The Supreme Quash Court of India


Dianuke.org

Dr. Surendra Gadekar

Surendra Gadekar

A well-known Indian anti-nuclear activist and physicist, Gadekar lives in the remote tribal village of Vedchhi near the Kakrapar atomic power plant in the western Indian state of Gujarat. There, with his wife, a physician, he runs a Gandhian school for young activists and monitors the Indian nuclear industry, conducting surveys of power plants, uranium mines, and nuclear-testing facilities to determine the effect on the public’s health.

In 1987, he founded Anumukti, a journal devoted to establishing a non-nuclear India.

He can be contacted atanumukti@gmx.net
Old issues of Anumukti can be downloaded HERE.

Many people in India have a deep faith in the legal system. They believe that the courts provide justice. Very often, whenever some new nuclear project is in the works, the first thing one hears is, “Let us go to the courts.” Though invariably these attempts have ended in disappointments, the faith abides. Sordid tales of corruption amongst the judiciary have shaken it somewhat, but deep down most feel that in the Supreme Court at least, their concerns will get a fair hearing and once the truth is known, justice shall prevail. Satyameva Jayate.

I have somehow never shared this faith in the judicial process. Maybe it is the anarchist in me but I have always been sceptical of the wisdom of the judges. Two recent judgements of the Supreme Court in cases related to nuclear matters have only reinforced this scepticism. I have seriously begun to doubt, if the honourable judges do read and understand their own judgements. To illustrate my point let us consider the judgement in the case of G. Sundarrajan vs The Union of India & others (The Koodankulam case)

At the very beginning of the judgement itself the honourable judges write;

We are in these appeals concerned with an issue of considerable national and international importance, pertaining to the setting up of a nuclear power plant in the South-Eastern tip of India, at Kudankulam in the State of Tamil Nadu. The incidents occurred in Three Miles Island Power Plant USA, Chernobyl, Ukraine, USSR, Fukoshima, Japan, Union Carbide, Bhopal might be haunting the memory of the people living in and around Kudankulam, leading to large-scale agitation and emotional reaction to the setting up of the Nuclear Power Plant (NPP) and its commissioning.

The nature of potential adverse effect of ionizing radiation, adds to fears and unrest which might not have even thought of by Enrico Fermi a noble laureate in physics in 1938, who was responsible for the setting up of the first Nuclear reactor in a Doubles quash Court at Slagg Field, at the Chicago University, USA.”

Let me first of all clarify that my role while quoting the judgement is purely that of a cut-paste artist. I have not added or subtracted even a comma or corrected the spellings. So those amongst you, dear readers, who have any problems with the English in the text, should take up the matter directly with the authors themselves. I shall only direct your attention to a portion of the last sentence, in fact, towards the Doubles quash Court at the Slagg Field at Chicago University, USA. A minor detail first: It is the University of Chicago and not Chicago University. Second, there is no Slagg Field there. A quick glance at wikipedia confirms it to be Stagg Field. But what takes the cake, is the “Doubles quash Court”. It is of course well known that Fermi built the first atomic pile underneath the squash court at the University of Chicago and that squash is a ball game like tennis played inside a room either by two (singles) or by four(doubles) players. It was previously known as racquets. Pakistanis have been world beaters at this sport with Jehangir Khan being a real legend. But what is quash? Specially Doubles quash. A look at the dictionary comes up with three possibilities:

1. to subdue forcefully and completely; put down; suppress

2. to annul or make void (a law, decision, etc.)

3. (Law) to reject (an indictment, writ, etc.) as invalid

Alas, nothing at all on Doubles quash. Maybe the two (doubles?) learned judges through this Freudian slip are giving an early indication of what they intend to do with people’s aspirations for justice.

I can sense a certain remonstration amongst you, dear readers at all this. Why make such a song and dance about something that might actually be just a typo. So, let it pass although I do think that three mistakes in just half a sentence in the opening paragraph itself in a judgement on an issue of international importance, is something unworthy of what one expects of the Supreme Court of India.

Going further on page 9 and 10 we have,

As a sequel to that national policy, the Central Government, with the active cooperation of AEC, BARC, NPCIL, AERB etc., have already set up about twenty operating power reactors in the country with installed nuclear capacity of 4780 MWe, which have been commissioned over the last four decades from the year 1969 to 2011.

Over and above, India has now set up two PHWRs of VVER based NPPs (2 X 1000 MWe) at Kudankulam in Tamil Nadu with the co-operation of Russian Federation which is the subject matter of this litigation.”

It is entirely understandable if a novice gets confused in this alphabet soup. But since the learned judges themselves call it as “the subject matter of this litigation,” one would at least expect that they would know that PHWR and VVER refer to two entirely different reactor types and calling PHWR of VVER based NPP is just absurd. PHWR stands for Pressurized Heavy Water Reactor while VVER are the initials in Russian of what might be translated as Water-water Energised Reactor. A pressurized heavy water reactor is better known as CANDU standing for Canadian Deuterium Uranium reactor. As the name implies, it uses natural uranium as fuel and heavy water both as a moderator as well as the coolant. VVER on the other hand uses enriched uranium as fuel and ordinary natural water as both moderator and coolant. Most Indian reactors till now except for the first two at Tarapur are CANDU types. The Indian atomic energy establishment does not like the name CANDU since it refers to the Canadian origin of the design and rather prefers PHWR of Indian design.

During the entire text of the judgement, the judges place an extraordinary reliance on the Atomic Energy Regulatory Board (AERB) a toothless lapdog regulatory body. Although it would be wrong to say that every page refers to AERB, the total number of references 126 in a 247 page report (more than once in two pages), does illustrate the dependence of the judges on this fig-leaf of a regulator. Even the Government of India having realized following Fukushima the uselessness of AERB as a regulator has decided to constitute a new regulatory body but the faith of the judges in the effectiveness of AERB as a regulator remains strong. However, AERB has no previous experience of regulating a VVER reactor. More relevant is the fact that DAE and NPCIL care two hoots for what ever the AERB manuals may contain.

On pages 14 and 15, the judges are very particular to point out that it is not their province to decide on the correctness of a policy. That is strictly for the parliament to decide. They quote many other legal luminaries to bolster this argument.

It is not for Courts to determine whether a particular policy or a particular decision taken in fulfillment of a policy, is fair. Reason is obvious, it is not the province of a court to scan the wisdom or reasonableness of the policy behind the Statute.

Lord Macnaughten in Vacher & Sons v. London Society of Compositors, (1913)AC107(118)HL has stated:

Some people think the policy of the Act unwise and even dangerous to the community……But a Judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the Court, and its only duty is to expand the language of the Act in accordance with the settled rules of construction.”

12. In CCSU v. Min. (1984) 3 All ER 935 (954) HL, it was held that it is not for the Courts to determine whether a particular policy or particular decision taken in fulfillment of that policy

are fair. They are concerned only with the manner in which those decisions have been taken, if that manner is unfair, the decision will be tainted with that Lord Diplock labels as ‘procedural impropriety’.

