Supreme Court wants basic facilities for pilgrims visiting Ayodhya – Harish V. Nair

Ram Temple on the Babri Masjid site after the demolition.

Ram Lalla Virajman“It is to be noted that Swamy had, in August this year, urged PM Narendra Modi to initiate steps to rebuild the Ram temple in Ayodhya by 2016 and ‘fulfill the party’s commitment to the electorate.'” – Harish V. Nair

The political, socio-religious and legal controversies surrounding the Ram Janmabhoomi-Babri Masjid may be lingering on for 23 years after the demolition of the mosque by Hindutva forces.

But even as petitions filed by Hindu and Muslim organisations—which challenged the Allahabad High Court’s verdict of dividing the disputed site into three parts—are pending, the Supreme Court on Friday ordered the Uttar Pradesh government to provide basic facilities to pilgrims thronging the makeshift sanctum sanctorum of an idol of Ram Lalla installed at the disputed spot in 1992.

“Why some facilities cannot be given? Is there any problem? Just do something if possible till some final order is passed,” a bench of Justices Anil R. Dave and Kurian Joseph told the Uttar Pradesh government on a petition filed by BJP leader Subramanian Swamy.

Quoting a reply he has received after filing a Right To Information (RTI) application, Swamy said the Uttar Pradesh government quietly earned a whopping Rs 300 crore from pilgrims in the last 23 years.

Swamy wanted the court to issue a directive to the state government to explain what they had done with the money so far.

“Every day thousands of devotees visit the place for darshan and pooja of the Ram Lalla, but the government has not provided basic minimum facilities like drinking water or toilets to them…. The RTI reply says the government has so far earned approximate Rs 300 crore from entry tickets. Where has this money gone? What has been done with it?” asked Swamy.

Subramanian SwamySwamy wanted the apex court to issue a directive to the state government to explain what they had done with the money so far.

In his application, he had sought an order from the apex court to “ameliorate millions of Hindus who make the pilgrimage to the site of the Ram Janmabhoomi at Ayodhya, to have a darshan and perform puja”.

Swamy said the status quo order passed by the SC in 1996 was limited to prohibit building of any structure at the disputed site, but there was no bar in constructions to facilitate amenities for pilgrims visiting the place.

Justice Dave assured Swamy said he would hear the petition along with the petitions pending in the court filed in August 2011 by Ram Janmabhoomi Samiti and Sunni Waqf Board, challenging the Allahabad HC verdict of a three-way division of the disputed Ram Janmabhoomi-+Babri Masjid site.

The high court had directed that the controversial land of 2.77 acres at the site be divided equally among Hindus, Muslims and Nirmohi Akhara—the parties to the suit.

A Vishwa Hindu Parishad (VHP) functionary has sought the RTI information about arrangements at the Ram Janmbhoomi Complex from the receiver of Ram Janmbhoomi and Divisional Commissioner of Faizabad.

It is to be noted that Swamy had, in August this year, urged PM Narendra Modi to initiate steps to rebuild the Ram temple in Ayodhya by 2016 and “fulfill the party’s commitment to the electorate.” – Mail Online, 7 August 2015

Ayodhya Pilgrims

“Modi will recover black money from abroad,” says Gurumurthy – Shobha Warrier

S. Gurumurthy

Swaminathan GurumurthyShobha Warrier, convener, Swadeshi Jagran Manch, launched his investigation into black money in 1986.

He was a member of the task force created by Bharatiya Janata Party leader L. K. Advani just before the 2009 election. The BJP had promised then and before the 2014 election that it would bring back the black money stashed away in various banks outside India if it were voted to power.

HSBC Bank, Geneva, SwitzerlandWhen the Narendra Modi government informed the Supreme Court that it could not disclose certain details about black money because of the double LGT Group Logotaxation avoidance agreement India had with certain countries, it angered lawyer Ram Jethmalani, on whose plea the Supreme Court had constituted a Special Investigating Team on black money. Jethmalani accused the Modi government of toeing the United Progressive Alliance line.

In this exclusive interview Gurumurthy explains his expectations of the Modi government on the black money issue. – Shobha Warrier

In 2009 when we met before the parliamentary elections, you had just submitted the task force report on black money to Mr Advani. Did you continue with your investigation even after the BJP lost the elections?

• Let me first talk about the initial hurdles in pursuing black money. There was an opinion among many leaders that there was no black money at all. [Former Union minister] Jairam Ramesh openly said it was complete nonsense. First the Congress said there was no black money, then they said there was no black money of this kind. Such opinion was shared even among some in the National Democratic Alliance.

Leaders from the BJP too?

• Yes, there were some BJP leaders. They genuinely felt there was no black money. That is also because some of them could not understand that black money was not kept as currency. So the initial difficulty that had to be crossed after submitting the task force report, was making people agree that there was black money.Sonia-G world's fourth richest politician ! When Advani started talking about it strongly during the elections, it became a public issue. Unless something becomes a public issue, it will never be an issue at all. Because of the elections, it got enough publicity.

Pictet & Cie Bank, Zurich, SwitzerlandWhen it became an issue, even [Congress President] Sonia Gandhi had to come out with a statement that they would bring black money from abroad. Then [then prime minister] Manmohan Singh had to repeat it.

Thus, it became an issue common to the political system. Till then, it was resisted. This was the biggest public hurdle that had to be overcome.

Today, no political party can say that black money is not an issue; it has become a national issue. Who drives it, who is more sincere, who has more commitment, is a different issue.

Was it not a global issue by then?

• At the 2010 G-20 meeting, France and Germany took it up and said that casino capitalism was the product of the Anglo-Saxon economic model. It was the first time in the history of the world that a virtually racial term was used to describe economic behaviour.

They said this model fostered tax havens as respected, accepted and legitimate. France and Germany said, unless you take on the tax havens and the secret banking system, they would walk out of G-20. So America had to cave in.

Unless you understand the functioning of the global financial system and the role of secret money in it, you will never be able to understand the forces that prevent the campaign and exposure of black money.

The global GDP is about $72 trillion and the high net worth individuals’ wealth is $54 trillion out of which $20 trillion is called offshore money. Offshore money is nothing but secret money.

