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.

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)

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. Perhaps, emotional anguish was most directed against the ripping-apart of a State that has probably been one of the better governed in the country.

Before the Telengana empathizer starts to dig their nails into this post, let me explain why I think the split was a terrible, terrible idea.

My argument, interestingly, stems from Malini Parthasarathy’s tweet about the division being a political result and not historically ‘explained’. Fully in agreement, I think there ought to have been a modus vivendi between the creation of a separate State and the problems of the undeniably underprivileged segments in the region. The States Reorganisation Commission, constituted in 1956 was assigned to do the demarcation on the basis of linguistic lines. Consequently, Andhra, Rayalaseema and Telengana fell within the larger Pradesh, though there were dialect differences to reckon with. In the realm of policy-making, Andhra Pradesh witnessed acts of gross discrimination against the people of Telengana, especially the coastal regions, in issues of public-sector jobs, educational opportunities and standards of living.

Telengana has always been used as a trump card, by N.T. Rama Rao, by Channa Reddy, by Nara Chandrababu Naidu, by K. Chandrasekhara Rao, and by countless other political figures. The objective, in tune with the demand, became political. Unlike Potti Sreeramulu’s hunger strike which resulted in the creation of AP (and his death),  KCR demand’s pertain primarily to administration, and not recognition per se.  In the process of the cause being articulated, especially amongst civil society, it has been viewed as a recognition of Statehood akin to the creation of AP itself.

The Congress has always responded to the Telengana cause politically, which I personally believe,  has been the right way to go about it. But in suddenly relenting to the demand, India’s oldest party has shown that it dearly lacks the acumen and iron hand of someone like YSR.

To cut through the brass tags, let’s take a look at the infamous Red Corridor. Which states do some of the most lawless, most violent and dangerous parts of India comprise? Chattisgarh and Jharkhand. Rings a bell?

I’m not going to the justifiability of the demands that led to the creation of C and J (socio-cultural identity, of course, was the predominant one). What I am going to dwell on, is the administrative facilities available in a nascent State.

Andhra Pradesh has had a long-standing history of Maoist insurgency, with the naxals constantly infusing doses of violence in society. Not only has the Telengana movement provided ample cover for Naxal stirs, the separate, autonomous region will also house significant chunks of radicals. The new administration will find it increasingly difficult to manage the hostile demands of Maoist groups, but will also see Andhra Pradesh and the Union Govt reticent to come to its help without a concrete plan of action.

Consequently,equitable and effective governance, which has been the rallying cry for the creation of Telengana, will not materialize. The difficulties in formulating public policy that gauges the pulse of the secessionist sentiment, will be gargantuan. Not just because the sentiment is mixed with emotion and rhetoric, but is a classic case of the political thumping the real needs of those affected. The naxal problem is merely one thorn in the administrative flesh, and the problems faced by new States are for everyone to see.

Well then, why is it a problem, if the long run sees a developed Telengana that has won its wars with itself? The irony lies in the fact, that Telengana is being created from a State that has been the only one to have successfully combated naxalist violence. Status quo, to which I will respectfully allude to now, is the product of years of negotiation, and years of counter-insurgency (sometimes ruthless, and cold-blooded). The question to be asked is, will all roads lead to the same Rome, though disguised as populist sentiment?

As usual, I escape, without talking about the modus vivendi or other viable alternatives – but this time, its because there’s no point in crying over spilt milk.

(I would like to reiterate that this post has been the consequence of emotional, rather than rational outpour – Comments and criticisms are most welcome.)

Nearly a year after 26/11, a New Yorker writes on the sense of anguish faced by Indians in bearing with the delays of the justice delivery system.

There are times when you feel that there is no justice in this world, and even with the courts and judiciary system in place and doing all they can to bring criminals to book, the ones who deserve to be punished end up escaping because of technicalities and loopholes in the law. Take the case of the lone surviving gunman of the Mumbai terror attacks – Mohammad Ajmal Kasab. Is it really fair to the victims of the attack and their families that this man, who was caught on camera killing people with a machine gun, who had been seen by witnesses going on a shooting spree inside the CST in Mumbai, is now housed comfortably in a jail where he is being fed and clothed and looked after well? Is it fair that the trial drags on and on and that it could be years before justice is actually served?