13. This Court in M.P. Oil Extraction and Anr. v. State of M.P. and Ors., (1997 )7SCC 592 held that unless the policy framed is absolutely capricious, unreasonable and arbitrary and based on mere ipse dixit of the executive authority or is invalid in constitutional or statutory mandate, court’s interference is not called for. Reference may also be made in the judgment of this Court in M/s. Ugar Sugar Works Ltd. v. Delhi Administration & Ors., (2001) 3 SCC 635; Dhampur Sugar

(Kashipur) Ltd. v. State of Uttranchal and Ors. (2007) 8 SCC 418 and Delhi Bar Association v. Union of India and Ors., (2008) 13 SCC 628.

We are therefore firmly of the opinion that we cannot sit in judgment over the decision taken by the Government of India, NPCIL etc. for setting up of KKNPP at Kudankulam in view of the Indo-Russia agreement. Courts also cannot stand in the way of the Union of India honouring its

Inter-Governmental Agreement entered into between India and Russia.

But if the judges really believed in this how come on page 11 one finds them waxing eloquent on the merits of nuclear energy?

One of the reasons for preferring nuclear energy as an alternative source of energy is that it is a clean, safe, reliable and competitive energy source which can replace a significant part of the fossil fuels like coal, oil, gas etc. Oil and natural gas resources might exhaust themselves.”

Does the injunction against making judgements on policy matters hold only if the policy is not to the judge’s liking? What makes this pontification all the more disgusting is the fact that each of the adjectives used to describe nuclear energy; clean, safe, reliable and competitive is not applicable to nuclear energy at all. Nuclear energy is not clean, not safe, not reliable and certainly not competitive. Even with all the corruption involved in the coalgate scandal, coal is still considerably cheaper than nuclear. The judges in exhibiting their complete ignorance of the facts concerning nuclear energy just show the enormous amount of work that still needs to be done in educating the so-called educated classes.

As early as October 2010, we have had the spectacle of the Minister of State in the Prime Minister’s office, Mr Narayanswami making periodic announcements regarding early start to the Koodankulam electricity generation. That has just not happened in the last three years and the reason for the delay is not just public agitation. The fact is that there are serious deficiencies in the equipment supplied for the plant, but the judges have totally ignored this reality and chosen to rely on the worthless assurances of DAE and its lapdog regulator AERB.

In case you are still not convinced of my assertion regarding the judges being ignorant of their own judgement, there is yet another gem in the judgement. On page 192 the judges categorically declare, “Larger public interest of the community should give way to individual apprehension of violation of human rights and right to life guaranteed under Article 21. ”

Now what can be clearer than this. The judges have already by now (page 192) made absolutely clear that they consider nuclear energy to be in the larger public interest of the community. But according to the statement above, that does not matter. Thousands of individuals have expressed and continue to express their apprehensions of violations of their human rights and the right to life guaranteed under article 21 and whatever invisible public good there might be in nuclear energy, that has to give way according to the learned judges to these apprehensions.

Yet, just a page later on page 194, the judges sing an entirely different tune.

Apprehension, however, legitimate it may be, cannot override the justification of the project. Nobody on this earth can predict what would happen in future and to a larger extent we have to leave it to the destiny. But once the justification test is satisfied, the apprehension test is bound to fail. Apprehension is something we anticipate with anxiety or fear, a fearful anticipation, which may vary from person to person.

The learned judges have by this u-turn completely lost me and I suspect anybody who reads the judgement seriously. While the project has to give way to people’s apprehensions, the apprehensions cannot override the project. I suppose I shall have plenty of time to ponder on this dilemma and on the wisdom of the judges of the Supreme doubles quash Court when I don’t give way to a truck and the truck overrides me.

 

Access to Medicines in Rajasthan, after Novartis Ruling


In the backdrop of the Supreme Court judgment against Novartis trying to
seek patent on its anticancer drug Gleevec used for treatment of CML and
the granting of license to pharmaceutical company Natco by the Controller
General of Patents India to produce another anti cancer drug Sorafenib used
for treatment of liver and kidney cancers at 98% lesser cost than its
innovator company Bayer under the provisions of Compulsory Licensing, a
workshop for continuing medical education of the clinicians titled *”Making
Essential Medicines Available and Affordable to All Citizens” was jointly
organized by the SMS Medical College Jaipur, Rajasthan Medical Services
Corporation, Prayas and JSA Rajasthan on Saturday, 11th May 2013 in
Jaipur.*The key note address was delivered by Prof. Ranjit Roy
Chaudhury who
currently chairs the expert committee to formulate guidelines and SOPs for
approval of new drugs, clinical trials, banning of drugs and FDCs
constituted by the MOHFW, Govt. of India. Another speaker Mr. Anand Grover,
UN Special Rapporteur on Right to Health and intervening lawyer on behalf
of the Cancer Patients Aid Association in the famous Novartis V/s Union of
India case in the Supreme Court of India spoke about the history of patent
laws and its impact on access to essential medicines in India besides the
developments which led to the Supreme Court rejecting the appeal of
Novartis. Dr. Mira Shiva of AIDAN and IHES spoke on TRIPS, WTO and global
issues relating to access to medicines. Dr. Subhash Nepaliya, Principal SMS
Medical College, Jaipur welcomed the participants. Other speakers were Dr.
Samit Sharma, Managing Director Rajasthan Medical Services Corporation and
Dr. Narendra Gupta of Prayas & JSA Rajasthan. The workshop was attended by
more than 140 persons including Dr. Virendra Singh, Supdt, SMS Hospital
Jaipur, Dr. S.D. Sharma, Supdt. Children’s Hospital, Dr. Pradeep Sharma,
Supdt Mental Hospital attached to SMS Medical College, Jaipur and large
number of other senior faculty members including medical oncologists. There
was very intense question answer session after each presentation. Most
questions raised were relating to the quality, efficacy of generic
medicines and adherence to essential medicines list.

As reported earlier, the Govt. of Rajasthan has included Imatinib Mesylate
under the Free Medicines Scheme of Rajasthan and the innovator company
Novartis had offered to provide 30 capsules of 400 mgm of it sold by it
under the brand name Glivec in Rs. 8000 which it sells in Rs. 1,23,456/- in
the market. This offer came prior to the Supreme Court judgment. But, the
RMSC floated tenders which were opened on the last Friday. Five companies
participated in the tender and offered to provide the medicine in prices as
follows:

1. United Biotech: Rs. 654.84
2. West Coast Pharma : Rs. 883.38
3. Glenmark :Rs.  902.70
4. Naprod Life Science : Rs. 1101.60
5. Cipla : Rs. 2548.62

According to a senior oncologist SMS Medical College Jaipur there are more
than 9,000 patients undergoing treatment for chronic myeloid leukemia in
the state right now and the govt. of Rajasthan is determined to make
Imatinib Mesylate available completely free for all such patients at govt.
health facilities under the Chief Minister Free Medicine Scheme. This would
certainly come as a huge relief to all these patients in terms of the cost
of treatment which they all must be bearing out of their pockets till now.