We must understand that this does not mean cash alone; it is in the form of shares, real estate, bonds, yacht, ships, companies, gold, platinum. So this $20 trillion also is in the form of government bonds especially in America.

Much of this $20 trillion black money is from Asia and Africa. This is what drives the American stock market. And 55 per cent of American families are hooked to the stock market and nearly 60 per cent of retirement benefits and pension funds are invested in the stock market. It was less than 10 per cent in 1980 and gradually all the monies shifted from the bank to the stock market.

This connection of black money with the American stock market was what France and Germany resisted. They wanted the secrecy to be broken open.

International Black MoneyThat was how what we have been trying to do got global recognition. The black money issue can ever be tackled at home. After 2010, the world began to view it as a menace, but only as tax evaded money. But it is not only tax evaded money but it is money taken out of the country.

So the difference between black money in India and the black money out of India is, in India, it is tax evaded money and Indian money outside India is not only tax evaded money, but money which has been taken out of India’s capital resources needed for India.

So it is not only tax evasion, but treason too.

Do you think all political parties are involved in this, and that is why they do not want to pursue this with enthusiasm?

• Not only politicians, but bureaucrats, businessmen, some even in the judiciary are also corrupt. Then there is also drug money, gold smuggling etc. Politicians, who have been in power for too long, can be involved.

Most politicians are locally corrupt and they keep the money here itself. There was a politician in Jharkhand who said, when questioned about corruption, “Did I put the money in a Swiss bank? I only invested here.” He implicitly claimed to be a nationalist in corruption.

The Global Financial Integrity organisation came out with a calculation that between 1948 and 2008, $500 billion [about 30 lakh crore] has gone out of India. And between 2003 and 2011, $350 billion [about 21 lakh crore] has gone out of India. Most of it had gone out of India after India liberalised the economy.

Are you connecting black money with liberalisation?

• I am not saying the economy should not be liberalised. But there is a connection. It allows people to have more opportunities to spirit away money. There is no safeguard.

The Foreign Exchange Regulation Act is not there. The money laundering law, not in effective form, came too late. The threat of arrest is not there.

What I want to say is, it is now certain that funds have gone out of India and what has gone out of India is not a very small amount, but very large.

Also, it is not a one nation’s problem, but a global issue. It means we can form global partnership and pursue this money.

Is it possible for countries to take black money back?

• By legal action, money siphoned off by Ferdinand Marcos of the Philippines has been recovered. African dictators’ money has been recovered. It is possible to recover. But I don’t think our income tax department and Enforcement Directorate can do it because it consists of people who have colluded with these things.

The only possibility is that our intelligence agencies must be used for this purpose.

First, you must get clues, vital leads, names of the account holders and bank names. Only then you can start legal action.

When you were with the task force, could you get all these details, like the names of people and banks?

• We could get information, but only in respect of businessmen and not those of corrupt politicians.

Narendra ModiIn my view, this government must act and it has the opportunity to act. They have got to put together a set of very committed people with passion who will go about with this task.

I am sure Narendra Modi is quite keen about it. I have absolutely no doubt on that aspect.

At present, he has too many things to handle and I am sure he must be thinking about how to handle this. The matter is also with the Supreme Court.

The Supreme Court had constituted a SIT on black money on Ram Jethmalani’s plea. He accuses the Modi government of protecting the culprits. He said the Modi government is following the UPA path when it refused to divulge the names to the Supreme Court citing the treaty….

• There are two sets of names. In Liechtenstein Bank accounts, the German government announced that anybody could take the information, but the Government of India asked them to give it under the direct taxation avoidance agreement under which it is a secret. That’s why the Supreme Court asked why did they obtain it under a secret clause what is available in the open?

Ram JethmalaniBut the most important thing is the HSBC account particulars which we got from France. France got it from records stolen by a disgruntled employee in the HSBC bank in Switzerland. But the bank is in the Swiss jurisdiction. We got reportedly about 600 Indian names from France under the double taxation avoidance agreement.

The government view is that under terms of the bilateral the details can be disclosed it only after prosecution is launched. This is the claim of the government saying this is the international practice.

The other view is, with which I agree, is that in public court proceedings, the government can disclose the names. The government seems to say that the Supreme Court cannot over-rule the DTAA. But my view is no over-ruling is needed because the DTAA itself says that it can be disclosed in public court proceedings.

My view is when the court says the government has to disclose, it must disclose.

Yes, there are two views in this. Obviously, the bureaucrats will take a view which is very defensive and conservative. The more serious thing is they have filed an application saying the original order the Supreme Court had passed must be modified.

The original judgement says the government should not enter into any agreement with any country which says the information must be kept confidential and it is prohibiting the government from entering into inter-government agreement with the US for automatic and mutual sharing of financial information which is due in December

According to me, the government is wrong in filing this application because the DTAA with America specifically says you can disclose this information in public court proceedings. In my view, signing the inter-governmental agreement with America will not violate the Supreme Court judgment.

The perception among people is that the Modi government is not very enthusiastic about the black money issue and going slow like the UPA….

• I won’t take that view. Action to recover black money abroad will be in any way a slow process. It needs the world’s cooperation. The government has to create an atmosphere in which the world sees that the Indian government is keen on fast action.

Till the UPA was in power, the world had had a feeling that India was not keen to recover black money. This has to be reversed.

The first thing the government can do today is to expeditiously file prosecutions against people who have concealed the money in HSBC and disclose their names.

Recovering black money is a very strategic issue as the Indian government has to make alliances with many countries for which we took no efforts at all so far. This government can take these efforts because it has high level of influence with most of the countries. The credibility of this government is high.

Do you have confidence in this government that it would pursue the issue honestly?

• A hundred percent. This is going to be a very important agenda for Modi. He has made his intention clear to me many times before and after coming to power.

Modi may want to pursue it, but what about the others?

• There is no one in the government who can think otherwise if the most powerful person, the PM, wants action to recover black money.

In my view, Modi is the person who will do it. Others will fall in line, even if they genuinely doubt whether there is so much money.

• Finance Minister Arun Jaitley hinted that the name of a certain UPA minister is there. Is the issue only about UPA ministers and the Congress party? Is it not much bigger and deeper than that?

