Something About The Law

Since beginning in early January this year, we’ve had a fantastic response to our posts, events and online discussions. 2009 has been a happening year for the world and India, and that holds for us too. The graduation fromThe Social Blog has been phenomenally well-received by our readers, and thanks to you, Something About The Law can now boast of an extensive network among Indian law schools. We have a number of events/ideas in mind for 2010, and look forward to your encouragement and support. From the editors at SATL, here’s wishing you a fabulous year ahead!

Here’s a year-end compilation of some of our best (most-read, commented and appreciated) posts in 2009. They are in no specific order, and clicking on the title will take you to the full post.

1. The Socio-Legal Debates

Academic circles across premier law schools of the world have been characterized by the presence of an intellectual and interactive atmosphere among students and faculty members. In India, however, we are yet to see the inception of a platform that promotes stimulating, real-time legal discourse outside classrooms. In an attempt to bridge this scholastic divide, Something About The Law has sought to conceptualize a monthly debate-cum-discourse among legal practitioners, academia and experts on a host of socio-legal topics.

2. Attacks on Students: Reflections from Australia

The recent spate of attacks against members of the Indian community in Australia has spawned numerous allegations of racial abuse and discriminatory practice; the Australian Government is currently under immense pressure to bring such perpetrators to justice. The Indian media has whipped up a storm, devoting several hours of airtime to the matter; quite understandably, the nation is quite concerned with such disturbing developments Down Under. Amrita Khemka (a student from NALSAR who is currently at the University of New South Wales, Sydney on an Exchange Program) expresses her views on the matter. In addition, she has garnered diverse views from Indians who are currently studying/employed in Australia. Read on

3.  J.M Lyngdoh on Electoral Reforms in India

We are a nation of sorts; created out of the fundamentalist and acrimonious partition of the   continent’ Against this backdrop, India chose a democracy and have everyone participate in governance.

In the last 60 years, the constitution has had remarkable success. Significant is the involvement of the underprivileged in politics.

4. Musings on the Death Sentence

In 1994 Narayan Chetnam Choudhary committed the crime of murdering five women, one of whom was pregnant and two were children with a tender age of two and a half and one and a half years. In 2000 the Supreme Court confirmed his death sentence. Nine years hence, he lies in the jail at Pune wondering of the morning on which he would be executed.

5.  Child Sexual Abuse in India

The Children We Sacrifice, a documentary by Grace Poore, a South Asian feminist writer and activist of the Voices Unheard Sisters Unseen fame, deals exclusively with child sexual abuse (CSA). Though I haven’t watched the documentary, the message it seems to be sending across is this: CSA is an everyday reality for about half of India’s children, however, somehow, it remains the least undocumented offences in the country. It, therefore, is not surprising that no legislation specifically deals with the issue which can rightly be categorised as one of the darkest and most worrisome blots on the Indian society.

6.  Why Telengana is a terrible, terrible idea.

Much of this post has been the result of sudden and unsettling change – but I’ve tried to abandon my confessed status-quoism in discussing the future of a territory where I have spent a lion’s share of the last 5 years. It was rather unfortunate to be stuck in a train, far from live coverage, when news of a purported Telengana broke out. It was even more frustrating not to be in Hyderabad, when the exhibition of democratic dissent surfaced.

7.  The Collegium, Judges’ Assets and Justice Dinakaran’s Case

Below is a short version of my Speech for the Constitutional Law Society’s debate on The Collegium, Judges Assets and Justice Dinakaran. It was a laudable effort on the part of the CLS to organise the same and kudos to them.

8. Implications of a New Direct Tax Code

Neha Pathakji, Lecturer in Taxation Laws at NALSAR, writes on the proposed Direct Tax Code, and its impact on the society.) The nation is witnessing winds of change these days, especially in the age old Tax system. Just when a new indirect tax regime is round the corner in the form of GST(Goods and service tax), likely to be implemented in April 2010; the release of brand new Direct Tax Code has leased a fresh life in the Direct Tax system.

9. The Downs – and Ups – of Free Distribution

Why are text messages limited to 160 characters? Why not more – surely we seem to have a lot to say to each other – or less? Why not 200, or even 150? A recently published article in the Los Angeles Times reveals a fascinating, yet somewhat disturbing, story.

The main disputes in the tribal heartlands of India concern the mining activities and the flushing out of tribals in the name of development. The possibility of such activities occurring could have and be drastically reduced if the V Schedule of the Constitution and the judgment of the Supreme Court in Samata v. State of AP (1997 SC) be implemented.

In the later half of 2009, the Government approved the setting up of Tata Steel’s proposed setting up of an integrated 5.5 million tonne steel plant in Chhattisgarh. The allegations against this action were that the Government had failed to carry out the social impact assessment (SIA) study in the affected area along with EIA (environment impact assessment) study report. Such, is further mandatory in a scheduled area under the fifth schedule of the Constitution. It is not just this latest action by a corporate mining giant that is against the constitutional ethos. The entire conflict in the districts of Dantewada and Bastar in South Chhattisgarh is perpetrated by such actions.