Prayas, Centre For Health Equity,
URL : www.prayaschittor.org

 

Paid news pandemic undermines democracy


May 10, 2013

P. Sainath, The Hindu

Top civil society bodies are challenging the government’s ‘counter-affidavit’ in the Paid News case which seeks to gut the Election Commission’s powers

In a major twist to the Ashok Chavan vs. Madhav Kinhalkar legal battle (more notorious as the “Paid News” scandal), leading civil society organisations and eminent individuals have approached the Supreme Court to implead themselves into the case.

Their intervention application, moved by advocate Prashant Bhushan, minces no words on their reasons for doing so. They are disturbed by “the stranglehold of money power on our electoral politics.” And by a recent move of the Union Law Ministry which could destroy the Election Commission of India’s power to disqualify candidates filing incorrect or false accounts.

The applicants for intervention hope to defeat “the nefarious design” of the Union government which seeks to “undo all the good work done by the Election Commission of India.” And which further seeks, to “unsettle the law already settled” by the Supreme Court of India. They wish to ensure that the ECI “retains the plenitude of its power and authority to safeguard the purity and integrity of the electoral process.” Which includes holding candidates to account on poll expenses.

This action follows the Union Law Ministry filing a counter-affidavit on behalf of the Government in the Ashok Chavan case. That affidavit, first reported by The Hindu on March 20, asserts that “the power of the Election Commission to disqualify a person arises only in the event of failure to lodge an account of expenses and not for any other reason, including the correctness or otherwise of such accounts.” Simply put: the government claims the ECI has no right to disqualify a candidate even if his accounts are found to be improper or fraudulent. If accepted, this would virtually gut the powers of that Constitutional body. (However, the Court is yet to give any ruling on the matter.)

Those seeking to intervene include Common Cause, a public interest body. Its legal activism on electoral matters had a role in the Supreme Court’s ordering that political parties had to file regular returns of income or invite possible penal action. Also in the line-up is the Association for Democratic Reforms (ADR), a group at the forefront of many battles for electoral and political reforms. Vital among those, a public interest litigation (PIL) of ADR in 1999, which later saw the Supreme Court order candidates to disclose their criminal, financial and educational background prior to the polls.

That is, by filing an affidavit with the ECI. Common Cause and ADR are joined by five other civil society bodies in this application.

The line-up of distinguished individuals includes veteran journalist and editor B.G. Verghese, former Chief Election Commissioners of India (CEC) N. Gopalaswami and J.M. Lyngdoh, and former adviser to the ECI, K.J. Rao.

The immediate beneficiary of the UPA government’s attack on the ECI’s powers is the disgraced ex-chief Minister of Maharashtra, Ashok Chavan. As former Chief Election Commissioner N. Gopalaswami has pointed out: “The government has joined Mr. Chavan in challenging the Election Commission’s power to disqualify a candidate under Section 10A of the Act for his failure to submit a correct and true rendering of his election expenditure” (The Hindu, April 17, 2013). The former CEC clearly sums up the impulse for civil society action: “The case before the Supreme Court is no longer one of Dr. Kinhalkar and others vs Ashok Chavan. It concerns every individual and institution that is uneasy about and opposed to the sway of money power in elections.” — See “Doublespeak on electoral reforms, April 17, 2013, The Hinduthne.ws/gopalaswami

Mr. Chavan not only lost his post in the fallout of the Adarsh scam, but also earned notoriety in the “Paid News scandal,” a story broken by The Hindu(See: “Is the ‘Era of Ashok’ a new era for ‘news’”, thne.ws/era-of-ashok, November 29, 2009).

Destructive

The applicants for intervention in the case note there is “a growing concern that the pandemic of Paid News is eating into the vitals of our democratic polity by compromising the purity of the elections and destroying the credibility of the print/electronic media.” They cite the case of Umlesh Yadav, MLA from Uttar Pradesh, who was disqualified by the ECI for three years. Ms Yadav had failed “to account for an expenditure of Rs. 21,250 on an advertisement that had appeared in the disguise of a news item in the Dainik Jagran,” of April 17, 2007.

They note that “Umlesh Yadav pales into insignificance in comparison to the media blitzkrieg” launched in support of Ashok Chavan’s 2009 Assembly election campaign. And that the Government of India which had ostensibly taken a strong public position on Paid News and praised the ECI’s efforts to curb it, “has filed a counter affidavit which reveals its true colours.”

The Election Commission is also likely to file an affidavit opposing the government’s pro-Chavan counter-affidavit.

psainath@mtnl.net.in

 

Koodankulam:A Court in the Supreme Contempt of its People


injustice

 

The Supreme Court’s verdict on Koodankulam rests on three hugely contested premises: the judges’ belief in the necessity of the nuclear energy for India’s progress, their faith in the country’s nuclear establishment to perform its role, and the judges’ notion of the larger public interest and the apprehensions of small sections which should make way for the country’s progress. Not only have the judges given judicial sanctity to these contestable propositions, but have also completely overlooked the Koodankulam-specific brazen violations of the government’s own norms, raised by the petitioners.

injusticeThe Supreme Court’s judgement on Koodankulam would go in India’s history in line with the Narmada Dam verdict and other judicial pronouncement reflecting the inability of our post-independence democratic institutions to overcome the narrowly defined confines of ‘larger public interest’, ‘development/growth’ and ‘national conscience’.

Whose interests are larger?

While the petition filed by the Chennai-based environmentalist group Poovulagin Nanbargal presented specific concerns of safety hazards and violations of the government’s own norms in implementing the project, India’s growth and the assumed indispensability of nuclear energy for it is a recurring rationale in the Supreme Court’s final verdict. The judges have gone beyond the scope of the prayer and have extolled nuclear energy as essential for India’s growth, terming the ‘fears’ of people as misplaced. The judgement goes on to prescribe that ‘minor inconveniences’ must be tolerated in the larger interest of the nation.

DOCUMENTS:

TEXT of the Supreme Court’s Judgement on Koodankulam

Koodankulam Scam: TEXT of the Petition Filed in the Supreme Court by Adv. Prashant Bhushan

Special Leave Petition on Koodankulam filed in Supreme Court

Writ Petition on Nuclear Liability for Koodankulam Filed in the Supreme Court of India

People’s Movement is Emotional fear, Nuclear Establishment has the Expertise

The second paragraph of the judgement itself calls the people’s massive agitation in Koodankulam an “emotional reaction” to the setting up of the reactor. It almost mocks the people’s concern saying the “fears and unrest” might not have been thought of by Enrico Fermi who set up the first nuclear power plant. Since then, the judgement says, people have reacted emotionally when every new reactor is commissioned. The judgement goes on to add that the people’s concern was mooted even the constituent assembly when the Constitution was being drafted. Does this imply that nuclear energy in India should be regarded a fait accompli?