• He was talking about the 600 names in the HSBC list; he was not talking about the entire gamut of black money. He was actually answering the Congress which was taunting the NDA government for not acting on black money.

It was a political statement and that was needed because the Congress was trying to take advantage of the secrecy. That is why Jaitley said, be careful, you are likely to be embarrassed.

Do you think the Modi government will pursue the matter as seriously if there are names of politicians from the BJP?

• As yet, there is not even a suspicion of anybody from the BJP in it. So this is a hypothetical question. Even if somebody from the NDA is involved, public opinion and judicial opinion will force the disclosure.

L. K. AdvaniThe media must pursue it relentlessly. The problem is that some powerful sections of the media in India are also corrupt. If public opinion is generated, it will have its effect.

In spite of most media underplaying the black money issue and toeing the Congress, it has become an issue because it was made into an election issue by Advani. The credit for making it a huge public issue must go to Advani.

I am confident that the government will pursue the matter seriously. If not, people like us will not keep quiet. It is not to see the issue goes unattended that I have spent 30 years of my life on this. There are many people like me within and outside the system.

Have you got any startling revelations while pursuing the issue?

• There are many leads, but to give startling revelations, you need facts.

Without facts, you will be making allegations. I do not make allegations without facts. We can only go to a certain extent and after that, we have no powers to probe them. – Rediff, 27 October 2014

Supreme Court demands foreign account holder names

Legalism and Government Stand in Black Money Case – S. Gurumurthy – The New Indian Express – 30 October 2014

S. Gurumurthy“The government has concealed nothing from the SIT or the court. But the court rapped the government despite the government’s affidavit day before saying it has given all the names months ago. Neither the court nor the media is going to take back the strong comments. The damage is done. But morally, the Modi Government has won.” – S. Gurumurthy

Mukul RohatgiThe way the Supreme Court slammed the government on October 28 for not disclosing the names of black money holders given by the French government is like the classic case of both eating 100 onions and taking 100 lashes when the option was given to a person to do either of the two.

The short story of this paradox is this. The Supreme Court, moved by a public interest petition filed by Ram Jethmalani in 2009, delivered its judgment in July 2011, directing the government to appoint a Special Investigation Team (SIT). It was to be headed by two former Judges of the Supreme Court and consisted of the enforcement and intelligence agencies to probe the issue and recovery of huge black money suspected to be stashed away by Indians abroad.

The estimate of the rogue money, according to Global Financial Integrity (GFI), was $500 billion till 2008 and still counting. The UPA government, which had received information from Germany about black money account holders in Liechtenstein Bank and from France about such account holders in HSBC Bank in Geneva, was dodging the court’s insistence to disclose the details. It was taking refuge in some provisions of the Double Taxation Avoidance Agreement (DTAA) under which it said it had received the information. This forced the court to direct and get the government to disclose the Liechtenstein Bank details to the SIT. But before the court could direct the government to give details of HSBC account holders, the government filed a review petition asking the court to take back the judgment. After that the matter went into hibernation till it came back alive when the new government took over. The very first act of  Modi Government was to appoint the SIT – which the UPA was stalling – to which all investigations of black money stood transferred under the court’s orders. When everything seemed to be going well, the Finance Ministry filed an application on October 15, asking the court to vary its judgment of July 2011 since the government was advised that the direction of the court to disclose names overriding the DTAA was impeding the government’s efforts to secure an Inter Governmental Agreement (IGA) with the US for exchange of banking information. The IGA had the same provisions regarding disclosure as the DTAA with the US and most other nations.

The government said that since court orders seemed to prevent the government from signing the IGA with restrictions on disclosure, the judgment needed to be recast. Many, particularly Ram Jethmalani and others, who had worked on the black money issue for years, saw in this effort the same stonewalling which the UPA Government was doing to block the black money probe. The government’s October application lacked a sense of timing and ran contrary to the sentiments of its supporters on black money recovery agenda. Hell broke loose. Critics and friends alike began drawing parallels between the UPA and the NDA regimes, and sceptics began to feel that one was not different from the other. The ill-conceived and ill-timed application made everyone feel that this government too wanted to protect the black money holders.

But the facts were the other way round, as the clarification affidavit filed by the Finance Ministry on October 27 revealed. The affidavit unfolded how the government had not only been transparent with the SIT appointed by the court but also had been following its directions. The affidavit asserted that a complete list of cases where information had been obtained from the German and French governments, with the status of the action taken by the government was submitted by the Central Board of Direct Taxes on June 27. It added that the CBDT officials also met and briefed the SIT on the status of the cases, background of the information received, non-sharing of information by Swiss authorities, and constraints faced by the government and alternative methods of securing account details.

Arun JaitleyShockingly, his disclosure of how transparent the government had been and how it had parted with the details to the SIT was not mentioned when the Finance Minister briefed the media two days later on October 17, when already its critics and some friends had begun saying that the present government was no different from the UPA.

The Finance Minister’s briefing took the position that the DTAA prohibited the disclosure of information received under its provisions till the prosecution proceedings were started. This was precisely the argument of the UPA, which the Supreme Court in its judgment of July 2009 had overruled. This coupled with not mentioning that the government had already parted with the details to the SIT proved to be a disaster. In the huge negative publicity, the further affidavit of the government, which claimed that the list of names had been given to the SIT was not noticed at all.

In this situation came the application filed by the government asking for modification of the July 2011 judgment. The Attorney General did not sense the mood of the court and the nation, of course, and set out on legalism to justify the application, which the AG himself had personally approved. The fact that the government had already given the details was lost in the din. The court ordered the government to give the details in a sealed envelope to the court on October 29.

Did the AG tell the court that the details are already with the SIT? Even if he had, it was lost in the legalistic arguments on how justified the application for modification was. The result was bad imaging of the government in the court and in the public domain. Result, the government, which had already disclosed the details to the SIT, got a drubbing for not disclosing it – precisely like eating 100 onions and taking 100 lashes instead of either.

But even the AG’s legalism seems to be wrong. The hard fact is that the DTAA with France does not prohibit disclosure of information on the account holders in HSBC received from France in public court proceedings. The DTAA with France disciplines the disclosure of information received by India under it thus: One, the information shall have the same confidentiality as under India’s domestic law, that is the Income Tax Act and the Right To Information Act read together.

