‘Indian Govt will realise we can do without nuclear energy’-Meera Udayakumar #mustread

September 16, 2012 13:48 IST, rediff.com

“I meet him once every month. Since the past few months it has been
like that. I would go to Idinthakarai with my two sons and meet him. I
have commitments here. My mother is sick. Things are not easy. People
at home are upset. I find myself responsible for two sets of parents.

“A week ago, he called me urgently. I went with children to
Idinthakarai. He said something bad was coming. He was certain he was
going to be arrested. There were first information reports against
him. He said he will surrender to the police as it will be good for
everyone. If he surrendered to the police, they will stop harassing
people.

“I was shocked. What will happen if he gets arrested? My children were
worried for his life. My younger son, who is 12-year old, asked me if
he would ever come back after he was arrested. My elder son, who is
two years older, asked if his father would be beaten.

“People told me that I was naive. They said that what they wanted was
that no one should ask questions and the plant should go on. The day
he decided to get a court arrest, he said it was the ground reality
that was forcing him to do so and that I should explain it to the
children. He spoke to them, too.

“Arvind Kejriwal came on Tuesday night at 10 pm. People had by then
taken him away so that he won’t surrender. Kejriwal said it was
decided that he will not surrender.

“Now things have changed. It is very scary. I have no idea for how
long would he remain underground. He has no idea either.

“Kejriwal said the intention of the state is to bring everything to an
end. That is, if he is separated from people, all will come to an end.
The movement would be finished.

“But, that is wishful thinking. It is too simplistic. It will only
intensify feelings. He has to worry about it, too.  He was training
people for a peaceful protest.

“There are FIRs against me, too, under three sections for unlawful
assembly. On Saturday, the police came here, about 25 of them and gave
me summons asking me to appear in the court.

“It all started a year ago. We were getting ready for school when we
got a call. It was the day after the hot run. (The Russianp-designed
Kudankulam nuclear plant conducted the hot run — testing various
equipments in the plant with dummy fuel — in August last year).
Anxious people gathered outside the church and he had to go.

“Everything changed after that. They branded him a Naxal. Then, they
said he was getting money from foreign countries for this struggle.
All that has been proved false. He never got any money from anybody.

“We run this school, where 90 per cent of students are first
generation learners. Yes, they know what is happening around them.
They watch TV. On Saturday, a four-year old came to me and asked me
about him.

“My children want him to come back. I want him back. I want him to
come out and pick up his life from where he left it. I know that would
happen.

“The government will realise we can do without nuclear energy. All
will understand the fact that this energy is not what we want.
“I remain positive always. I am sure there is a stronger force up
there. This whole thing was led, despite obstacles, not because of one
person but a collective spiritual power, whatever is leading this
universe. There will be an end. A win-win solution will be there. I
believe it. Idinthakarai wants alternative energy policy. They are
lobbying for altrernative policy for the whole country. The government
will be there for the people. They are people, too. They are not bad
people. I hope that people will see a reason in having a safer
alternative.”

– Sreelatha Menon

India- Children slapped with sedition charges #WTFnews

4 children arrested near Idinthakarai face sedition charges

SPECIAL CORRESPONDENT, The Hindu

 

A Coast Guard aircraft flies over anti-nuclear protestors, who began a jal satyagraha against the Kudankulam Nuclear Power Project (KNPP) by standing the whole day in the sea on Thursday. The year-long protest turned violent on Monday. PTI Photo

Four boys, aged between 15 and 16 years, who were arrested by the police during and after Monday’s clash between the anti-Kudankulam Nuclear Power Project protesters and the police near Idinthakarai, are now facing serious charges including sedition.

All the four – one each from Vairaavikinaru, Idinthakarai and two from Kudankulam – have been lodged in the Juvenile Home on the South Bypass Road near the western entrance of Vaeinthaankulam New Bus Stand in Tirunelveli.

If the sedition charges framed against them are proved, they can be punished with imprisonment for life.

The Kudankulam police have registered a case against the boy from Vairaavikinaru under Sections 147 (rioting), 148 (rioting with deadly weapon), 353 (assault or criminal force to deter public servant from discharge of his duty), 431 (damaging road, bridge, river, channel etc.), 121(A) (conspiring to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government), 395 (dacoity), 307 (attempt to murder) r/w 149 IPC (unlawful assembly) and Sec 3 of TNPPDL Act (causing damage to public property).