The judgement accepts the establishment’s narrative on nuclear energy in India unquestioningly.

  • The judgement extols the Atomic Energy Commission (AEC) as the repository of final authority on everything nuclear and the Atomic Energy Regulatory Board (AERB) as a competent regulator, glossing over its dependence on the AEC for funds and human resources and its being obliged to report to the AEC whose activities it is essentially mandated to regulate.
  • The verdict also reposes complete faith in the national policy on nuclear energy and the existing framework to control and regulate all radioactivity-related activities in India.
  • Under the title ‘National Policy’ (page 9) the judges narrate the evolution of India’s 20 nuclear power stations built over last four decades producing 4780 MWs today with a rare clinical coldness, without questioning the nuclear establishment’s claims and its performances in the same period, while under the same title on page 10, it mentions that renewable sources provide “small share” of our total electricity – 15%, which is actually 6 times more than the share of nuclear energy. 
  • In its overview of the global status of nuclear energy, the rapid downward trend of the industry post-Fukushima doesn’t find a mention – France produces 74.6%, US has 104 reactors, world had 439 reactors in 2007 producing 13-14% of total energy. The reality is, nuclear power produced just 11% in In 2011 and the downward trend is expected to continue due to larger number of reactors ageing and lesser numbers being built today.
  • It doesn’t even question the NPCIL’s claims of producing 20,000 MW by the year 2020 and 63,000 MW by 2030.
  • Transgressing the scope of the petition, the judges have mentioned that “one of the reasons for preferring nuclear energy as an alternative source of energy is that it is a clean, safe, reliable and competitive energy source which can replace a significance of the fossil fuel like coal, oil, gas etc.” The judges have not bothered to see that each of these adjectives have been questioned and have led to review of national policies, including in France where a national energy transformation law is underway.

As the questions raised in the petition involved technical problems plaguing the Koodankulam project, the Court consulted the government’s experts – officials from the Nuclear Power Corporation of India Limited (NPCIL) and the Atomic Energy Regulatory Board (AERB). Unfortunately, no independent institutionalised expertise on nuclear issues exists in India outside the confines of the Department of Atomic Energy.  This led to a situation in which the Judges have no option than to believe the same official experts against whose refusal to acknowledge the risks was the petition filed. While this made the entire proceeding lop-sided in the first place, there was still scope for the judges to look into the glaring violations and specific risks in Koodakulam which do not fall strictly under nuclear expert issues.

The crucial issues of supply of sub-standard equipments by ZiO-Podolsk, violation of Coastal Regulatory Zone stipulations and Environmental Impact Assessment norms, lack of clarity on the crucial issue of spent fuel storage, non-compliance with proper mock evacuation drill required by the AERB norms, much larger population in the vicinity than stipulated etc. have either been glossed over or have been legalized post-facto.

Court validating a political deal?

The judgement mentions India’s civil nuclear agreement with the US in 2005 and then with France and UK in 2008 and 2010, and explains them as the govt’s effort give effect to the “National Policy for development” for which “India has entered into various bilateral treaties and arrangements with countries which have considerable expertise and experience”. It is a well known fact that the nuclear deal came from the US side and the energy justification was a later concoction to justify it. The integrated energy policy of 2006 came one year after the Indo-US nuclear deal. In fact, it was the nuclear establishment in India which was the first one to get surprised with the news of Indo-US nuclear deal in 2005. The deal was essentially about the US manoeuvring internationals institutions norms of the  NSG and the IAEA to legitimise India’s nuclear weapons and ensure its entry into global international commerce. India’s compulsory purchase of the French, American and Russian reactors was a price it paid to achieve this. Former AEC Chairman Anil kakodkar himself has admitted in the past that importing foreign reactors, with an embarrassingly low liability cap,  had to do with accommodating these countries’ interests.

 Nuclear Energy and National Policy

After enthusiastically elaborating India’s national policy on nuclear energy, the judges say, “it is not for Courts to determine whether a particular policy or a particular decision taken in fulfilment of a policy, is fair” (page 13). Precisely. The petition before the court nowhere sought to discuss the rationale or desirability of the nuclear policy, if at all India has one. The petition raised concrete questions about safety norms and their violations. Then why the judges have went on to declare nuclear energy is green, clean and essential for India’s development? The judges quote an old case in Lodon to undermine that its “only duty is to expand the language of the Act in accordance with the settled rules of construction”, and hence “we cannot sit in judgment over the decision…for setting up of KKNPP in Kudankulam in view of the Indo-Russia agreement”. Fine, but what about ensuring that the inter-governmental agreement between India and Russia is made public and the liability provisions within it be made compliant to the law of the land?

After the aforementioned introductory part, the SC verdict has two parts – the first deals with safety and security of NPP, International COnventiions and Treaties, KKNPP Project, NSF and its management and transportation, DGR, Civil Liabilities, DMA, CSA and other related issues. Part II deals with environmental issues, CRZ, desalination plant, impact of radiation on eco-system, expert opinions, etc.

In part I, the verdict seeks to find out whether the project has adequate safety measures. In doing so, it starts with elaborating the Safety Codes of the AERB (in 12 full pages), without questioning its institutional autonomy or making mention of the CAG’s report on the AERB in which it strips down the myth of AERB’s independence and its efficacy. Details of India’s international obligations and its adherence with IAEA safety norms, based on the AERB’s submission, take several pages more.

IAEA’s 2008 report emphasizing tripling of electricity supply by 2050 is highlighted by the judges. The IAEA’s contested claim of nuclear energy being a low-carbon electricity is adopted unquestioningly.

The verdict reposes its complete faith in “the safety and security code of practices laid down by the AERB, the IAEA and its supports so as to allay the fears expressed from various quarters on the safety and security of KKNPP”

The judges mention PUCL vs Union of India and others case of 2004, where the court upheld that the AEC deals with a sensitive subject. The veil of secrecy remains intact in 2013 even if the civilian and military nuclear facilities are separated as per the Indo-US nuclear deal.

Safety Issues:

Reading the Supreme Court verdict’s sections on Koodankulam’s safety is not much different than reading AERB’s or NPCIL’s stated policies on nuclear safety. Elaborate claims of safety standards and practices, but very little about whether these guidelines sufficiently address the specific questions raised by the protests, even less on how efficient and democratic these procedures are.

In the section under part-II titled “KKNPP  Project” the judges have looked into site selection procedures and site-specific vulnerabilities of Koodankulam. The judges come out convinced that Koodankulam is totally safe for the reactor project – having absolutely no potential of earthquake, Tsunami or other geological disturbances. The evidences presented by the petitioners about the area being geologically unstable and having a history of earthquakes, volcanism and karst have gone completely unheard.

