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Constitution versus Reality in India

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PREAMBLE OF INDIAN CONSTITUTION

India has been surpassing or probably under-passing the vast public upsurge and constitutional multi-interpretations these days.

Our preamble of the constitution says “we the people of India adopt enact and give to ourselves this constitution” and at the same time it’s also said that “the parliament is supreme”. Now the crisis arises, who is supreme? “We the people” or “the parliament (which is elected by we the people)”?
But again, another question arises, who constitutes “we the people”. I? you? They?, who??
Did the crowd of people gathered in Ramlila grounds few days back, or the crowds in various other cities of the country, or the total of them combined, qualify to be called themselves as “we the people”?
May be “yes” may be “no”.
But let’s think again, who was supposed to be “we the people” during the time when this constitution was enacted in India? It will be quite indigestible to accept that the millions of illiterate, poor and starving population, who constituted almost 90 percent of Indian population during the time of enactment of this constitution, were aware of the literatures inside it. The constitution had the sanctity of “we the people” not on it’s technical provisions, but on its moral grounds, of it being designed and compiled by “our government” and not “the British”. Moral beliefs, that this constitution being made by “our” parliamentarians is “ours” and hence will work for our upliftment and empowerment; that this constitution will never defy our rights of living a happy life as the British did.
An extraordinary interpretation of the constitution by the Supreme Court of India said, “The basic structure” of the constitution can not be changed. So a new group of words “basic structure”! What is it? Basic structure refers not to the technical grounds of the write-ups in our constitution, but to the moral grounds of it; and the moral grounds of our constitution refers to the same degree of belief that “we the people” had during the time of its enactment.
The Anna hazare blow, which spread like a jungle fire in India, a few days back, made it very much clear that there is a widespread trust deficit regarding the holiness of our parliamentarians. The declination of the politician’s status has not been sudden, rather episodic. It has not only been the recent exposure of scams that fuelled the masses but also the irregularities prevailing in the government offices since the time our government took over from British.
They called it “the second fight for independence”. Was it?
This mass eruption of public anguish was, in a way, designed and planned by our constitution; after all it was not indigenous, it is a blend of copies of the constitution prevailing in western world, largely USA and UK. Not doubting of the great work of Baba Bhimrao Ambedkar, because it was the only option available with us after the British sucked off the majority of our physical and intellectual resources to the level of starvation. The constitution we adopted was no doubtably a good base for us to start with, but we missed “Indianizing” it sufficiently.
Even though we added directive principles of states policy in our constitution, we have been sluggish in implementing it. Didn’t we miss the level of accountability and cross-interaction of people with governance as it was during The great emperor Ashoka’s reign? Didn’t we miss out the mechanisms to judge the morality, holiness and capabilities of a “mantri”(minister) before assigning him the seat as was mentioned in kautilya’s Arthashashtra? Didn’t we miss the mechanisms adopted by The great Guptas, who almost proved their reign to be in comparison with the reign of The great Lord Ram?
India’s glorious history has not been only gold and diamonds, but much more than it, we told the world how to administer such a large area of land with the highest degree of happiness, faith and trust; and it’s a strange irony today that we ourselves have lost a grip on it.
The British with about 200 years of colonial exploitation tried to flush out all our glorious legacies including gold and diamonds, and embedded a new terminology in our dictionary called “British legacy”. I call it a “British interference”. It’s the result of the same “British interference” which made us loose our links with our glorious legacy of administration.
In my school exam, I once copied an answer from my neighbor’s sheet, the teacher while checking the papers asked me to stand up, gave me my answer sheet and told me to explain the meaning of that answer. Reluctantly i tried to explain it in my words, but was constantly looking here and there in panic and was praying for no cross questions. I am sure I was neither able to understand nor explain completely what I had written.
Is the situation same here? Here in the parliament?
Justice Saumitra sen, being in the middle of the way of his removal through the parliamentary procedures, offers his resignation, leading again to a debate whether to his removal proceedings should still be processed or it should be suspended out? Who knows the answers?
We the people? The parliamentarians? Or the mentors of the original constitution?
Or if no one knows, let’s give it to the Supreme Court to think about what our basic structure of constitution says.
There are laws prevailing in our country which still insist on payment of penalties of some 10 rupees for certain crimes. Who will give an explanation to it? The Supreme Court?

I am afraid it may not.