Two, if originally the information was secret in the hands of France (the sender) it shall be kept secret by India (the receiver). Apply the two norms now. First, the Income Tax and the RTI law permit disclosure and so no secrecy attaches to the HSBC details under the Indian law.

Next, the French got stolen information about bank account holders in HSBC in Switzerland. It is therefore not a secret in sender France’s hands. It is secret only in Switzerland. So under both the norms disclosure of HSBC information cannot be denied. And there is an overriding third norm.

The DTAA with France permits disclosure in public court proceedings in addition to disclosure in tax proceedings. It means when a court – the highest court in this case – directs the disclosure the government is empowered to disclose under the DTAA. Move further. The DTAA with the US is on identical terms as with France and the proposed IGA with the US is identical to the DTAA with the US on the disclosure of information. Consequently, the application of the government to the Supreme Court that the judgment prohibits disclosure of information is clearly misconceived, if not unnecessary. It is all confusion compounded at every stage.

How then should the government move forward now? The government should consult the SIT appointed by the Supreme Court whenever it has any doubt on how to go forward. It is the SIT that should ask the court for directions. The Supreme Court has already made it clear: the SIT will handle the investigation on black money. Will the government heed?

Narendra ModiPost Script: After all the strong words from the Supreme Court, which ordered the government forthwith to give to it the list of black money holders and critics saying that this government is no different from its predecessor, the SIT chief quietly confirmed last evening(on Tuesday) that the list handed to the court yesterday morning(on Tuesday) was the same as the list given to the SIT by the government four months ago, on June 27, 2014! Means what? The government has concealed nothing from the SIT or the court. But the court rapped the government despite the government’s affidavit day before saying it has given all the names months ago. Neither the court nor the media is going to take back the strong comments. The damage is done. But morally, the Modi Government has won. – The New Indian Express, 30 October 2014

Supreme Court: Systemic failures and corruption thwarts Ganga cleaning plan – IANS

Dead fish in the Ganga

Supreme Court of India in New Delhi“The court … repeatedly considered the option of setting up a committee that would assess the progress made in various steps taken by the government to make Ganga pollution free. The committee considered … was on the line of Bhure Lal Committee that was set-up by the apex court to clear the residential areas of commercial activities and unauthorised constructions in the national capital.” – IANS

Taking a dim view of the snail’s pace at which the Ganga action plan for cleaning the 2,525-km-long river had progressed, the Supreme Court Wednesday said heads must roll for lack of headway as it pointed to systemic failure and that Hari ki Pauripeople on the ground were more interested in bribe than in their task.

“So many heads should roll for the failure to implement the plan. It was not being allowed to be done for corrupt means. This is happening because some people who are entrusted to do the work are not doing it. They are not doing it not because they don’t like it but are being bribed,” said a bench of Justice T. S. Thakur, Justice Adarsh Kumar Goel and Justice R. Banumathi.

The strong observation from the bench came as it was told that since 2007 only one sewage treatment plant was set up in Dehradun and repeated reminders from the Central Pollution Control Board to the State Pollution Control Boards in Uttar Pradesh, Bihar and West Bengal to act against grossly polluting industries have fallen on deaf ears.

“It has not happened for so many years. If it goes on like that it (Ganga cleaning) may not happen in our lifetime. You have to take preventive steps. There has to be (fixing of) accountability,” said Justice Thakur.

Solicitor General Ranjit KumarThe court said this as all through the hearing, Solicitor General Ranjit Kumar tried to push the task of cleaning Ganga on the five basin states of Uttrakhand, Uttar Pradesh, Bihar, Jharkhand and West Bengal as the central government had financed the project but the states were responsible for execution.

“You are the architects of the project to make Ganga pollution free,” the court told him as it wanted to know about the objectives the central government wanted to accomplish in the first phase of the action plan.

The court said that the first phase should commence with preventing the industrial waste from 764 grossly polluting industries from flowing into the river as it would take care of 30 percent of the most toxic industrial waste in it.

Expressing its dismay that Central Pollution Control Board was headless for last six months and in the charge of an additional secretary, the court asked the Solicitor General to tell the court where the appointment was stuck and for which reason.

It also asked Solicitor General to inform the court the progress made on the steps taken by the government in three meetings held in September and October for making Ganga pollution free.

Uma Bharti is the Union Cabinet Minister for Water Resources, River Development and Ganga RejuvenationIt also asked the CPCB to tell it what steps was taken by the pollution control boards in Uttar Pradesh, Bihar and West Bengal on the 222 grossly polluting units – 215 in Uttar Pradesh, one in Bihar and six in West Bengal which were identified by it.

Directing the next hearing of the matter Oct 29, the court asked the central government to file an affidavit with the information sought by it by Oct 27.

The court, throughout its two-hour-long hearing of the matter, repeatedly considered the option of setting up a committee that would assess the progress made in various steps taken by the government to make Ganga pollution free.

Bhure LalThe committee considered by the court was on the line of Bhure Lal Committee that was set-up by the apex court to clear the residential areas of commercial activities and unauthorised constructions in the national capital.

The court said it even thought of having Bhure Lal, Delhi Metro former managing director E. Sreedharan and former Election Commissioner K. J. Rao on the committee being weighed by it but its only reluctance was asking such senior people, in terms of their age, to undertake such an arduous task. – Business Standard, 15 October 2014

See also

Article 370: Facts you should know – Pravin Singh

Kashmir: Article 370

Supreme Court of India in New DelhiThe Supreme Court on Tuesday (August 19) issued a notice to Centre on a plea challenging the provisions of Article 370, which provides special status to Jammu and Kashmir. The plea was filed by a Delhi-based NGO, asking why a law passed by the J&K Assembly “deprives people from other parts of the country from acquiring immovable assets or seek employment in the state.”

Revocation of Article 370 which contains provision for Jammu and Kashmir has been in demand for long time. The Article was added temporarily and was to be removed within a time- period but till date nothing has happened.

What is Article 370?

  • According to the Constitution of India, Article 370 is a law that grants special autonomous status to Jammu and Kashmir.
  • The article is drafted in Part XXI of the Constitution (in Amendment section) which relates to Temporary, Transitional and Special Provisions.
  • The original draft explained “the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948.”
  • On November 15, 1952, it was changed to “the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.”