Much attention has been given to the questions of safely storing Spent Nuclear Fuel (SNF) and finding a Deep Geological Repository (DGR) for KKNPP. These are generic issues plaguing nuclear reactors everywhere and globally the nuclear industry has been struggling to find the answers for several decades. Not surprisingly, there are ready-made and extremely tentative solutions: the NPCIL has agreed to find a repository to store nuclear waste and has given details of its long-term pursuits in this direction, and it has assured the court to safely story the SNF. The AERB’s code of “Management of Radioactive Waste” has been discussed at length, to be found sufficient to address the problem. Typically, Indian nuclear establishment does not acknowledge nuclear waste as waste, because it claims it will reprocess most of it for the second phase of its 3-phase  nuclear programme, to which even the judges have shown admiration. Lost of course is the fact that reprocessing leads to more harmful and long-term wastes and India’s phased nuclear program has been too far from becoming a reality. The judges note : “the experts feel that setting up of a DGR is not much of a technological challenge…but more of a socio-political issue”. The massive  disapproval of proposed waste repositories in the US and elsewhere was based on independent expert opinion is lost again. The verdict mentions a proposed DGR in the abandoned Kolar mines of Karnataka. Of course on this and other several important issues, the NPCIL retracting publicly from its position taken in affidavits filed in the SC had its own trail over last 6 months.

The judges have noted that the Koodankulam reactor has its Spent Fuel Pool inside the primary containment, with a capacity to store fuel equivalent to 7 years of full power operation of  the reactor. That the presence of SFP close to the reactor core complicated the accident in Fukushima and is a concern even today in Japan finds no mention, of course.

Fukushima never happened !

While the judges mention the post-Fukushima safety review ordered by the Prime Minister, they have failed to take into account the critiques of the whole process and the serious risks of relying on such an internal safety review without any independent supervision or assessment. On the 17 Koodankulam-specific recommendations, the court is assured by the AERB that the NPCIL will implement them satisfactorily. In the subsequent paragraphs, the verdict rhymes the nuclear establishment’s lullaby on radiation: We are exposed to radiation in our daily lives, cosmic radiation, radiation from earth’s crust, air travel, X0ray, CT-Scan, angiography, angioplasty etc etc.

In the section titled ‘Response to People’s Resistance’, the Supreme Court gives a sanitized, government version of the dialogue with people. It makes no mention of the fact that the 15-member expert committee appointed by the government did not even bother to meet the protesting people in Idinthakarai, declined from sharing essential safety-related documents with people and completely failed to address the questions raised by the movement. While this sham of a dialogue was on, the state government kept on piling false police charges, the local congress goons kept beating the protesters, the local media kept provoking against the movement leaders and none other than the PM indulged in maligning the people’s genuine struggle. The judgement quotes the government experts group’s conclusion at length and feels satisfied. It also takes no notice that the fact that the Ex-AEC Chief’s appointment as the head of expert committee constituted by the Tamil Nadu State Government subsequently reflected a seriosu conflict of interests.

Under the heading ‘Civil Liability for Nuclear Damage’, the judges in principle agree to the importance of strict liability in nuclear sector, but fail to address the Koodankulam-specific problem of opacity on liability issue. The Russian officials have been claiming they have an exemption from liability under the Inter-Governmental Agreement (IGA)

Discussion on Disaster Management Plan (DMP), the SC verdict elaborates about the guidelines of the National Disaster Management Authority (NDMA) on radiological emergencies and has pressed for better coordination between the NDMA, the DAE, and the state administration to ensure swift evacuation and management in case of a disaster. Much emphasis has been given on the need to spread awareness among the people about nuclear accidents, however, the brazen violation and bluffing by the NPCIL on disaster management receives no attention.

Although the Supreme Court quotes AERB’s norms on population near a reactor sites and specifically mentions that no public habitation should be there within 1.5 km radius of the reactor, it has failed to take into account the Tsunami Colony in Koodankulam where more than 2500 people reside at a distance of just 700- metres from the reactor. Also, the judges have held that the emergency preparedness plan (EPP) for KKNPP is adequate for around 24000 people in the 5 km radius called ‘sterilised zone’ while the norms stipulate not more than 20000 people. The catch here is, the even the 24000 figure used by the SC is taken from 2001 census, not the 2011 census!

The judges admit the importance of the mock-drills and off-site emergency exercises, but strangely caution that ‘such mock-drills are conducted to educate the public not to scare them away, but make them understand that the project is part of the national policy, participatory in nature, and hence we cannot remain as a nuclear-isolated nation’. This would only ensure that the nuclear establishment remains insulated from public scrutiny. The judges’ faith in the affidavit filed by the district administration on off-site emergency exercises flies in the face of reality.

In the last paragraphs of part-I, the Supreme Court judges have iterated their faith in NPCIL’s promise to fulfill its corporate social responsibility (CSR) – millions of rupees allotted for building schools, hospitals, roads and so on. From Tarapur to Rawatbhata to nearby Kalpakkam, local people have seen the realities of such promises.

The second part of the verdict, focused on environmental impacts, again starts with the need to look at environmental issues in the perspective of indispensability of nuclear power in the ‘national policy’ – nuclear energy has a unique position in the emerging economics in India, it is a viable source of energy and it is necessary to increase country’s economic growth !

The judgement in this part dwells elaborately upon the arguments presented by the both sides, but only to concur with the government that Koodankulam project does not violate environmental impact assessment guidelines as the project was notified in 1988, prior to enactment of EIA requirements in 1994! The flimsy affidavits filed by the NPCIL and the MoEF have found better audience with the Supreme Court judges. The court has elaborated upon the rather general and very lenient attempt of taking of environmental impacts in Koodankulam as per a letter written by the then Prime Minister, quotes the 1989 memorandum of the MoEF, the 1989 stipulations by the AERB for clearance, and finally with the MoEF’s letter dated 6 September 2001 in which it legalised the violations in the wake of 377.30 crores already spent on the project, feels confident that the environmental impacts have been taken care of and no violation of EIA stipulations have happened. In case of Coastal Regulatory zone (CRZ) clearance, it again validates the 1994 exemption given to the Koodankulam project.

The EIA reports for the proposed 4 other reactors in Koodankulam have used the EIA studies for Koodankulam 1 and 2 as base-line, which were prepared without a public hearing. Supreme Courts doesn’t find it worthy of objection.

Modifying the initial plan to take water from two nearby dams, construction of a desalination plant was started in 2006 in Koodankuiam. The petitioners had pointed out that the desalination unit would have its own hazardous environmental impacts and will also add to the overall pollution and hence had demanded a fresh EIA clearance. The court has said that desalination units are not listed under the 1994 EIA stipulations, so absence of such an EIA in Koodankulam is not a violation. Of course, the cumulative impacts also do not need any re-assessment then!