The boy from Idinthakarai, who was reportedly arrested during the clash, is facing charges under Sections 147, 148, 188 (disobedience to order duly promulgated by public servant) r/w 144 Cr. P. C and 332 (voluntarily causing hurt to deter public servant from his duty), 352 (assault or criminal force otherwise than on grave provocation), 355 (assault or criminal force with intent to dishonour person, otherwise than on grave provocation), 294 (b) (sings, recites or utters any obscene song, ballad or words, in or near any public place), 307, 427 (mischief to cause minor damage) IPC r/w 149 IPC and Section 13 of Unlawful Assembly Act and Section 3 of TNPPDL Act.

Of the four, the children from Kundankulam are facing grave charges as they have been booked under Sections 147,148, 353 (assault or criminal force to deter public servant from discharge of his duty), 431, 188 IPC r/w 144 Cr. P. C., ,291 (continuance of nuisance after injunction to discontinue), 294(b), 121 (waging, or attempting to wage war, or abetting waging of war, against the Government of India), 124(A) (sedition) 307 IPC r/w 149 IPC and 3 of TNPPDL ACT and Section 4 of Endangered Species Act.

Keywords: Kudankulam, anti-nuclear protests, PMANE, juveniles

Related articles

• Protesters plan to lay siege to #Kudankulam Nuclear project site today (kractivist.wordpress.com)
• 1 Democratic protest and 8,000 Sedition cases. Is India a free country? (kractivist.wordpress.com)
• Government, leave these kids alone- Koodankulam (kractivist.wordpress.com)
• In Kudankulam, new form of protest after jal satyagraha (ndtv.com)

With Public Health Foundation of India, falsification is the truth #RTI #mustread

 

KAPIL BAJAJ | 10/09/2012 , in Moneylife

The powerful Public Health Foundation of India, packed with corporate and government luminaries, has come up with dubious and contradictory information about its structure and formation when subjected to Right to Information scrutiny

In a significant decision dated 14^th February, the Central Information Commission  (CIC) noted “with some dismay that the highest levels of public servants in India did not accept the citizen’s enforceable right to information in PHFI, despite the government substantially funding it and exercising some control”.

 

It was referring to Public Health Foundation of India (PHFI), a powerful body that has received generous land and funding from the central government to chalk out India’s public health policy. PHFI remained outside the purview of the Right To Information (RTI) Act 2005 for six years since its inception in February 2006 despite the presence of a galaxy of government luminaries including TKA Nair (Advisor to the PM) and Dr Montek Singh Ahluwalia (Deputy Chairman, Planning Commission) on its governing board. This writer had previously written a series of articles in Moneylife (Will PHFI be any different under Narayana Murthy?, Will PHFI become transparent and accountable under Narayana Murthy?, Mr Narayana Murthy, PHFI reply to questions about the authority and functioning of the organisation, and PHFI’s reply gives hope, not confidence) about PHFI’s structure, lack of transparency and conflicts of interest when it was headed by Rajat Gupta, the former McKinsey chief who quit after being accused of insider trading (he has since been convicted for securities fraud in the US and seems likely to serve a jail term).

 

The CIC ruling in PHFI’s case declared it a public authority under Section 2(h) of the act and ordered it to start complying with the law. Interestingly, the phrase “highest levels of public servants in India” used by the CIC may well apply to Prime Minister Manmohan Singh himself, who implanted PHFI into the heart of India’s public health policy and administration and described it as a “public-private partnership” (PPP). RTI queries however reveal a scandalous and deliberate lack of transparency in its creation and clearance.

 

Fabrication given away

In response to my RTI query on 5^th July, Kalpana Swamy, the public information officer (PIO) at PHFI had sent me a document on 13^th August that is wrong and contradictory to the point of being a forgery. The 5-page ‘Annexure B’, purportedly a photocopy of an officially certified document has strangely asynchronous information on something as simple as the composition of the governing council of PHFI as on 31 March 2006. The original document was ostensibly stamped and signed by president K. Srinath Reddy on 03 August 2006. But consider this:

(a) Dr RA Mashelkar who was Secretary, DSIR (Department of Scientific and Industrial Research) and Director General of CSIR (Council of Scientific and Industrial Research) in March 2006, has been listed as ‘CSIR Bhatnagar Fellow, National Chemical Laboratory’, which he became only after his retirement in December 2006.