I shall illustrate this by a simple example. The Forest Rights Act gives a guarantee to every tribal for ownership of his land. However, to be given a title (patta) to this land, the tribal must be in possession of it and if not, then it goes to the state. So when you take the villagers at gun point and resettle them in camps on the highway, or force them to flee to other areas in fear; they lose possession of the land. This mineral rich land then goes to the Government that later gets leased to mining companies for crores of rupees. Scores of people have died in this conflict that is now being viewed as a security situation while it should rather be looked as an instance of land grabbing.

Erragota village after being destroyed- Courtesy Javed Iqbal

On the other hand, the law is clearly in the favour of the tribals. The Constitution guarantees under the fifth schedule the power to the Governor to make regulations for the welfare of the tribals and secure their rights over their tribal land. It, in a way recognizes that land is very much dear to these people. In 1997, Samata, an NGO filed a petition (SLP) in the Supreme Court challenging the leasing of tribal lands to mining companies in Andhra Pradhesh. The Court, in its judgment held as follows;

• That as per the 73^rd Amendment to the Constitution of India, every Gram Sabha shall be competent to prevent the alienation of land in the scheduled areas and take appropriate action to prevent any unlawful alienation of land of a scheduled tribe.
• Minerals in these areas are to be exploited by the tribals themselves or through co-operative societies with financial assistance from the State.
• Transfer of land in Scheduled Areas, by way of lease to non- tribals, corporations etc… stands prohibited.
• In the absence of a total prohibition in some states, a Committee of Secretaries and State Cabinet Sub Committees should be constituted and then only must a decision be taken on mining activities.
• In any event,  any licensee or lessee must provide certain duties and obligations to the tribals as part of the administration of projects. At least 20 per cent of the lessee’s net profits would have to be set aside as a permanent fund for the people’s development needs on top of any expenditure for reforestation and the maintenance of ecology.

Thus, as is evident, if there is a law/ regulation made by the Governor under the Fifth schedule, any mining lease is prohibited. Even if there is no Regulation, then a Committee must be constituted and only on the report of the Committee, must a decision be taken. Later on, when the Government attempted to subvert this judgment and ask for a review, the Supreme Court turned it down.

However, despite this judgment, the Government has been extremely impudent and is flouting the directions of the Supreme Court time and again. Take the case of Vedanta for instance. A corporation that is known the world over for its nefarious activities. The Governments of Norway, Zambia, Armenia and UK have already held Vedanta responsible for causing serious damage to people and the environment as a result of its economic activities. In its latest activities, it proposes to conduct mining activities in Niyamgiri and Lanjigarh parts of Orissa.

The Supreme Court in its 2005 report held as follows;

“The people have been displaced from their houses through physical eviction by the District Administration. Many were beaten up by the employees of Vedanta… In the face of resistance, the District Collector and the company officials collaborated to coerce and threaten them. An atmosphere of fear was created through the hired goons, the police and the administration….After being forcibly removed they were kept under watch and ward by the armed guards of Vedanta and no outsider was allowed to meet them,” the report stated. It further adds that the project is ‘bound to destroy the water recharging capacity of the area’ and ‘cause the desertification of permanent streams’.”[i]

Even today, the Government officials are allegedly working hand- in – hand with Vedanta to displace the tribals from their land and allow Vedanta to conduct its mining activities; in clear violation of the Fifth Schedule and the earlier mentioned Supreme Court judgment.

Chhattisgarh is a different ball game in itself. In 2005, certain leader started an apparent peaceful movement called the ‘Salwa Judum’, funded by the Government and mining corporations. This apparent peacedul movement has seen violence escalate in the region and in the past five years, more than 644 villages have been burnt down, 5000 or so killed and injured, 2.5 lakh people displaced and other heinous acts of violence committed. The same day, it is rumoured, that the Tata’s got a mining lease in that area.

The conflict in the region is a result of land grabbing. However, the Government is making it out to be one of national security thereby further justifying the killings, displacement and the violence. Side by side, the Tatas, Jindals and Essars wait for their share of pie in the mineral rich land.

Perhaps all this could be avoided if the Fifth Schedule and the Judgment in Samata’s case as implemented properly. The present actions by the Government are clearly in violation of the Constitution, law and Supreme Court judgments.  However, the Government is looking at the Samata Judgment as an obstacle to ‘development’ and is initiating plans to amend the fifth schedule; thereby to dilute the guarantees given to the tribals.[ii]

Gandhian Activist Himanshu Kumar while on a fast protesting the injustice meted out to the tribals.

Meanwhile, Gandhian activist Himanshu Kumar fasts to get some justice as regards the violence and the implementation of Supreme Court orders concerning the rehabilitation of displaced tribals in Chhattisgarh.

[i] See Neerja Dasani, “Paying the Price of a Propoganda Group”, http://www.countercurrents.org/dasani131209.htmhttp://www.countercurrents.org/dasani131209.htm

[ii] Secret Document, Government of India, Ministry of Mines. Now available at http://www.mmpindia.org/Mining%20secret%20note.htm

This just in.

While hearing a plea on the plight of eunuchs in the Country, the Pakistan Supreme Court has suggested to the government and social welfare departments to consider hiring eunuchs for recovering outstanding loans. Apparently then they could get some meaningful employment.