Similarly, the Supreme Court has brushed aside significant objections on CRZ clearance and post-factto legalization by TNPCB of the increased temperature of affluent water in Koodankulam. Under the heading ‘Sustainable Development and Impact on the Eco-System’, the verdict quotes elaborately from the Rolay Commission on Environment Pollution (UK, 1971), Stockholm Conference (1972), UNGA’s World Charter for Nature (1982), Rio Summit (1992), the UN MIllenium Declaration of 2000, UN Conference on Sustainable Development (June 2012) and so on, but only to conclude that “we have already found on facts that the KKNPP has been set up and is made functional on the touchstone of sustainable development and its impact on ecology has been taken care of following all national and international environmental principles” !

Larger Public Interests

Then the judges take it upon themselves to decide whether the claims of “smaller violations” of nearby population’s right to life under Article 21 of the Constitution should take precedence over production of energy, which is “of extreme importance for the economic growth of our country..to alleviate poverty, generate employment etc.” The judgement looks into various earlier cases of objections to ‘development’ projects on environmental and right to life grounds, and concludes that a balance between “economic scientific benefits” and “minor radiological detriments” has to be found. The pre-conceived notions of ‘development’ take over the judicial rigour and objectivity and in their hurry, the judges have done a grammatical faux pas: “Larger public interest of the community should give way to individual apprehension of violation of human rights and right to life guaranteed under Article 21″! We can over look the grammatical blunder of our judges, but what about terming the massive protests by thousands of people in Koodankulam, run for over 25 years in a thoroughly peaceful manner, as ‘individual apprehension’? Who is the ‘larger community’? Do the interests of the farmers, fishermen and poor people of India do not form the ‘larger public interest’?

The judges have gone ahead to claim that apprehensions of far reaching consequences of radioactive effects has “no basis”! The say: “Nobody on the earth can predict what would happen in future and to a larger extent we have to leave it to the destiny….Apprehension is something we anticipate with anxiety or fear, a fearful anticipation, which may vary from person to person.” The Court goes by the “expert opinions” of MoEF, EAC, TNPCB, Report of IOM, Report of Engineers India Limited, NEERI’s EIA etc and concludes that all expert bodies are unanimous that in their opinion KKNPP has fully satisfied all safety norms.

Justice Dipak Misra in his prologue emphasizes the need to “march ahead with life allaying all apprehensions with a scientific mindset accepting the nature’s unpredictability to survive on the planet earth on the bedrock of the doctrine – survival of the fittest”. He again goes on to describe how elaborate the DAE’s guidelines on nuclear safety are, and concludes that ‘all possible measures have been taken to avoid any kind of calamity’. He goes on to quote extensively from the IAEA’s 1994 Convention on Nuclear Safety and the Joint Convention on the Safety of Spent FUel Management and on the Safety of Radioactive Waste Management 1997, to which India is not even a signatory, to appreciate the “world wide concern for public safety”. He again quotes in extenso from the AERB’s post-Fukushima Safety Review of KKNPP. However, an unquestioned faith in the nuclear establishment about adequacy of these recommendations and the establishment’s sincerity to implement leads to plain judicial reassurances.

Justice Misra looks into proportionality of safety vis-a-vis the necessity of nuclear energy development. While accepting the need for ensuring safety for present and future generations, he holds that ‘generation of nuclear energy is a necessity in a progressive modern state’ and ‘promotion of development and protection of the environment have to be harmonized’. Besides other cases, Justice Misra cites the Narmada case and quotes that “In a democracy, welfare of the people at large, and not merely of a small section of the society, has tobe the concern of a responsible Government.”

In the final judicial directions, the judges have asked the NPCIL to file a report before the Supreme Court before the final commissioning, certifying that each and every aspect of safety including environmental impacts, have been taken care of. For the periodical safety maintenance and reviews, safety of the spent nuclear fuel during transport, radioactive discharge to the atmosphere, compliance with the 17 post-Fukushima recommendations, and adherence to the NDMA guidelines, the court has directed the NPCIL, AERB, MoEF, TNPCB and other concerned bodies ensure strict compliance, but has essentially reposed faith in their efficacy and sincerity. The Supreme Court has ordered that a Deep Geological Repository should be set up at the earliest so that SNF can be transported from the nuclear plant to the DGR.

Withdraw Criminal Cases Against Protesters: The Supreme Court has directed to withdraw al criminal cases filed against the agitators in Koodankulam and to restore normalcy and peace.

The Supreme Court’s verdict rests on three major premises: the judges’ belief in the necessity of the nuclear energy for India’s progress, their faith in the country’s nuclear establishment to perform this role, and the judges’ notion of the larger public interest and the apprehensions of small sections which should make way for the country’s progress. All three of these are immensely contested propositions. But not only have the judges given judicial sanctity to these contestable claims, but have also completely overlooked the Koodankulam-specific brazen violations of the government’s own norms, raised by the petitioners.

In retrospect, the struggling people of India would find approaching to the Supreme Court in such matters pointless, and counter-productive, as the courts themselves are part of the system which has failed to address the widening gap between the aspirations and lives of the deprived masses and the mainstream notions of ‘larger public interest’. Prayers before the judiciary on such matters ends up legitimising the same ‘experts’ and disastrous notions of progress that the people have been fighting against.

 

Gujarat – Contours of a conspiracy


Frontline May, 2013

A protest petition filed by Zakia Jafri weaves together evidence, from contemporaneous phone and police control room records, pointing to the role of the powers that be in manipulating the Godhra incident to plan the violence against the Muslim community. By TEESTA SETALVAD

Criminal conspiracy under the law is defined as an agreement between at least two persons to commit one or more illegal acts or acts by illegal means. By its criminal intent, such a conspiracy is masterminded under a cloak of secrecy. When, and if, such a conspiracy involves a powerful, constitutionally elected head of a state, it is unlikely that the masterminding of such a series of dastardly criminal acts will be closely recorded (minuted).

The first, sharp indication that the series of acts of commission and omission by the Gujarat government under its Chief Minister in 2002, following the tragedy at Godhra, came in succinct terms from the former Chief Justice of India J.S. Verma, who was heading the National Human Rights Commission (NHRC): “The Commission would like to observe at this stage that it is the primary and inescapable responsibility of the State to protect the right to life, liberty, equality and dignity of all of those who constitute it. It is also the responsibility of the State to ensure that such rights are not violated either through overt acts, or through abetment or negligence. It is a clear and emerging principle of human rights jurisprudence that the State is responsible not only for the acts of its own agents, but also for the acts of non-State players acting within its jurisdiction. The State is, in addition, responsible for any inaction that may cause or facilitate the violation of human rights” (Interim and final reports, 2002). The NHRC was also scathing in its observations regarding the blatantly discriminatory governance displayed by the government of the day —differential rates of compensation and an obdurate refusal to visit the relief camps (1,68,000 persons were forcibly displaced because of the violence and arson) where innocent members of the minority community were housed, having been made to “pay” for the “heinous” crime at Godhra.