The special status to Jammu & Kashmir

  • Unlike other State legislative Assemblies, J&K legislature has a six-year term.
  • Jammu & Kashmir has two flags; a separate State flag along with the National Flag.
  • Insulting of national symbols is not cognizable offence in Jammu & Kashmir.
  • Most of the laws except defence, foreign affairs, finance and communication, passed by Indian Parliament need to be approved by the State Government before they are made applicable in the State.
  • The citizens of J&K are governed by State-specific laws which come under the Constitution of Jammu and Kashmir, instead of those for the rest of India.
  • Under Article 370 the Indian Parliament cannot increase or reduce the borders of the State.
  • The Supreme Court has no jurisdiction in the State of Jammu & Kashmir.
  • The residents of J&K enjoy dual citizenship, but they could loose the J&K citizenship if they marry residents of other States.
  • If a woman marries a man in other Indian States, she loses her citizenship. Whereas if any woman marries a Pakistani, she will be entitled to have a citizenship of Jammu & Kashmir.
  • The Article also gives Pakistan’s citizens entitlement to Indian citizenship, if he marries a Kashmiri girl.
  • Majority of Indian laws including RTE, RTI and agencies like CBI, CAG are not applicable in J&K.
  • No outsider can purchase land in the State.
  • The Centre has no power to declare financial emergency under Article 360 in the State.
  • It can declare emergency in the state only in case of war or external aggression.

History of Article 370

  • Dr B.R. Ambedkar, who drafted Indian Constitution, had refused to draft Article 370.
  • In 1949, the then Prime Minister Jawaharlal Nehru had directed Kashmiri leader Sheikh Abdullah to consult Ambedkar in preparation of suitable draft.
  • Article 370 was then drafted by Gopalaswami Ayyangar, former Diwan to Maharajah Hari Singh of Jammu and Kashmir.

Article 370 and related controversy

  • J&K Chief Minister Omar Abdullah had earlier warned that any attempt to reopen the debate on Article 370 would force the State to revisit its terms of accession to the Indian Union.
  • In its election manifesto ahead of the Lok Sabha elections, the BJP had said it is in favour of abrogating Article 370, but said the issue will be discussed thoroughly before a decision is made.
  • During electioneering, Narendra Modi had suggested that it should be probed whether Article 370 has indeed benefited the people of Jammu & Kashmir. OneIndia, 19 August 2014

Kashmir Separatists

How to make India post-colonial, the Supreme Court way – Madhav Nalapat

Prof M.D. Nalapat“It is a burst of fresh air that the Supreme Court has warned the authorities against reflexively sending to jail those accused of crimes against women, such as dowry harassment. Because of the North Korea-style laws that have been passed by the NAC-certified “liberal” Manmohan Singh regime, almost the first action taken by the police is to lock up the presumed offenders, who frequently remain in jail for extended periods of time, while their innocence gets argued in court after court. The liberty of a citizen is a right which ought to be taken away only in rare circumstances, rather than routinely. Indeed, such is the case in any genuine post-colonial society.” – Prof  Madhav Nalapat

Supreme Court of IndiaThe psychic benefits of having a life partner are so varied and immense that it would be churlish to seek to get financially compensated for the privilege. The taking of dowry as a condition for marriage is a vile act, but clearly one which does not lend itself to extinction merely by the passing of legislation. Lawyers are known to bequeath lucrative cases to their offspring, after decades of having shepherded the same through the labyrinth of courts which together constitute India’s legal system. The drain on time, effort and money is relentless, and very often destroys a life.

Sadly, although in a technical sense the people of India became free on 15 August 1947, in reality, practically the entirety of the legal shackles used by Britain to ensure the servitude of the population of India has been retained. Indeed, since 2004, the two legal eagles of the UPA, Palaniappan Chidambaram and Kapil Sibal have got passed (with the sometimes tacit, often overt, acquiescence, it needs to be said, of the principal opposition party) a shipload of laws which collectively transfer huge chunks of additional authority to the state, thereby denuding the citizen of what little increments there were in his rights during the attempts at liberalisation by P.V. Narasimha Rao and Atal Behari Vajpayee.

As the jurist Aryama Sundaram said on NewsX, jail has become the rule and bail the exception. Circa UPA, the courts in several instances and the police almost invariably (except, of course, where high dignitaries are involved) consider it a bagatelle to deprive a citizen of the Republic of India of his or her liberty. The prisons of India are full of individuals who have been tossed in through dodgy evidence, which eventually may be shown to be so in a higher court. That is, if the concerned convict has the money needed to make appeal after appeal to the higher judiciary, and to afford lawyers capable of collating and exhibiting evidence ignored earlier while passing a verdict of “guilty”.

The UPA specialised in asking for more and more legislation, each framed in such a way as to give near-unlimited discretion to the arresting officer. In today’s India, a citizen can get arrested (on the basis of mere accusations) for a plethora of charges, most of which would be non-cognizable in a more fully-fleshed democracy. Once imprisoned, the effort of the authorities is to ensure that skills and knowledge get erased, for example by the denial of internet. The entire process is calculated to de-humanize the convict, so that at the end of his or her term, all that the released prisoner would be capable of would be to push around a vegetable cart. After the Emergency, and the consequent jailing of dozens of political leaders, a few efforts were made to improve prison conditions, but this impetus for reform petered out quickly. Interestingly, despite spending many years in jail, Prime Minister Jawaharlal Nehru declined to ensure an overhaul of the prison system, which in its essentials continues much the way it was in the 1930s. Indeed, recent pronouncements are reported to have averred even that “Life Imprisonment” should mean precisely that, incarceration for the entire remaining period of a human life. What the effect of such a hope-devoid destiny would be on an individual is not difficult to imagine. Clearly, punishment rather than reform remains the objective of India’s penal system.

In such a dismal context, it is a burst of fresh air that the Supreme Court has warned the authorities against reflexively sending to jail those accused of crimes against women, such as dowry harassment. Because of the North Korea-style laws that have been passed by the NAC-certified “liberal” Manmohan Singh regime, almost the first action taken by the police is to lock up the presumed offenders, who frequently remain in jail for extended periods of time, while their innocence gets argued in court after court. The liberty of a citizen is a right which ought to be taken away only in rare circumstances, rather than routinely. Indeed, such is the case in any genuine post-colonial society.