The whole case seems like a horrible parody being played out, a travesty of justice simply because the whole world has seen proof of his heinous crimes. Yes, perhaps India is country which is proud of its constitution and which believes in upholding the letter of the law no matter what the consequences. And so Kasab was provided with a lawyer at the state’s expense, and the case has been dragging on and on.

The terrorist confessed in a moment of weakness, but then, the prosecution refused to accept the confession and the defense claimed that it was not admissible in court as it was dragged out of Kasab under duress. Then there was the plea that he was a juvenile, but all records pointed to him being 21, an age where he could be tried as an adult. And with one such ridiculous charade after another being played out, the average Indian is left with a sense of disbelief and disgust that even criminals who commit murder on nationwide television are being provided with such long-drawn out trials.

Yes, the country is upholding its constitution which states that every citizen or alien is entitled to legal representation, unless it is at war with the nation that the alien belongs to. And since India and Pakistan are not at war, Kasab is entitled to a defense, no matter that he shot and killed innocent Indians in broad daylight and without mercy.

Even if the trial comes to an end any time soon, Kasab cannot be given the death penalty, since India being a signatory to the Geneva Convention, cannot execute a prisoner of war (if it is proved that Kasab was acting under the orders of the Pakistani high command). And where does that leave all the Indians who are baying for his blood after the massacre he was part of? I guess in the same boat that most New Yorkers are after 9/11 – in limbo because there is no sense of closure.

This guest post was contributed by Donna Mitchell, who regularly writes on Paralegal Schools . She welcomes your comments and questions at her email address: donna.mitchell@rediffmail.com

We have read in the papers that the report by Justice Richard Goldstone on the Fact Finding Mission on the Gaza Conflict was released a few days ago. The report has concluded that in the fighting that ensued in the months of November and December, both sides have killed numerous people and are accountable for war crimes and crimes against humanity.

As regards Israel, the report states,

“In its findings on Israel’s conduct, the report noted that the ruinous siege on Gaza, imposed long before the invasion, collectively punished its residents in violation of international law. During the attack, Israeli troops killed civilians without justification, wantonly destroyed civilian infrastructure and private homes, and used weapons illegally. Israeli troops targeted and destroyed Gaza’s last functioning flour mill. Israeli armored bulldozers razed the chicken farm that provided 10% of Gaza’s eggs, burying 31,000 chickens in rubble. Israeli gunners bombed a raw sewage lagoon, releasing 200,000 cubic meters of filth into neighboring farmland. Repeated pinpoint strikes on a water well complex destroyed all of its essential machinery.”

The world order has sprung into action with each country having an opinion on the report. Israel and the United States (obviously siding Israel) have called the report biased and stated that it overwhelmingly focused on Israel’s actions. Even hamas say so. However, the neutralists say that the report seems to bring out the true picture of the situation in Palestine.

The implications of the Report may be graver than they seem at present. There is a possibility that the conflict goes beyond two nations itself and enters a new realm of international law; in this case I am speaking of the International Criminal Court. Even though Israel is not a member to the Rome Statue, the ICC may have jurisdiction if the United Nations refers the matter to the prosecutor. In fact, the Goldstone report recommended that if Israel did not within six months launch fully independent investigations into the “serious violations” of international law it alleges, then the country should face International Criminal Court proceedings.

Be it noted that a case can also be independently investigated by the Prosecutor when using their proprio motu powers under Article 15 (only for a state party though).  The Goldstone report would likely be used as supporting material as part of any investigation initiated under this section,

“The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.”

However, ICC Prosecutor Luis Moreno Ocampo is not ruling out options to prosecute Israel or Israeli authorities. Investigations have begun on behalf of the ICC. In an interview here she said that that since one of the Israeli legal advisers involved in the alleged conflict and commission of war crimes was South African, the ICC could gain jurisdiction through that route as well.  South Africa ratified the Rome Statute on Nov. 27, 2000.