Is it high time we make a substantial change in our constitutional books and encrypt the basic structure of governance as it was in our legacy?
India is not merely a head count of 1.2 billion people, neither it’s only some thick books of history, nor is it only the 7thlargest landscape in the world. India is in blood of its people, and that blood runs from the great lord ram to Guptas, Marathas, cholas, chalukyas and Mauryas; and Indians will not accept any other form of governance except what they have been offered in the ancient past. The recent mass Indian upsurge with its active interference in parliamentary affairs has yet been an example for it.
Calling it the second war of independence?
It is said, defeating “your enemies” will give you physical independence but defeating the “enemies in you” gives you total independence. So calling it the first war of independence, too holds a strong justification.
But the question still persists, was this rise for a war of independence, or rather a yet another stronger demonstration of the episodic resentment? Will the “British interference” still cast its shadows on our constitutional provisions? Or the gestation period “Indianization” is over?
India will surely and compulsively modify its long hailed constitution to offer the basic structures of it in genuine reality. The time seems close. But may not be close too.
COURTESY: OYE TIMES

Aiming high in the 12th Plan

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PLANNING COMMISSION DEPUTY CHAIRPERSON

The Planning Commission, under the chairmanship of Prime Minister Manmohan Singh, has fixed an average growth target of 9 per cent for the 12th Five Year Plan (2012-17), the same as the one set for the 11th (2007-12). The identical growth targets for the two successive plans ought not to hide the fact that there have been changes in the macroeconomic environment in the meantime. It is not that that India’s growth trajectory that looked very promising — at one point in time the Prime Minister was visualising a double digit growth rate — has suddenly nose-dived. Rather, it is a change in the sentiment both within the country and outside that has made the achievement of a 9 per cent growth look daunting and contingent on the government taking some “difficult decisions.” Economic growth in the United States and Europe has petered out and there is a real danger of major economies slipping into another recession. India’s growth slowed to 6.7 per cent in 2008-09 after exceeding 9 per cent for three consecutive years. Since then, it has ranged between 8 per cent and 8.5 per cent, which is still respectable in relation to what obtains in most other countries.

Yet the outlook for the current year has changed for the worse in the eyes of most forecasters. It is not just the external environment, but also the policy drift and indecision in government in recent months that have dampened sentiment. Improving governance will be a critical and necessary condition for growth to accelerate. Unfortunately the Planning Commission has been silent on the many issues that are crying out for reform. The approach paper ought to have been the forum for initiating debates on the more politically difficult subjects of reform. Fiscal consolidation, achieving a sustainable balance of payments position, and boosting productivity in agriculture and industry have remained unexceptionable goals. Fiscal prudence is absolutely necessary for long-term stability without which higher growth rates are not possible. Although the size of the current account deficit is estimated to be well within the prudential range of 2.5 per cent to 3 per cent of the GDP, the financing requirements are large, and at the current juncture, policymakers cannot take capital inflows for granted. Finally, monetary measures to curb the persistent inflation will necessarily entail sacrificing some of the growth momentum, at least over the short-term. Will the targeted 9 per cent growth be as elusive as the double digit growth was during the 11th Plan?

COURTESY: THE HINDU

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

Centre Justifies Keeping CBI, NIA Etc Out Of RTI Act Ambit

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Terming the right to information as “not an absolute one”, the Centre defended in the Delhi High Court its decision to keep key probe and intelligence agencies like CBI, NIA and NATGRID out of the transparency law ambit, asserting that it was “in larger public interest and in the interest of national security.”

In a 16-page affidavit submitted to the bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna, the Ministry of Personnel justified its decision to keep various investigating and intelligence agencies out of the Right to Information Act purview, citing the need to strike a balance between “transparency and the security and well-being of the nation.”

“It is in the larger public interest and in the interest of the national security that CBI, NIA and NATGRID have been included in the second schedule to the act,” the Centre said in its affidavit submitted to the court in reply to the court notice over a public interest plea, challenging the exclusion of CBI etc from the RTI Act ambit.

“The right to information is not an absolute right.

There is a need to ensure the security of the nation, which should not be jeopardised due to disclosure of information under the transparency law,” said the Centre.

“It may be stated that the RTI Act requires a balance to be maintained between transparency and security and well- being of the nation. The three organisations have been included in the second schedule to the Act for maintaining such a balance,” it added.