Although its verdicts in matters such as homosexuality have dismayed those wishing to ensure for citizens of this country the same freedoms enjoyed by their counterparts in other countries where tens of millions speak the English language, such as the UK or Australia, in this matter the Supreme Court has come on the side of individual freedom, correctly decreeing that it ought not to be extinguished without clear and good cause. Hopefully, the Supreme Court will follow this verdict with others which enshrine the principles and values of the 21st century post-colonial society that India needs to be. To succeed in the global Knowledge Economy, what is needed is an atmosphere of freedom rather than the restrictive system left behind by the British and preserved rather than eliminated. Jail ought to become the exception rather than the first and often only recourse of the minions of the law. – The Sunday Guardian, 6 July 2014

» Prof. Madhav Das Nalapat, holds the UNESCO Peace Chair and is Director of the Department of Geopolitics at Manipal University, India. A former Coordinating Editor of the Times of India, he writes extensively on security, policy and international affairs. Prof. Nalapat has no formal role in government, although he is said to influence policy at the highest levels. He is currently the Editorial Director of The Sunday Guardian and tweets at @MDNapalat.

 Tihar Jail

Need to overhaul our justice delivery system – P.M. Ravindran

R.M. Lodha

Major P.M. Ravindran“I had been shocked earlier when the CJI, R. M. Lodha, castigated the Government headed by you, in the matter of not recommending the name of a tainted advocate for appointment as a judge of the apex court. To say the least, it was unbecoming conduct on the part of the CJI. In fact, specifically about R. M. Lodha, people like me are shocked how such people, without apparently even the basic knowledge of law, forget the bigger issue of justice, have been appointed as judges in our courts!” – Major (Retd) P. M. Ravindran

Dear Mr Prime Minister,

There goes Mr Lodha, CJI, again! And now he is exposing his ignorance and incompetence by simply blaming you for not providing adequate infrastructure and number of judges which are apparently the only reasons, according to him, why the judiciary is drawing flake from the public for the preposterous delays and all around failure in delivering justice!

I had been shocked earlier when he castigated the Government headed by you, in the matter of not recommending the name of a tainted advocate for appointment as a judge of the apex court. To say the least, it was unbecoming conduct on the part of the CJI. In fact, specifically about R. M. Lodha, people like me are shocked how such people, without apparently even the basic knowledge of law, forget the bigger issue of justice, have been appointed as judges in our courts! It was a bench, of which he was a member, that put a big question mark on the competence of our apex court judges by not delivering justice even in the matter of a simple case like that of the date of birth. This bench of judges even forgot that the petitioner being a Chief of Army Staff  the whole nation was looking out for the final verdict!

Of course you will be getting the best possible legal advice available in the country but ordinary folks like me who are adequately literate are also competent to read and understand the provisions of the Constitution. Art 124(2) of the Constitution is reproduced below:

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. 

Now where does the Collegium come in? It has even been made out in the media that had the ‘Government’ returned the recommendation to the Collegium and the Collegium stuck by its earlier recommendation the ‘Government’ had no choice but to accept it! It is true that the appointing authority of the Executive had at some point of time been usurped by the apex court. It is time that the Parliament restored it to the rightful authority.

Strongly disapproving the all-judge composition of the National Judicial Commission, a Parliamentary Standing Committee of the Ministry of Law and Justice, headed by Rajya Sabha member E.M.S Natchiappan, had said ‘Judges appointing judges is bad enough in itself; judges judging judges is worse.’

And that brings us to the efficacy and accountability of the judiciary.

That our judiciary is an outright failure is evident when we consider the fact that justice delayed is justice denied. And when you look at the final judgements and see that justice is not delivered even after the preposterous delays the very need to sustain such an establishment becomes questionable. Here are two relevant quotes:

Justice is an intrinsic human need. We suffer much privation but we cannot suffer being wronged. Absence of justice, we must not forget, is one of the causes of crime.

  • ‘Needed high speed legal redressal’ – Aravind Kumar, Jurist and lawyer, Pioneer, Kochi, 01 Aug 2006

When we transformed from subjects to citizens, we forfeited our rights it seems, since what happens in our country now in the name of law is often rank injustice.

  • ‘Human rights, the genesis of justice is from religion’ under ‘faith line’ by Renuka Narayanan, The New Indian Express of 20 Dec 2004.

And if you want it from better authorities here is what the National Commission to Review the working of the Constitution has stated in its report, submitted to the then government in 2002:

  • ‘Judicial system has not been able to meet even the modest expectations of the society.  Its delays and costs are frustrating, its processes slow and uncertain.  People are pushed to seek recourse to extra-legal methods for relief.  Trial system both on the civil and criminal side has utterly broken down.’ Also, ‘Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice’

Why I said better authority is because the 11 member Commission, was headed by a former Chief Justice of India, M.N. Venkatachaliah, and of the remaining ten  3 (B.P. Jeevan Reddy, R.S. Sarkaria and Kottapalli Punnayya) were judges of the Supreme Court/High Courts and 2 (Soli J. Sorabjee and K. Parasaran) were lawyers! Only 2 (P.A.Sangma and Sumitra G. Kulkarni) were political nominees and 2 (Dr. Subhash C. Kashyap and Dr. Abid Hussain) were bureaucrats. Just one (C.R. Irani) represented the masses from the media!

Even Prashant Bhushan who has alleged that eight of the earlier 16 Chief Justices of India were corrupt holds Mr Venkatachaliah in high esteem. After indicting the very system which he himself had headed one might tend to agree with Prashant Bhushan. But the fact again lies elsewhere. In his notes to the Report, Dr. Subhash C. Kashyap has mentioned the following: ‘The Chapter 7 of the Report is titled ‘The Judiciary’.  This chapter particularly is seriously flawed and distorted. The much-needed Judicial Reform issues have not been even touched or these got deleted in the final draft.’

