahul met Prime Minister Manmohan Singh, apparently to discuss the Lokpal Bill.

MPs seek debate under Rule 193

Doctors examine Anna Hazare
Doctors examine Anna Hazare at the Ramlila Maidan.

As the Lok Sabha session began on Friday, Congress MPs Jagdambika Pal, Anu Tandon and Sanjay Nirupam gave a notice to Speaker Meira Kumar, seeking a debate on the Jan Lokpal Bill under Rule 193.

This was after Parliamentary Affairs Minister Pawan Bansal expressed doubts whether a debate could take place on Friday as there was no notice for it.

The government had on Thursday agreed to a debate on three versions of the Lokpal Bill in Lok Sabha, giving rise to hopes of a resolution of the ongoing crisis.

Hazare’s team has demanded a Parliament debate under Rule 184, which allows voting.

Team Anna’s draft resolution for Parliment

Supporters of Anna Hazare
Supporters of Hazare in New Delhi.

Hazare’s team has proposed a resolution for Parliament. It reads as:
1) A Lokpal Bill shall be passed by Parliament in the ongoing session, which will set up an independent Lokpal institution at the Centre and an independent Lokayukta institution on the same model in each state.
2) The House further resolves that Lokpal shall have jurisdiction over all public servants at the Centre and the Lokayukta shall have jurisdiction over all public servants in respective states.
3) Such law would require that all government departments make Citizens’ Charters to give information about which public-dealing work being done in how much time and by which officer. Violation of the Citizens’ Charter shall be penalised by Lokpal or Lokayukta.

Anna writes to PM
Hazare also wrote a letter to the prime minister, which was taken to him by Union Minister Vilasrao Deshmukh. The highlights of the letter are:
– I am not sitting on a fast for serving my selfish purpose. I am just a common man and I want to help the poor people of this country. I have no partaking in power politics.
– Our movement is not against any person or any party. We want to fight and remove corruption. During this movement, if anything said by any of the team members has hurt your sentiments, then I apologise on their behalf.
– The common man is getting affected on a day-to-day basis due to corruption.
– (Mentioning the three demands on Lokpal Bill) If these can be accepted by Parliament, I will end my fast. Else I will keep sitting at Ramlila Maidan.

Govt wants assurance from Anna

Supporters of Anna Hazare
Supporters of Anna Hazare shout slogans outside the PM’s residence.

The government has sought a concrete assurance from Hazare that he will break the fast after Parliament takes up his Jan Lokpal Bill.

Congress MP Sandeep Dikshit, one of the negotiators for the government, said Hazare should keep the sanctity of his fast and stick to his words.

“This hunger strike has been an ideal for all. Anna is kind-hearted, I appeal to him to break his fast. He had said he will end his fast as the discussion begins. Since everybody is ready for the discussion, he should end the fast,” he said.

Ministers continue with meetings
Law Minister Salman Khurshid met Finance Minister Pranab Mukherjee to discuss a way out of the deadlock. “We want a collaborative, cooperative resolution in the House. The whole House must be party to it,” Khurshid said.

Team Anna meets Left leaders
A day after meeting the BJP top brass, Hazare’s team met CPI(M) leaders on Friday.

“We are going back to all political parties to ask which provisions of the Lokpal need more clarification,” said Bedi.

After meeting CPI(M) leader Prakash Karat, Bhushan said, “I have given clarifications that the CPI(M) sought. The party has indicated that they by and large support the Jan Lokpal Bill.”

COURTESY: INDIA TODAY

Unlikely Echo of Gandhi Inspires Indians to Act

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SOCIAL ACTIVIST ANNA HAZARE

In a “new” India often obsessed with wealth and status, where cricket batsmen and Bollywood movie stars are wildly idolized, Anna Hazare is a figure from an earlier, seemingly discarded era. His pointed white cap and simple white cotton clothes evoke a Gandhian simplicity.                                                                                   His rural, homespun demeanor ordinarily might elicit snickers from India’s urban elite.

Supporters of Anna Hazare at a rally in New Dehli on Thursday. Mr. Hazare is expected to lead a hunger strike and mass protest.

Yet Mr. Hazare, 74, has emerged as the unlikely face of an impassioned people’s movement in India, a public outpouring that has coalesced around fighting corruption but has also tapped into deeper anxieties in a society buffeted by change.

His arrest on Tuesday, made while he was en route to a park in New Delhi where he intended to commence ahunger strike as part of his anticorruption campaign, drove thousands of people onto city streets across India. Under public pressure, government officials tried to release him within hours, but Mr. Hazare refused to leave jail unless the government released him unconditionally. On Thursday, the two sides reached a compromise, and Mr. Hazare is expected to leave jail on Friday to lead a hunger strike and mass protest in central New Delhi to push his demand that the government create a powerful, independent anticorruption agency.

The popular outpouring he has set off has inevitably drawn comparisons with the democratic uprisings of the Arab Spring. Most analysts agree, though, that India’s moment is a different one. But in its own way it may prove to be no less important.

India already has the democratic freedoms sought by protesters in the Middle East and North Africa and has enjoyed rising global influence after two decades of fast economic growth. Yet India is also experiencing what one observer has called a “churning” period, as public frustrations are boiling over about poor roads, shoddy schools, inflation, rising inequality and the pervasive reach of official corruption.

Running through each of these issues is a deepening public disillusionment with India’s political process and a growing disconnectedness between the governing class and the governed, making the corruption issue especially explosive. As the crowds supporting Mr. Hazare grew larger and more passionate this week, person after person seemed to arrive on the New Delhi streets carrying their own tale of official graft.