The affidavit by the Ministry of Personnel said the government decided to keep CBI out of the transparency law ambit on a agency’s representation which was throughly examined by a committee of secretaries.

“This has been primarily done to ensure that the interests of the security of the state are not overlooked while protecting the rights of the citizens to seek information,” the affidavit said and sought the PIL to be dismissed with cost.

While refuting allegations that exemption had been granted to hide information and make CBI etc opaque organisations, the ministry said these organisations were not excluded from the RTI Act ambit to protect any guilty employee, officer, minister and other authorities.

CBI, meanwhile, in a separate affidavit to the court, pleaded disclosure of information had been hindering its functioning.

Citing a list of sensitive cases, including the assassination of former Prime Minister Rajiv Gandhi, Navy War Room leak case, IC 814 hijacking and Bombay blast, CBI said it has been handling several “sensitive cases pertaining to the national security and the disclosure of information about them would jeopardise the functioning of the agency.”

The Centre and CBI had filed their replies in response to the court notice to them on two separate PILs, filed last month by lawyers Sitab Ali Chaudhary and Ajay Aggarwal against the June 9 decision of the union cabinet exempting CBI, NIA and National Intelligence Grid (NATGRID) from the purview of the RTI Act.

Anna writes to PM, says if not helped, he will court arrest on Aug 16

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Anna Hazare and his team have rejected Delhi Police‘s conditional permission for his August 16 fast over Lokpal Bill. Expressing his unhappiness, Hazare has once again written a letter to Prime Minister Manmohan Singh. “If you can’t help us, we will court arrest,” he has said in the letter.

The 74-year-old Gandhian wants to begin an indefinite hunger strike at the Capital’s protest hotspot Jantar Mantar. But he was denied permission for this venue. The Delhi Police instead said he could hold his fast at Jai Prakash Narain Park. The permission, however, is conditional – only 5000 people will be allowed to gather and they will have to vacate the venue by August 18. Rejecting these restrictions, Team Anna said today, “We cannot control the number of people since it is an indefinite fast. We will decide where to hold the fast. Police may arrest us.”

“Can’t our PM get us a location to protest peacefully,” Hazare asks Dr Singh in his letter. “People say your government is the most corrupt. Because of what’s happening in the government, America intervened in our matters. If you can’t help us, we will court arrest on August 16,” he has further added. (Read Anna’s full letter)

Addressing a press conference this evening, Mr Hazare said that the government is curbing free speech and is creating an Emergency like situation.

Mr Hazare said that he is running from pillar to post for a venue for the fast and that he has written to the Prime Minister requesting him to allot a venue for the fast.

Yesterday, Home Minister P Chidambaram requested Anna Hazare to call off his hunger strike. “Everyone has a right to protest. But the context and circumstance decide whether the protest is legitimate or not. When there was no Lokpal Bill, the protest was justified. But now that there is a Bill in Parliament, and the Standing Committee has asked Anna Hazare to testify, the protest, at this stage, seems to be unjustified,” Chidambaram said.

On charges of not providing Jantar Mantar (in New Delhi) as a venue for Team Hazare’s agitation, Chidambaram had said, ”Anna’s is not a special case. Jantar Mantar cannot be given for long protests or to one group alone. As there are many other people with causes, the day has to be divided and the group given slots.”

The Lokpal Bill, which was introduced in the Lok Sabha on August 4, has been sent to the Parliamentary committee for its consideration. But its draft did not include several key suggestions made by Team Anna. Earlier this week, the panel had invited Hazare for the discussion in yet another bid to strike an understanding with civil society activists.

The Lokpal Bill provides for the establishment of the institution of Lokpal, or ombudsman, to fight corruption in public office. Hazare and four of his nominees were initially invited by the government to help draft the new Bill, along with five ministers. The elected and non-elected teams of representatives clashed bitterly, and ultimately produced two dramatically different versions of the Bill. But the government chose to introduce its version of the Bill in Parliament. In this version, senior judges and the PM are exempt. Team Anna has accused the government of “betraying” the nation by delivering a Bill incapable of really taking on politicians or public servants over corruption.