Finally, it was left to Ms Kulkarni to drive-in the last nails, thus:

  1. I believe in a Unified and truly Secular India. However, the Commission debates seemed often to reduce the Constitution to being a platform for divisiveness and not unification.
  2. The Commission did not initiate or promote sincere debate in the public with regards to the issues that it was contemplating. The effort was more to “evade and defer” instead of to “identify issues, table them for debate and to deal with them”.

Why I have quoted these is because my observation tells me that this Report is very much like a court order: high moral standing through eloquent quotes, reasonably correct recording of facts, shaky deductions and outrageously wrong decisions!

I am among those who are convinced that this nation cannot develop peacefully unless the judiciary is overhauled lock, stock and barrel.

The judiciary has been complaining about lack of adequate infrastructure and shortage of judges for the high pendency and delays. While it looks true on the face of it the fact is otherwise. To begin at the lower court, most of the time of the court is wasted in a process called mustering where hundreds of cases listed for the day are called out, the presence of the parties ascertained and the cases are adjourned. 30 to 50 percent of the time is wasted in this. It is not the judge‘s or advocate’s time that is wasted. While one is paid by the tax payer, the other is paid by the litigant! Now this is what HD Shourie wrote in ‘How long before justice comes?’ (The New Indian Express of 04 Dec 2004) : ‘It is not possible for a judge to seriously hear and decide more than two or three cases a day….no judge should have more than 30 matters listed before him/her on a given day.’ And, ‘Lawyers are accused of employing delaying methods, but no lawyer can succeed if the court refuses an adjournment.’ 

Regarding the judge to population ratio, another distorted logic not applicable in the Indian context (for reasons that shall be clarified), Senior Advocate K.T.S. Tulsi has reportedly revealed the following statistics:

Cases filed in one year (1999):

India : 13.6 Million (1,36,68,073); USA: 93.81 Million.

Docket’s per Judge: India : 987; USA: 3235.

Now considering that the population of India 4 to 5 times that of the US of A and the cases filed there is seven times that filed in India, how does the judge to population ratio apply here? If the CJI is not aware of these hard facts, again it can only be considered gross incompetence on his part!

Why judiciary alone? Even the quasi-judicial organisations – the consumer ‘courts‘, ombudsmen, commissions like the information commissions – have taken the wrong example of the judiciary and are harassing the day lights out of justice seekers! Here are some statistics of a complaint decided by the Consumer Disputes Redressal Forum, Palakkad, Kerala:

In OP 282/1999 (OP No 85/1995 transferred from Malappuram), the opposite party had produced interim stay order on 28/10/1999 and the stay was vacated only  on 8/6/2005 but through out this period the case was listed 58 times and adjourned! It was finally posted for orders on 6/7/2007 but was opened for re-hearing suo moto on 15/2/2008 and went on an adjournment spree from 3/3/2008 to 31/5/2010. During this spree it was adjourned 17 times, including 5 times for want of members/President and 10 times for orders only! It was dismissed when an application was submitted under the RTI Act to find out the status!

This and other complaints against the Forum and State Commission, to the Minister for Consumer Affairs and the Chief Minister of Kerala have not produced any desired changes. Copy of the complaint submitted to the CM during his Public Contact Program is available here and the response of the President, Consumer Forum is here .

To cut the complaint short, I shall list out certain mandatory changes needed in our justice delivery system.

  1. The judiciary should be reorganised like the medical profession – private practitioners/small clinics/primary health centers, referral centres, tertiary care, super speciality centres. These could be comparable with arbitrators, lower courts, high courts and apex court.
  2. No lawyers in courts. It will ensure that the playing field is level at least to some extent. This is what eminent jurist Fali S. Nariman wrote in his book ‘India’s Legal system: Can it be saved?’: For more years than I can imagine we lawyers have been using our lawyering skills not in a profession but in a game, in which the more skilful (which tends to become also the more costly), will invariably win.
  3. Like general and specialist doctors practising independently, all the lawyers should be classified based on their qualifications and specialisation and their fees regulated through a regulator headed by a human rights activist, supported by a legal advisor and a finance advisor. A data base of such legal practitioners should be maintained by the regulator and the regulator should be able to update the status of the legal practitioner based on litigant feedback.
  4. Aggrieved parties should approach a proper arbitrator who should be empowered to summon respondent(s) and advise them on a solution. At the end of the day, whether the problem is solved or not, both the parties should send a feedback, including a grading on a 10 point scale, to the regulator.
  5. If any of the parties are not happy then they can appeal to a lower court. The decision of the lower court should be final. If both the parties are unhappy and file appeals with different courts a designated court should be empowered to transfer both the cases to a third court convenient to both parties. Again appropriate feedback should be provided to the regulator.
  6. Serious crimes like murder, rape, corruption, complaints against public servants should be heard initially itself by the lower courts and the appellate authority should be the high court. As usual feedback from both parties should be provided to the regulator.
  7. The apex court should only take up interstate disputes and issues involving interpretation of the Constitution.
  8. All orders, without exception, of high courts and the Supreme Court should be published in a centralised website which can be searched based on court, judge, petitioner, respondent, subject, law and section under which charged (example Sec 217 of the IPC), punishment awarded, compensation awarded to aggrieved party (could be the petitioner or the respondent who has been acquitted!). (I have highlighted without exception because right now it is the judge who decides whether an order has to be uploaded/published and there is obvious shortcoming in this process!)
  9. Follow up data-like date and place of commencement of imprisonment, payment of cost/compensation etc- should also be updated against the same case, based on mandatory inputs to be provided by the authority implementing the order to the authority responsible for updating the data (should be under the same regulator compiling feedbacks and grading advocates, judges).
  10. Cases involving public servants should be contested by the concerned public servant in his own capacity and at his own cost. Compensation/punishment should follow as for any ordinary litigant.
  11. All quasi-judicial organisations should be discontinued.
  12. A Contempt of Citizen (Prevention of ) Act should be enacted and even judges summoning litigants and adjourning without conducting any hearing effectively, should be under it purview.