(b) K. Sujatha Rao has been listed as ‘Former Secretary, Ministry of Health & Family Welfare’. Ms Rao retired from her post as Secretary of the health ministry in November 2010.

(c) Rajat Gupta – prime mover in the formation of PHFI and its chairman until March 2011 – is listed as ‘Former Partner, McKinsey and Co.’. However, according to publicly available information, he was Senior Partner at McKinsey & Co. in the year 2006.

 
There is more. While the ‘Annexure-B’ lists 24 persons as part of the governing body that came into effect on 27 March 2006, the same PIO at PHFI had earlier informed Kishan Lal, a Mumbai-based RTI applicant ,that “The Governing Council with 21 members came into effect on March 27, 2006”. (I had represented Kishan Lal before the CIC Shailesh Gandhi in that case -decision No. CIC/SG/C/2011/001273/17356)

The date of 27 March 2006 is important, because it is the eve of PHFI’s “launch” by Prime Minister Manmohan Singh. ‘Annexure-B’ lists four top bureaucrats − Nirmal Ganguly, Prasanna Hota, K. Sujatha Rao and R.K. Srivastava − as members of the PHFI board on 27 March 2006, even though there is nothing in the public domain that attests to the government authorizing these four to join the board on or before that date.

There are more such mysteries about the composition of the board and the contradictory information provided to the RTI query on13th August, but we will come to those later.

 

In a separate RTI query to the Union health ministry, I asked whether it recognized PHFI as ‘autonomous body’ and, if it did, whether the union Cabinet had approved its formation as an ‘autonomous body’. On 16^th August, I received the CPIO’s response. Strangely, the ministry had forwarded my query to PHFI and sent me a reply labeled the “PHFI Response”. Needless to say it is full of misleading information.

 

The larger deception

 

The 14th February order subjecting PHFI to RTI scrutiny has exposed several uncomfortable facts, or downright deception.

For over six years the government has described the PHFI as a  “public-private partnership (PPP)”, an “autonomous body” or an “autonomous PPP” (a special coinage) – depending on its convenience – in formal statements to the Parliament and a parliamentary committee. For example:

* In mid-2006, PHFI was introduced as a PPP to the Parliamentary Standing Committee on Health and Family Welfare, which was considering a demand for grants (2006-07).

* On 24 November 2006, Panabaka Lakshmi, then minister of state for health, described PHFI as an “autonomous body” to the Rajya Sabha.

* On 31 August 2007, Lakshmi described PHFI as an “autonomous public-private partnership” while speaking in the Rajya Sabha.

 

RTI queries now reveal that PHFI was never intended to be a “PPP” or an “autonomous body” in the normal sense of those descriptors. Responding to another query by activist Kishan Lal, the health ministry not only denied the existence of any PPP initiated by the government in the health sector, but also the existence of any “PPP policy for the social sector, viz. education and health”. This matter was before the CIC too. Needless to say no contractual agreement was ever signed between the supposed ‘private partners’ and the supposed ‘public partners’ to form PHFI.

 

In other words, PHFI is not only a law unto itself, but is meant to be a durable, flexible, arrangement for powerful bureaucrats and corporate houses to use as convenient.

The claim that PHFI is an “autonomous body” seems more dubious. Responding to my RTI query on 16^th August (which was forwarded to PHFI), the health ministry clearly said that “PHFI cannot be defined as an autonomous body”. But describing it as an autonomous body allowed it to obtain a massive “grant-in-aid” of Rs 65 crore approved as a “one-time contribution” to PHFI’s corpus on 06 July 2006. The government had never envisaged PHFI as an ‘autonomous body” because that would need to meet the very elaborate conditions laid down by the General Financial Rules 2005 (GFR 2005) for forming such bodies.