The report of the Concerned Citizens Tribunal (Crimes Against Humanity—Gujarat 2002), headed by Justices V.R. Krishna Iyer, P.B. Sawant and Hosbet Suresh, further detailed the gruesome conspiracy, making sharp and telling recommendations. While these reports were being documented, in parallel, chilling corroboration of the depth of the planning behind the perpetrated violence came from serving Indian Police Service (IPS) officers of the Gujarat government, former ASGP Intelligence R.B. Sreekumar, and S.P. Bhavnagar and DCP Crime Branch Rahul Sharma. They filed their affidavits before the Nanavati-Shah Commission within months of the violence. By 2004, when two of the criminal trials arising out of the state-perpetuated carnage, the Best Bakery and the Bilkees Bano cases, had been transferred out of Gujarat for trial, these officers had been examined by the Nanavati-Shah Commission, and Sharma had produced a CD of five lakh phone records that provided more evidence of complicity and planning behind the attacks.

All this material was put together in a criminal complaint by Zakia Ahsan Jafri, assisted by the Citizens for Justice and Peace (CJP), and sent to the by then Director General of Police (DGP) P.C. Pandey, an officer seriously indicted for connivance in allowing Ahmedabad to burn for weeks in 2002. He had been the happy recipient of a series of promotions by the man at the helm, the State’s Home Minister who was, and is, also the Chief Minister. Expectedly, this criminal complaint dated June 8, 2006, was treated with contempt, compelling Zakia Jafri and the CJP to petition the Gujarat High Court and later the Supreme Court of India for an order for the registration of a first information report (FIR) against the 60-plus accused. Today, arguments for and against charge-sheeting the 59 accused (two have since died, former Health and Law Minister Ashok Bhatt and Vishwa Hindu Parishad, or VHP, ideologue Prof. K.K. Shastri) have begun before a magistrate’s court in Ahmedabad.

Unique legal effort

The courts will adjudicate on a unique legal effort at pinning criminal and administrative culpability and responsibility on the political and administrative leadership and the frontrunners of non-state actors (from the Rashtriya Swayamsewak Sangh, or RSS, and the VHP) who were given the run of Gujarat’s streets. Between 2006, when the complaint was first sent to the DGP, Gujarat, to September 12, 2011, when the Supreme Court gave the complainants the right to approach a court in Ahmedabad, a detailed (if wanting) investigation was completed and, in criminal law terms, the stage was set for charge-sheeting some or all of the accused. In the interim, finding the high-profile Special Investigation Team (SIT) constituted by it wanting, the Supreme Court of India had on May 5, 2011, directed the amicus curiae in the case, Raju Ramachandran, to assess the evidence—he found enough material to prosecute accused number 1, the State’s Chief Minister, Narendra Modi, and at least three others. The SIT, in its final report filed on February 8, 2012, gave a clean chit to everyone.

Students of law and politics can learn much from a close study of this legal drama. Serious efforts at weaving together the threads of the sinister and massive conspiracy that had been alleged in the complaint were expected from such a high-profile SIT. From the start, however, the SIT deliberately set its bar low, preferring to look at only stray, discreet and superficial aspects alleged in the complaint, deliberately ignoring the import and consequences of a series of criminal and negligent acts and their impact. It ignored contemporaneous documentary evidence, the systematic use of instigative vitriol by the state and non-state accused, and rigidly refused to record statements of independent agencies like the officers of the Indian Army and Central intelligence who were privy to the consummate failures of the time.

It is no wonder then that it took the complainant, Zakia Jafri, a whole year after the final report was filed by the SIT on February 8, 2012, to get the Supreme Court to order full and complete access to all the documents and investigation reports, on February 7, 2013. The SIT did everything within in its power not just to give a clean chit to all the powerful accused but to deny the complainant her legal and moral right to access all investigation papers to facilitate and lend meaning and authority to a comprehensive protest petition.

Evidence of a cold-blooded conspiracy to manipulate the tragic Godhra incident—from the moment of the terrible news—has emerged. The petition weaves together evidence from an analysis of phone records, as also documentary contemporaneous records, and alleges that the conspiracy involved the Chief Minister, accused number 1, who was in close consultation with the then Health Minister Ashok Bhatt (accused no. 2), Urban Development Minister I.K. Jadeja (accused no. 3) and other co-accused Cabinet colleagues, and especially VHP leader Jaideep Patel (accused no. 21), to fully exploit the tragedy at Godhra for fuelling the meticulously planned massacre of Muslims all over Gujarat. The petition makes the following points:

Phone call records show that Narendra Modi was in close touch with Jaideep Patel immediately after information of the Godhra tragedy came in, even before he met Home Department officials and Ministers. Thereafter, there was a hasty and publicly conducted post-mortem at Godhra, out in the public against all law and procedure while a crowd of VHP workers was present. Narendra Modi was present while this happened. While passions were being so cynically stoked, another decision to hand over the bodies of Godhra victims to VHP strongman Jaideep Patel was taken at a mini Cabinet meeting presided over by the Chief Minister in Godhra, at which the co-accused Ministers were present. Jaideep Patel too was present at the meeting. Senior members of the administration and police were intimidated and neutralised. Other co-accused, the then Gujarat Director General of Police, K. Chakravarti (A-25), the then Police Commissioner, Ahmedabad, P.C. Pandey (A-29), the then additional Chief Secretary, Home, Ashok Narayan (A-28), and other key members of the bureaucracy and police were co-conspirators.

The SIT seems to have deliberately ignored the documentary evidence collected during the investigation. Key field reports from the State Intelligence Bureau (SIB) from all the districts were given to the SIT by January 2010, that is, a full three and a half months before the SIT submitted its first investigation report to the Supreme Court on May 12, 2010. These reports reveal a grim ground-level reality: gross provocations and bloodthirsty slogans by VHP workers from 4 p.m. onwards on the afternoon of February 27, 2002 (“Khoon ka badla khoon se lenge”, blood for blood) while Narendra Modi had still not left for Godhra. The late-night meeting at Narendra Modi’s residence effectively neutralised the police and the administration from doing its constitutional duty. The protest petition states that the credibility of the evidence relating to the critical February 27, 2002, meeting must be tested during trial and that it was not the job of the investigating agency to pre-judge the issue, acting like a court, overstepping its jurisdiction to protect and save the powerful accused. This is also what the amicus curiae, Raju Ramachandran, had opined.