Kasab ka Hisaab – Beyond the Death Sentence

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Mehak Budhrani in The Chakra

This century, the word ‘K’ has dominated India in the arenas of Business, Government and especially Television. But only one ‘K’ shook India within hours – “Kasab”, the only surviving terrorist of 26/11. On the night of November 26, 2008 a war against India was waged which went on till the afternoon of November 29. Only Kasab was captured alive while the other nine terrorists were killed by the security forces. The Kasab trial went on for two years before a death sentence was passed to him on five counts of murder, conspiracy to murder, waging war against the country, abetting murder and indulging in terrorist activities, on the 6th of May, 2010. Kasab was also awarded life imprisonment on five other counts, which included attempt to murder, criminal conspiracy and violation of the Explosive Substances Act. Under the law, death sentence awarded to an accused by trial court comes up before the high court for confirmation. The High Court confirmed the order passed by the trial court on 21st February 2011.

Until the verdict was passed, during the two years, there was a huge uproar among the Indians which was justified. A national newspaper reported that “The cash-strapped Congress-led Democratic Front government in Maharashtra has been spending well over Rs 2 lakh a day on India’s priciest prisoner”. (http://articles.economictimes.indiatimes.com/2010-05-05/news/27590949_1_arthur-road-jail-ajmal-kasab-jail-premises)

The Government of India gets money in the form of taxes paid by the citizens of India. The people were infuriated as to why their money was being spent for the protection and treatment of a perpetrator when there was enough evidence against him in the form of CCTV camera footage. The world witnessed the worst form of fear during 9/11. Osama did not go unpunished. He was brutally killed by the American Security Forces in Abbotabad, Pakistan. Don’t we wonder why Osama wasn’t given a chance to be tried by the American Jury? Then why is the Indian Government treating the Kasab issue so lightly? Shouldn’t he be dealt with in the same way the Americans dealt with their terrorist? But our Government claims that they are happy that Kasab was tried in a normal court of law and then given the death sentence. In a way, our democratic spirit is being enshrined.

Even though there was a sense of relief amongst the country and the families of those who were killed in the attack, when the death sentence was passed, there is another thought that confronts us. Do suicide bombers and terrorists really fear death? Kasab knew what he had come for and also knew his fate. Then will the death sentence create a sense of fear in his followers or will it make him a martyr? Surely such a subversive act must be punished in the most severe way. Special Public Prosecutor in the case, Ujjwal Nikam, opinionated that “Kasab is a killing machine and the manufacturing factory of such killing machines are still in Pakistan”. We all know that Kasab’s family was promised Rs 1.5 lakh for his sacrifice by the LeT. If such atrocious acts are awarded and such fanatics are treated as martyrs, then is a death penalty the right approach?

The passing of the death sentence opens up the following avenues for Kasab:

1. Appeal to the Supreme Court.

2. If the Supreme Court upholds the judgment of the High Court and the Lower Court, Kasab can file for a clemency plea to the President of India.

If Kasab files for a plea in the Supreme Court, and if the Supreme Court grants a life sentence, then will the Government spend some more money for the terrorist?

Capital Punishment in India is given in the rarest of rare cases. Currently, there are more than 100 people who have been awarded the death sentence but are in the queue to be executed.

Article 72 of the Indian Constitution gives the President the powers to reduce the sentence or grant a pardon to a convict, especially those involving capital punishment. According to the Ministry of Home Affairs, between 1995-2006, the President has rejected seven mercy petitions and commuted two, while between 1985 to 1994 it rejected 41 mercy petitions and commuted four. As many as 173 such petitions were received between 1975 to 1984 of which 121 were rejected and 52 commuted. However, a maximum of 543 mercy petitions were commuted between 1965 to 1974 during which 491 such petitions were rejected. According to Amnesty International figures at least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced to death (but not yet executed). Looking at these figures, if Kasab is given an option to ask for mercy, how long will it be before he recompensates for his doings? The procedure for a Clemency plea (mercy petition) is long before final justice actually takes place. The clemency plea could lead to:

1. Grant of Pardon

2. Rejection of Plea

This again would put Kasab in the queue before the other convicts are executed. This is now a political issue as we have to wait and watch if the Government of India executes this sentence expeditiously or will allow the queue system to continue.

The question to raise here is, is a death penalty or a life sentence enough for Kasab or should he be treated as mercilessly as he acted? Is this act of leniency on part of the Government of India assuring terrorists such as Kasab that they will be treated ordinarily and hence lead to recurring attacks? These issues are yet to be dealt with and answers awaited for. But the real issue which needs to be highlighted is that, is the death penalty really a deterrent for any terrorist?