 

One of those conditions is a prior Cabinet approval, which was never obtained and never intended to be obtained. In fact, the so called “grant-in-aid” of Rs 65 crore was rendered illegal from the moment it was conceived because it was provided in violation of GFR 2005. As for “autonomous PPP”, this special coinage was merely to pull wool over the public’s eyes.

 

(PART -2 – More wool over public eyes –

 

(The writer is a Delhi-based freelance journalist who has written about PHFI in the past. He has written a formal complaint about forgery, in the form of first appeal, to PHFI. He has also sent letters of complaint to at least a dozen members of PHFI’s governing body, including T K Nair, Dr M S Ahluwalia, P.K. Pradhan (Secretary Health), Amartya Sen and Mirai Chatterjee, but has received no acknowledgement from any of them.)

Dissent, thy name is sedition ?

CHENNAI, September 17, 2012 Tamil Nadu Bureau

Ongoing agitation in Kudankulam illustrates how State criminalises popular protest To what extent will the State go to criminalise an agitation, especially a prolonged popular struggle against a project seen by the government as a vital necessity, but as a hazard by the people living in its vicinity? It will charge the protesters with grave offences such as “waging war” and “sedition” regardless of whether there is any basis.

The ongoing agitation against the Kudankulam Nuclear Power Project (KKNPP) is a case in point. A dozen cases, involving a large number of unnamed people and a few named suspects, invoke these charges, among other penal provisions attracting stringent punishment. Only some of those involved have been arrested in connection with incidents arising out of the protest. And none of the principal leaders of the agitation who have been booked for sedition and waging war has been arrested so far, but the question that arises is whether there was any need to invoke provisions such as Section 124A of IPC (Sedition) and Section 121 (waging war against the Government of India) in the context of these protests.

The People’s Union of Civil Liberties, in a submission to a public hearing on Kudankulam in May had noted that while appearing to be restrained, the police had been quietly registering scores of cases since last year. If cartoonist Aseem Trivedi’s arbitrary arrest under sedition charges evoked condemnation from the Mumbai High Court, the media and civil society, lawyers and activists raise the question: who will prevent the arbitrary use of similar charges against fishermen and villagers participating in a political protest? Since the agitation against KKNPP began in August 2011, the police have filed 271 cases including 12 that speak of sedition and waging war against the government.

In the latter category of cases, five persons — anti-KKNPP struggle committee convener S.P. Udayakumar, his close associates M. Pushparayan, Fr. M.P. Jesuraj, Fr. Jayakumar and Milton — and 40 others have been cited as accused. How do the police justify their action? “As they (the protesters) threatened to destroy the KKNPP reactors if the nuclear power programme was not shelved and incited passion among the public to revolt against the State and the Central governments, we had to slap charges of sedition, waging war against the State etc, on them.

Moreover, they also circulated pamphlets containing these messages among the public and their addresses in the meetings too had this threat. We have got ample evidence to prove our case against them and will produce it in the court,” said Deputy Inspector General of Police, Tirunelveli Range, V. Varadaraju. Moreover, they also spoke in support of secession and against the Inter-governmental Agreement signed between Indian and Russian governments on establishing KKNPP, he said.

Many lawyers say sedition is too serious a charge to be slapped on people fighting for democratic rights. The provision, they point out, is a vestige of the colonial era, and has no place in a democratic society. “There is absolutely no necessity to invoke 124A in any case. It is a total abuse of the law and an attempt to muzzle and crush the dissent of people who questioned the State and its policies,” says V. Suresh, national general secretary of the People’s Union of Civil Liberties (PUCL).

According to him, such provisions were being deliberately invoked to preclude the courts from granting bail. “At the national level, the conviction rate in sedition cases is less than five per cent, but the accused and their families undergo tremendous torture, financial distress and emotional trauma during the trial that takes years to conclude,” Dr. Suresh adds. N. Chandrasekharan, Special Public Prosecutor for CBI cases in the Madras High Court, who spoke on the offence of sedition without going into the merits of existing cases, said Section 124A should be scrapped, as the provision was being invoked without any deep examination.

There were several other provisions in the IPC and other laws to take care of law and order situations. “Law enforcers need to remember that there should be intention to instigate the people to rise against the government established by law, and this ingredient is necessary to invoke the provision. Even then it should be used sparingly.” T. Lajapathi Roy, who practises in the Madurai bench of the Madras High Court, said that usually, the police pressed charges like sedition because the provision was still available in the statute books. “They think that every dissent against the government is antinational.”