While the foregoing suggestions would apply to long-term reforms, for the immediate future the following should be taken up on war footing:

  1. No judge should list more than two times the cases s/he can effectively hear in a day. And these also should be divided into forenoon and afternoon sessions, necessitating litigants to spare time only in the forenoon or afternoon.
  2. The list of cases taken up for the day should be displayed on a notice board and the serial number of the case in progress should be displayed on a counter or a TV screen.
  3. No litigant should be required to appear in a case on more than three occasions in minor cases, six times in somewhat serious cases and 12 times in very serious cases.
  4. An attendance slip should be provided to every litigant, who has been summoned and attended court, as proof of attendance.
  5. Minor cases should be disposed of within 3 months and very serious cases within one year.
  6. Contempt of court cases should be restricted to cases where those responsible for complying with the orders fail to do so.
  7. In every case the ‘victim‘ (whether it is the complainant or the acquitted accused) should be compensated appropriately by the other party.
  8. Public servants involved in cases even in their official capacity should be considered as ordinary litigants without the support of the official machinery and should initiate / contest cases on their own. While the punishment/compensation will also be suffered/ enjoyed by them as ordinary citizens, they can be given additional incentives by the government if there is some gain accrued to the public.

Hope this long letter will of help in appreciating the frustration and disgust of the public with the present justice delivery system. You, being in the driver‘s seat of the national bus and empowered to take it to its destination, are expected to do the needful. After the power of the vote it is now the power of our prayers that we hope will help you steer right to the correct destination!

Yours truly,

P. M. Ravindran

Sent to:

Sri Narendra Modi, Prime Minister – through e-mail, pmindia@pmindia.nic.in

Copy to:

Mr R. M. Lodha, CJI – through e-mail, supremecourt@nic.in

Supreme Court: Islamic shariat courts not legal, can’t enforce fatwas – Dhananjay Mahapatra

Fatwa

Supreme Court of India in New DelhiFatwa is an informal justice delivery system with an objective of bringing about amicable settlement between parties, the Supreme Court said. “It is within the discretion of the persons either to accept, ignore or reject it.” – Supreme Court of India

The Supreme Court on Monday ruled that fatwas issued by shariat courts or muftis had no legal sanctity, asserting that the defiance of fatwas will have no civil or criminal consequences.

The court said it would be illegal to impose these religion-based opinions on personal issues on citizens in violation of their fundamental rights.

“Whatever may be the status of fatwa during Mughal or British rule, it has no place in independent India under our constitutional scheme,” a bench of Justices Chandramauli K Prasad and Pinaki C Ghose said. “Any person trying to enforce a fatwa by any method shall be illegal and has to be dealt with in accordance with law,” it added.

There have been bizarre fatwas covering almost the entire spectrum of social life of Muslims — from banning a popular all-girls Kashmiri band leading to its disbanding, to asking Muzaffarnagar’s Imrana to treat her husband as her son after she was raped by her father-in-law.

In fact, it was the mushrooming of fatwas, ranging from dissolution of marriage to dress code for women, which led advocate Vishwa Lochan Madan to file a PIL questioning jurisdiction of shariat courts, Dar-ul-Qaza (personal law courts) and Deoband muftis in dictating social behaviour of citizens and, in the process, virtually setting up a parallel judicial system on issues relating to Muslim personal law.

“A fatwa has no legal sanction and cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law,” said Justice Prasad, who authored the judgment.

“In case any person or body tries to impose it, their act would be illegal. Therefore, the grievance of the petitioner that Dar-ul-Qazas and Nizam-e-Qaza are running a parallel judicial system is misconceived,” the bench said.

The All India Muslim Personal Law Board (AIMPLB) had told the apex court, “Establishment of a network of judicial system throughout the country to help Muslims get their disputes settled by qazis may not have police powers but shall have the book of Allah in hand and Sunnat of the Rasool and all decisions should be according to the book and the Sunnat. This will bring Muslims to Muslim courts. They will get justice.”

But the bench was not amused. It said, “The object of establishment of such a court may be laudable but we have no doubt in our mind that it has no legal status. It is bereft of any legal pedigree and has no sanction in laws of the land.”

Though the court said existence of Dar-ul-Qaza and issuance of fatwas were not per se illegal, it clarified that “it is not a decree, not binding on the court or the state or the individual. It is not sanctioned under our constitutional scheme”. It discussed the adverse impact of fatwas on people for whom religion was a matter of unflinching faith in the almighty. “As fatwas get strength from the religion, it causes serious psychological impact on the person intending not to abide by that,” the bench said.

The court cited the stand of Deoband Dar-ul-Uloom‘s stand to emphasize the deep psychological impact of fatwas. The Deoband Dar-ul-Uloom had said, “The persons who are god-fearing and believe that they are answerable to the almighty and have to face the consequence of their doings/deeds, such are the persons who submit to fatwa.”

In this context, the court recounted the harrowing tale of Imrana of Muzaffarnagar, UP. “Though neither the wife nor the husband had approached for any opinion, an opinion was sought for and given at the instance of a journalist, a total stranger. In this way, the victim has been punished. A country governed by law cannot fathom it.

“In our opinion, one may not object to issuance of fatwa on a religious issue or any other issue so long as it does not infringe upon the rights of individuals guaranteed under law,” it said.

The court said fatwas could cause “immense devastation” and advised Dar-ul-Qazas and muftis not to issue them unless asked for by the person involved or the person having direct interest in the matter. “Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore, would be absolutely uncalled for. It shall be in violation of basic human rights,” it said. Madan had sought a direction to the Union government and states to take effective steps to disband and dissolve all Dar-ul-Qazas and Shariat courts and to ensure that they did not function to adjudicate any matrimonial dispute under Muslim personal law.

He had also requested the SC to quash attempts to “establish a parallel Muslim judicial system” by ordering AIMPLB, Dar-ul-Uloom Deoband and other Dar-ul-Ulooms in the country not to train or appoint qazis, naib-qazis or muftis for “rendering any judicial service of any kind”.

Neither Union of India nor AIMPLB denied that Dar-ul-Qazas had been set up and qazis and naib-qazis were trained, who issued fatwas. But they said these were mere alternative dispute settlement forums not in conflict with the existing judicial system.

Dar-ul-Uloom Deoband admitted to issuing a fatwa in Imrana’s case as per Fiqah-e-Hanafi, which was based on Quran and Hadith but asserted that it had no agency or power to enforce its fatwas. It was at the discretion of the person concerned to obey the fatwa. – Times of India, 8 July 2014

Fatwa

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