Here’s whats worse;

During the hearing, the chief justice said eunuchs were hired for recovering loans in India, which had produced great results and suggested the government and social welfare departments should consider hiring eunuchs to recover loans. In this way a respectable employment can be offered to this neglected segment of the society, the CJ said.

I was in Jammu and Kashmir recently, to witness a two-day dialogue on issues of autonomy, sectarian violence and Indo-Pak relations vis-a-vis the Kashmir Valley. To be naively frank, the complexities on the ground were mind-boggling to me. Ensconced in ivory towers, myths have been created by the self and the other about the situation in the Valley – as I observed discussions between local politicians, academics and social workers, these myths were being demolished, in rapid succession. Needless to say, it was shocking to wake up to the amount of disinformation and ambiguity surrounding one of India’s most troubled and beautiful locations.

The air of confidentiality surrounding the dialogue mandates that I be discrete with the particulars of the same. Consequently, I’ve jotted down a couple of issues which I think are of great contemporaneous relevance to the problems faced by the Kashmiri people.

The most important, is undoubtedly, the question of autonomy. During a sideline conversation that I had with a young Kashmiri friend, he told me the Kashmiri youth were overwhelmingly in support of Azaadi, and if a plebiscite was held, there would be few who would choose to be part of the Indian polity. Yet, the great irony lay in the fact that the same people who wanted Azaadi did not know what to do with it! The political space on Azaadi (and the moderate demand of Autonomy) of the Kashmiri people is filled with confusing discourse of the political parties in the State. How else would you explain the six-odd voluminous reports that have been issued by every major political party in J&K, right from Sheikh Abdullah’s Naya Kashmir to the PDP’s Self-Rule Document?

At the heart of the Kashmir problem, yes, with all of militancy, unrest and dissent, lies the issue of governance. It is so profoundly simple, and yet so complicated that clear solutions have become the distant future. For years, indeed, since the time of Independence, the State has felt the need for free and fair elections. The number of people I met, who exhorted that J&K State Governments were blessed by the Centre rather than its people, is many. Governance has been a tricky issue for the Central Government because Kashmir has had a tortuous history – right from claims of the Instrument of Accession being non-existent, to conspiracy theories  as to why the Indian Army did not go after what is now PoK – there are many thorns in the establishment’s path. But in venturing down this dangerous path, one feels, after listening to countless people in Kashmir, that the pulse of the public is yet to be gauged.

What has spawned off a movement for Azaadi and autonomy has now resulted in decades of militancy and unrest. I left for Kashmir a strong Unionist, and remain one, because I believe that there can be no compromise on the territorial integrity of our country. At the same time, it was heart-wrenching to know and hear about the plight of fellow citizens in a far corner, treated and often understood as ‘different’ from the Indian mainstream. Demands of autonomy, I often felt, were justified, if it meant that the people of Jammu and Kashmir had access to better, effective governance. But amidst all the internal turmoil, be it between Jammu, Kashmir, Leh, Kargil or the Chenab Valley, it is important that top priority is accorded to developmental needs of the State. In thrashing out a plan for autonomy, or governance within the federal framework, either through Chidambaram’s ‘quiet diplomacy’ or other modes, its important that the solutions are responsive and reactive.

On the foreign policy front, I do believe that it is time for India to restart negotiations with Pakistan. The latter is in a dire internal situation, and has repeatedly emphasized its willingness to get back to the table. Rather than watching the show unravel in Pakistan, the Indian Government must engage in a composite dialogue on Kashmir. CBMs have shown the way forward, and must be kept in place to further continuity of relationship. Trade and economic relations must improve to benefit J&K, and for once, the hawks must be ignored to take our relations with Pakistan forward.

(The immediate future of Indo-Pak relations will also form the subject of the next post)

The Subrata Roy Chowdhury Memorial Essay Writing Competition is being co-organized by the National University of Juridical Sciences, the  Society of International Law and Practice (“SILP”), NUJS and the NUJS ILSA Chapter in association with the Indian Yearbook of International Law and Policy. The object of the competition is to promote research and writing in international law.  The competition seeks to encourage creative thinking and the themes that have been selected for the competition are thus issues which are crucial today, to the field of international law and related legal policy.

Themes

• Is India ready for Sovereign Wealth Funds?
• Exo-politics and the emergence of a New World Order
• Non state actors, transnational armed groups and the regulation of hostilities in India: Should International Humanitarian Law recognize a hybrid category of armed conflict?
• Does Climate Change have an impact on National Security? An Indian perspective
• Can the principles of Insurance Law be applied to the Law of Outer Space?

Prizes

First Prize: Rs. 8000 [In addition, the winning entry will also be considered for publication in the forthcoming issue of the Indian Yearbook of International Law and Policy, in accordance with the Editorial Policy of the Yearbook.]

Second Prize: Rs. 6500

Third Prize: Rs. 5000

The deadline for the submission of entries is February 10, 2010.

For any queries regarding the competition rules, judges etc, please send an e-mail to silp@nujs.edu or nujs.ilsa@gmail.com.