(with inputs from P. Sudhakar, K.T. Sangameswaran, S. Vijay Kumar and Mohammed Imranullah S.)

Kerala- Police Block the anti nuclear march to Kundanlulam

THIRUVANANTHAPURAM, September 17, 2012 Special Correspondent, The Hindu

 

 

Writer Sarah Joseph addressing the Kudankulam Solidarity march at Parassala near Thiruvananthapuram on Sunday.

 

400-odd activists stopped at border The State police blocked around 400 marchers from Kerala, lead by prominent environment and social activists, at the Kerala-Tamil Nadu border, preventing them from proceeding to Kudankulam.

The Kudankulam Solidarity March, led by poet Sugathakumari, writer Sarah Joseph, Fr. Eugene Pereira of the Thiruvananthapuram Archdiocese and the Palayam Imam Jamaluddin Mankada, social activists K. Ajitha, B.R.P. Bhaskar, C.R. Neelakantan, Vilayodi Venugopal, and N. Subramanian, was prevented from proceeding further at Inchivila on the State border. On being stopped, the marchers staged a sit-in on the highway. Sixty-odd activists proceeded to Kudankulam even after the police action, but they were stopped at Anchugramam.

Once prevented, they returned to the Kerala capital. ‘High stakes for State’ Earlier, inaugurating the march at the hospital junction at Parassala, Sugathakumari said the agitation against the nuclear power plant could not be left to just the local people. Kerala also had high stakes in the issue which should be taken up in all seriousness as was done when a proposal to set up a nuclear power plant at Peringom in north Kerala was mooted.

Ms. Joseph pointed out that opposition to the nuclear power plant was gaining in strength with even the former Atomic Energy Commission (AEC) chairman coming out against it. That being the case, the Prime Minister’s proposal that the mental health of the agitating local villagers should be examined had lost its validity, she said.

Appeal for Contributions for Relief Camps in Assam

Over two lakh persons are still housed in relief camps in Dhubri, Chirang and Kokrajhar districts of Lower Assam, in the wake of a series of violent clashes. This is down to about half the peak of nearly five lakh people in camps, making it one of the largest humanitarian emergencies in independent India. All these internally displaced persons fled from their villages in fear of violence, and many because their homes were torched and belongings looted. There is little hope that everyone will be able to return home in the immediate future.

The camps are lodged mostly in schools and college buildings; sometimes a few classrooms and a courtyard house a few thousand people. The Assam state government assumed full responsibility for the camps, and its officials coped with the sudden explosion of the refugees. The state supplied food, some money for utensils and clothes, and ensured primary health protection.

So far the camp residents are only surviving on bare rice and dal everyday. They need at least a plastic sheet to sleep on and mosquito nets. The camps desperately require many more toilets and clean drinking water, the lack of which threatens epidemic outbreaks of cholera, gastro-enteritis and malaria.

Children suffer in many ways. There are no arrangements to study in the camps, and most students lost their books to the fires that consumed their homes. Since most camps are housed in schools and colleges, local students also cannot study.

The state and humanitarian agencies — the latter regrettably substantially absent so far — must help people return and rebuild their homes, schools and livelihoods. Children and young people must be assisted to resume their studies and normal life, without fear and dislocation.

The major duty for relief and rehabilitation lies with the central and state governments. But in a humanitarian emergency of this magnitude, it is important for people of goodwill everywhere to reach out to help and heal, to assist in relieving immediate suffering, but also as a gesture of solidarity and caring with the suffering people of both affected communities, the Bodos and Bengali Muslims.

In a very small initiative, humanist young people have decided to work together for relief and reconciliation. This initiative would be in collaboration with TISS Guwahati. Initially joint teams of young Bodo and Bengali Muslims will supply relief materials and services in the camps together. The initial focus is to support children and youth in these camps with textbooks, play things, clothes, etc, and women with clothes, sanitary napkins etc; and also utensils, treated mosquito nets etc.