“It is the middle class who is worst affected by corruption,” said Asha Bhardaaj, a woman who traveled more than 30 miles from the suburbs to join a rally. “The upper class is not affected. The upper classes can get what they need by paying money.”

Mr. Hazare’s appeal seems partly rooted in the traditional values he embodies. He is a longtime social activist who has campaigned against corruption for nearly two decades in the state of Maharashtra, living off a military pension and financing charitable work through donations. If his clothes evoke Mahatma Gandhi, India’s founding father, then so do his protest tactics of nonviolent hunger strikes and peaceful marches.

Yet Mr. Hazare and his advisers have also proved adept at the necessities of modern politics: they have adroitly outmaneuvered the police and government officials who sought to defuse the anticorruption movement, after the decision to arrest him backfired dramatically. They also have exploited the nonstop, often sensationalistic coverage on India’s television news outlets to build public support for their cause. Mr. Hazare’s face is now visible in almost every corner of India.

Mr. Hazare and his advisers — a group of prominent lawyers and social activists nicknamed Team Anna — have spent months campaigning across the country. His aides distribute a flurry of daily e-mail updates to journalists, and his close advisers have used social media to connect with young followers. Early Thursday, one adviser, Kiran Bedi, used Twitter to announce a breakthrough in negotiations with the authorities.

Later on Thursday, Ms. Bedi released a video of Mr. Hazare made inside Tihar Jail, where he is being held. “I got my energy after seeing the young protesters,” he said. “Today is only the third day of protest. I can continue like this for another 10 or 12 days more.”

The governing Indian National Congress Party, by contrast, has seemed rattled, unprepared for the public anger against the government and incapable of delivering a consistent counterargument. One party spokesman personally attacked Mr. Hazare, describing him as a corrupted figure, while another spokesman blamed the United States for supporting the anticorruption movement.

“This is a moral moment,” said Jayaprakash Narayan, a social activist in the city of Hyderabad. “Everybody is sick and tired of corruption. And in dealing with this, the government has shown no political sense at all. There is a lot of anger in the country, not only to end corruption but to end politics as it is conducted today.”

Mr. Hazare was born Kisan Baburao Hazare in 1937 in rural Maharashtra. He still speaks Marathi as his primary language and eventually assumed the name Anna. Beyond his admiration of Gandhi, Mr. Hazare drew inspiration from Swami Vivekananda, a prominent reformer during the 19th century. Having stumbled across the teachings of Vivekananda while serving in the Indian Army, Mr. Hazare decided to dedicate his life to public service after narrowly escaping death while posted on the Pakistan border, according to his official biography.

He served 15 years in the military, qualifying for a pension, and retired to Maharashtra to take up social work. He was awarded two of India’s highest civilian awards for his work, which includes drought-relief efforts and working to create a sustainable Gandhian “model village.”

By the 1990s, Mr. Hazare had begun staging hunger strikes in Maharashtra to pressure state officials linked to corruption. Several were ultimately removed from office. At one point, countercharges against him claimed that money from one of his trusts had been used to pay for his birthday celebration. A government-appointed commission concluded that the money was improperly spent, but Mr. Hazare was never implicated in any personal corruption.

His national profile has risen sharply since this spring, when he came to New Delhi to begin a hunger strike demanding that the government introduce a bill in Parliament to create the anticorruption agency, known as a Lokpal. When thousands of people unexpectedly came out in support, government officials invited Team Anna to join a special committee drafting the Lokpal bill.

For several weeks during the early summer, Mr. Hazare was a periodic visitor at a government guesthouse in New Delhi while attending committee meetings. During an interview in early June, he often spoke with dramatic flourish about the need to eliminate corruption, while also predicting that people would support him again, if necessary.

“I’m confident that people will stand up again,” he said. He had been traveling the country, appearing at rallies to gather support for a Lokpal. “Yes, I feel empowered,” he said in June. “It happens because a large number of people are standing with you. Otherwise, what do I have? I’m a beggar. I live in a temple. I do not have a bankbook. I have only a plant and a bed.”

His methods and goals have not impressed everyone. Critics accused him of trying to hijack the democratic process through protest pressure tactics. Others warned that the type of Lokpal he envisioned could upset the balance of the country’s democratic institutions and accused his group of refusing to compromise.

Ultimately, negotiations broke down in June on the Lokpal legislation. The government has since introduced a bill in Parliament during the current session, but Mr. Hazare has criticized it as too weak. This week, he came to New Delhi to begin another hunger strike when the police arrested him.

Under the compromise reached for his release, Mr. Hazare agreed to limit his hunger strike to 15 days, and the police said they would remove their original restrictions on the number of supporters allowed to attend the protest.

Outside Tihar Jail and elsewhere in the city, people have chanted Mr. Hazare’ s name and voiced anger over the pervasiveness of corruption in daily life. One college student complained that rich families are able to buy admission for their children to top colleges. A man who has a trucking business complained that he had to pay a 10 percent bribe to a petty official in order to get a certificate proving he paid a transport tax on his vehicle.

“Today, when we were coming, a traffic cop stopped our vehicle and suggested that we shell out some money,” said Ajab Singh Gujar, the owner of the trucking business. “I shouted, ‘Victory to Anna Hazare!’

“The cop immediately allowed us to pass through without any bribe.”

COURTESY : NEW YORK TIMES