We reiterate that this is a very small modest effort, and is not suggesting that this is contributing to any solution of a very complex and old problem. It is just intended as a very small gesture of collective caring. We have set a target to raise at least around 20 lakh rupees initially, to make a small tangible contribution.

We appeal to people of goodwill everywhere to contribute to this small effort. The entire money would be transferred to the joint youth group in Assam, to use entirely for purchase and distribution of relief material in both the Bodo and Bengali Muslim camps. The accounts will be managed by the Centre for Equity Studies, which will get these independently audited, and the audited accounts will be placed in the public domain.

We would also like to request you to widely circulate this appeal amongst your friends and family.

With best wishes,

Amita Joseph, Amitav Ghosh, Anu Aga, Aruna Roy, Avi Singh, Bela Bhatia, Biraj Patnaik, Dipa Sinha, Harsh Mander, Jean Drèze, Karuna Nundy, Kavita Srivastava, Mathew Cherian, Nandita Das, Nikhil Dey, Pervin Varma, Rahul Bose, Ram Punyani, Reeta Dev Barman, Ritu Priya, Sajjad Hassan, Sejal Dand, Sharmila Tagore, Vandana Prasad, Vijay Pratap and Warisha Farasat

For Aman Biradari

For further details, please contact
Jeevika Shiv (9899572770, jeevikas@gmail.com) or Ankita Aggarwal (9818603009, aggarwal.ankita87@gmail.com)

Details for donations

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(Please mention the purpose of the donation while making the contribution and e mail your PAN card number and postal address atanoop_wdk@yahoo.com)

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Bank Name: IDBI Bank Limited
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For any financial queries, please contact Sunil Snehi (9811190160, sunilsnehi@yahoo.com)

All donations exempted u/s 80G of the I. T. Act, 1961 vide Letter No. DIT(E)/2011-12/C-693/3069 Dated 17 Oct 20122 issued by the Directorate of Income Tax Act (Exemption), Delhi for the period 1 April 2011 onwards

Related articles

• Assam’s tragedy, #mustread (kractivist.wordpress.com)
• Assam, Muslims and the Insiders (kractivist.wordpress.com)
• Bangladeshis not behind Assam violence: Gogoi (ibnlive.in.com)
• Ethnic violence may continue, centre warns Assam (vancouverdesi.com)

Death Penalty- is discriminatory

ajmal-amir-kasab-photo-terrorist-going-to-be-hanged-image-india-attacked.jpg copy (Photo credit: Shekhar_Sahu)

Death is entirely discriminatory Anup Surendranath , Oped  The Hindu

A life term for Kodnani and the hangman’s noose for Kasab show the arbitrariness in the judicial administration of capital punishment

Judge Jyotsna Yagnik’s invocation of human dignity while not awarding the death penalty in the Naroda-Patiya massacre case and the Supreme Court’s expression of helplessness while confirming the death penalty of Ajmal Kasab — sentenced in the 26/11 terror attack — go to the heart of the constitutional unviability of the death penalty. We would struggle to make any meaningful distinction in the culpability we attach to these two crimes but our collective response, in terms of the punishment they must receive, has been qualitatively different. While it will be debated whether it was appropriate for a trial judge to invoke concerns of human dignity at the sentencing stage, judge Yagnik’s judgment has also inadvertently demonstrated the inherent unfairness of the death penalty. One can’t help wonder about Kasab’s fate if he had appeared before judge Yagnik rather than judge M.L. Tahiliani. And it is precisely that unpredictability and inconsistency in the judicial administration of the death penalty that is at the heart of the principled objections to the death penalty.

Different responses

There has been very little discussion on why principled arguments against the death penalty should not apply in Kasab’s case. Raju Ramachandran, the amicus in Kasab’s case, did a terrific job in attempting to get the Supreme Court to commute Kasab’s death sentence but there has been very little else.

As a nation and a society we seem to have quietly accepted the death penalty for Kasab despite all the objections that have been raised about the death penalty in the past. Kasab’s case is a significant setback for the move towards complete abolition of the death penalty in India. It was, in many ways, the perfect case for the death penalty. A profoundly hurt and grieving society, the guilt of the accused established through damning photographs and videos, wounded nationalism and the possible involvement of state actors across the border all contributed towards making Kasab’s case a strong validation of the need for the death penalty. It is as though we are acknowledging that there will be moments in our life as a nation where we will need to satisfy our need for collective revenge. A need satisfied with the gloss of the rule of law.

On what basis, then, do we not demand the death penalty for those who masterminded and led the carnage in Naroda-Patiya? Maya Kodnani as an MLA was supposed to represent and protect the interests of those in her constituency and not lead a mob of genocidaires to torture, rape and kill many helpless Muslims. Despite that, our acceptability of the punishments handed down in the Kasab and the Naroda-Patiya cases has proceeded along very different lines. There will certainly be no sustained demand for the death penalty for Maya Kodnani and Babu Bajrangi but there is widespread satisfaction at the confirmation of death penalty for Kasab. That this qualitative difference in our perception of the two crimes has found reflection in the judicial administration of the death penalty is most unfortunate with the invocation of human dignity in one case and no meaningful engagement with it in another. The issue is not whether the death penalty offends human dignity or not. As a polity, we have unfortunately decided that it does not. The primary issue is whether it is possible to develop a model of administering the death penalty that is consistent and non-arbitrary.

Judge Yagnik chose not to impose the death penalty because of her commitment to the position that the human dignity of all convicts must be respected. Judge Tahiliani either does not subscribe to that view or believes that it is inappropriate for a trial judge to take such considerations into account. Either way, it exposes why the ‘rarest of the rare’ framework cannot work in a fair and consistent manner. It ultimately leaves significant scope for judicial discretion where all sorts of factors creep in, and has ensured that comparing the death penalty in India to a lottery would not be an exaggeration.

An analysis of death penalty cases in India from 1950-2006 by Amnesty International confirms that administering the death penalty has been an arbitrary exercise. Essentially, it was observed that in many similar circumstances some convicts were awarded the death penalty and others were not. In the pursuit of consistent application of the death penalty, is the solution then to completely remove judicial discretion? Should we develop a list of very specific crimes where the death penalty is automatically awarded? Before it was found to be unconstitutional, Section 303 of the Indian Penal Code provided that an individual who committed murder while serving a life sentence would be automatically sentenced to death. Emphasising the importance of individual sentencing, five judges of the Supreme Court in Mithu v. State of Punjab found the automatic sentencing to be arbitrary and unjust.

The inability of the sentencing judges to take into consideration individual circumstances while deciding the sentence, the judges felt, would cause grave injustice to the accused. Achieving a balance between judicial discretion and individualised sentencing has proved to be an impossible task. The Supreme Court has tried to address this by developing guidelines in cases like Bachan Singh and Santosh Bariyar without much success.

A damning indictment of such attempts has been the recent appeal by 14 eminent judges to the President to commute the death sentence of 13 convicts. It is stated in the appeal that the Supreme Court itself has admitted to the wrongful administration of the death penalty in these 13 cases and that it would be a grave miscarriage of justice to not commute their sentence. It is time for the Supreme Court to recognise that it is attempting the impossible by trying to achieve a consistent application of the death penalty while maintaining the discretion of judges.

This debate between consistent application of the death penalty and individualised sentencing was at its peak in the U.S. Supreme Court in the 1970s. In Furman v. Georgia (1972), the U.S. Supreme Court raised constitutional concerns about the discriminatory and arbitrary use of the death penalty. After the judgment in Furman, many States responded with new guidelines for imposing the death penalty, including some mandatory death penalty schemes. While the attempt of the States to provide guidelines was upheld, the mandatory death penalty schemes were struck down in Gregg v. Georgia in 1976. However, the U.S. experience with ‘guided discretion’ since then has been disastrous and has been documented in great detail by the Steiker Report (2009) commissioned by the American Law Institute (ALI).

‘Tinkering with the machinery’

The ALI’s model framework for the administration of death penalty developed in 1962 provided the basis for the death penalty statutes that the U.S. Supreme Court found acceptable in Gregg. However, after the Steiker Report came to the conclusion that the death penalty continued to be administered in an arbitrary manner, the ALI deleted the death penalty provisions from its Model Penal Code in December 2009 with no proposal to introduce another framework. Justice Harry Blackmun’s judicial view on the death penalty while on the Supreme Court holds an important lesson for India’s judges in the Supreme Court.

Appointed by President Nixon, he started out upholding the constitutionality of the death penalty including mandatory death sentences in the 1970s. Until a few months before his retirement in August 1994, Justice Blackmun was a supporter of the death penalty by upholding many attempts to achieve its non-arbitrary application. But in Callins v. Collins in February 1994, Justice Blackmun concluded that efforts of the U.S. Supreme Court over two decades since Furman to ensure fair and non-arbitrary application of the death penalty had proved to be futile.

Finding the death penalty to be ‘fraught with arbitrariness, discrimination, caprice, and mistake’, Justice Blackmun revoked his support for the death penalty by declaring that he would no longer ‘tinker with the machinery of death’. The Indian Supreme Court must recognise the impossibility of what it is trying to achieve.

(Anup Surendranath is an Assistant Professor of Law at the National Law University, Delhi, and a doctoral candidate at the Faculty of Law, University of Oxford.)

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Sedition Law is against spririt of Democracy- Binayak Sen

Kractivism in Actionp- Free Binayak Sen Campaign

Binayak Sen

I was convicted of sedition (section 124 of the IPC) on December 24 (Christmas eve), 2009, and awarded life imprisonment by the additional sessions judge, Raipur. I had already spent two years in jail as an undertrial before the Supreme Court granted me bail. Following my conviction, another four months was spent in a solitary cell before the Supreme Court suspended the sentence and granted bail, remarking in the process that there did not seem to be any evidence against me.

A hearing of my appeal in the Chhattisgarh High Court is now awaited. Afew days ago, human rights organizations gathered in Delhi to welcome back from jail Seema Azaad, the general secretary of the UP PUCL. She had also been convicted of sedition and awarded life sentence on the basis of some innocuous documents found in her possession , and then was granted bail by the Allahabad High Court after having spent two-and-a-half years in jail. I was reminded of all these events when i joined the Mumbai Press Club to greet the young cartoonist, Aseem Trivedi, following his release from jail on September 12. He had spent four days in jail after being charged with sedition , allegedly because of the content of some of his cartoons .

These charges were deemed to be so patently absurd that Aseem’s incarceration aroused a storm of protest, resulting in his prompt release. Sedition is said to have occurred when any attempt is made to bring the government of the day into disaffection . Mohandas Gandhi was convicted of sedition by the British Imperial government in 1922. Arguing his own case, Gandhi told the judge that he had no affection for the British government and, moreover, he felt it was his duty to inform his fellow citizens as to why he had no affection for it.

While convicting Gandhi, the British judge felt it necessary to apologize to Gandhi for his act, to which he was bound by his duty as a judge. Such stories are part of the folklore of sedition, and create the impression that sedition is about well-known or relatively resourceful people standing up to a bumbling state power. Nothing could be further from the truth. The most important lesson i learnt in jail was that there are vast numbers of people accused of sedition and incarcerated for this reason. To take just one example, several hundred very ordinary men and women participating in the peaceful anti-nuclear agitation in Kudankulam have been charged with sedition. The state today stands guarantor, under the doctrine of eminent domain, to a country-wide process of expropriation of common property resources — land, water, forest, minerals and traditional knowledge such as knowledge of biodiversity.

Communities, whose survival is dependent on their access to common property resources, find their survival threatened by this process of expropriation. Resisting this process becomes key to the survival of these communities , and the law of sedition is one of the important resources deployed by the state in order to suppress this entirely legitimate resistance. Communities cannot be expected to acquiesce in their own extinction, but the state seems perfectly prepared to deploy its resources, both juridical and military, in order to ensure that its writ should run. The application of sedition is also contrary to the spirit of a democratic polity. After all, the process of building up political alternatives has to be based on holding — and advocating — views that are contrary to those held by the current holders of power. Sedition serves the power holder very well, because any heterodox opinion can promptly be limited by being safely put away. Human rights workers and their organizations across the country have come together to press for repeal of the sedition law and other similar laws. They are jointly engaged in a signature campaign, and a series of public meetings, to petition Parliament for the prompt repeal of these archaic and antidemocratic legal formulations, which constitute a real danger to the development of a genuinely democratic polity. The writer is an academician, pediatrician and a human rights activist