Damning evidence

Evidence from the Police Control Room (PCR) records submitted by P.C. Pandey to the SIT after March 15, 2011 (that is, after the Supreme Court ordered the SIT to further investigate the complaint of Zakia Jafri dated June 8, 2006) reveals a cynical and cold-blooded mobilisation of RSS workers and VHP men at the Sola Civil Hospital from 4 a.m. onwards on February 28, 2002, in aggressive anticipation of the arrival of the dead bodies. Yet, both the SIT reports state that the funeral processions were peaceful. Repeated PCR messages, messages that the Home Department under Narendra Modi (A-1, who held the Home portfolio) and P.C. Pandey (A-21) were trying to conceal, show that both in Ahmedabad and in several locations all over Gujarat, crowds were mobilised to parade bodies with bloodthirsty sloganeering, inciting mobs to attack innocent Muslims. Repeated PCR messages desperately ask for bandobast; they speak of the staff and doctors of the hospital being under threat; of a 5,000-6,000-strong mob accompanying the bodies and, finally, one message also says that “riots have broken out”. Equally volatile mobilisations were allowed simultaneously at Khedbrahma, Vadodara, Modasa, Dahod, Anand, and so on. A cynical government under Narendra Modi and his co-accused have done their best to conceal this evidence. The SIT ignored such hard documentary evidence completely.

The PCR records also reveal that the Ahmedabad Police under P.C. Pandey and the Home Department under Narendra Modi and the then Minister of State, Home, Gordhan Zadaphiya (A-5) had enough forces to escort a VHP leader known for his inciteful slogans, Acharya Giriraj Kishore, from the airport to the Sola Civil Hospital to accompany the processionists. But they did not have enough forces to protect the hapless citizens of Naroda Patiya and Gulberg, where over 200 persons were massacred the same day. Narendra Modi allowed and openly supported the bandh during which RSS, VHP and Bajrang Dal mobs had a free run of the streets.

Judicially, the Modi government has received several reprimands, and even warnings, right from the 2004 Best Bakery case to the more recent findings of the higher courts, for its attitude towards the rebuilding of 297 masjids and durgahs wilfully destroyed in 2002. Yet, the same government which has received consistent and serious setbacks on issues relating to constitutional governance won three elections. A serious dilemma or battle between electoral and constitutional governance?

 

Letter to President of India- Protect Rights of Indigenous People or Shoot all of them


Jharkhand Human Rights Movement
C/o-Mr. Suleman Odeya, Near Don Bosci ITC Gate, Khorha Toli, Kokar, Ranchi -834001. 0651-3242752 Email: jhrmindia@gmail.com

Ref: JHRM/PI/2013/01 Date: 01/05/2013

To,
His Excellency,
Sri Pranab Mukherjee,
President of India,
Rashtrapati Bhavan,
New Delhi – 110004
India.

Sub: Requesting to protect the rights of the Scheduled Tribes (Indigenous People of India) or to shoot all of them at once rather than excluding, discriminating, exploiting, torturing and making them landless, resourceless and beggars by alienating them from the natural and livelihood resources in the name of growth and development.

Dear Sir,

1. It is extremely painful to state that I come from an Adivasi (tribal) family, who was displaced by an irrigation project without rehabilitation in 1980 and my parents were brutally murdered in 1990. However, I was managed to survive. On 30th April, 2013, you have inaugurated a power project of the Jindal Steel & Power Ltd at Sundarpahari comes under Godda district of Jharkhand. However, it seems that the tribal people were not allowed to put their concerns in front of you. The tribal people of 11 villages had gathered near Sundarpahari to raise their voices against the power project as some of them had already been displaced during the construction of ‘Sundar Dam’ and now they’ll again be displaced by the Jindal’s power project. However, these tribals were detained in Sundarpahari police station instead of hearing their plea. The question here is do they have right to freedom of expression under Article 19 of the Indian Constitution? The police have regularly been coercing the tribals who don’t want to surrender their land to the Jindal Company. According to the Santal Pargana Tenancy Act 1949, the land is non-transferable and non-saleable, whether owned by tribals or non-tribals. But how the tribals land is being bought by the Jindal Company? Is the Jindal Company allowed to violet the rule of law?

2. The Hon’ble Supreme Court of India through a writ petition (CIVIL) NO. 180 OF 2011 (Orissa Mining Corporation Vs Ministry of Environment & Forest & Others) has said that the Section 4(d) of the PESA Act 1996 says that every Gram Sabha shall be competent to safeguard and preserve the traditions, customs of the people, their cultural identity, community resources and community mode of dispute resolution. Therefore, Grama Sabha functioning under the Forest Rights Act read with Section 4(d) of PESA Act has an obligation to safeguard and preserve the traditions and customs of the STs and other forest dwellers, their cultural identity, community resources. The Court has ordered the State Government to settle the matter with the Gram Sabha. But is the case of Jindal Company, where is the role of Gram Sabha? Why it has been undermined or put aside? Why did PESA Act 1996 not enforced in this case? Is it because the head of the Jindal Steel & Power Limited is one of the powerful leaders of the Congress Party?

3. The Hon’ble Supreme Court of India has also said through a writ petition (CIVIL) NO. 180 OF 2011 (Orissa Mining Corporation Vs Ministry of Environment & Forest & Others) that the Scheduled Tribes have the Religious freedom guaranteed under Articles 25 and 26 of the Constitution. It guarantees them the right to practice and propagate not only matters of faith or belief, but all those rituals and observations which are regarded as integral part of their religion. The Court has ordered to protect and preserve the tribals’ deity. However, in last 65 years of Indian democracy, thousands and thousands of sacred groves, religions places and graveyards of tribals were either submerged in Dams or destroyed in the name of development. These are several sacred groves and religions places of the tribal would be destroyed by the power project of the Jindal Company. However, the question is do the tribals really have the freedom of religion as the Apex Court has stated? Why is Government not upholding the rule of law?

4. The tribal people have already lost more than 23 lakh acres of land in Jharkhand in two ways – i) The major part of tribals’ land were taken away from them in the name of growth and development and ii) the non-tribals who came into the 5th Scheduled Area of Jharkhand for jobs also grabbed a huge portion of the tribal land illegally after earning huge money from the development projects and mining. Though the Article 19 (d) & (e) allows the all citizens to move freely throughout the territory of India and to reside and settle in any part of the territory of India but sub-clause (5) also emphasizes that the state can impose reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses (d & e) for the protection of the interests of any Scheduled Tribe. However, nothing has been done in this regard to protect the tribal people. Consequently, the population of the non-tribals is multiplying in the Scheduled areas and the tribal population is rapidly declining.

5. The Jharkhand Government has signed more than 100 MoUs with National and multi-National companies, who are grabbing the trabals land illegally and the government is facilitating it instead of protection the land rights of tribals. The Jharkhand Government has also proposed for two industrial corridors under the Jharkhand Industrial policy 2012. According to JIP-14 (a) State Govt. will initiate necessary steps to promote / develop two industrial corridors, namely Koderma – Bahragora and Ranchi-Patratu- Ramgarh Road, where the efforts will be made to develop the corridor with 25 KM each side of 4 laning, which means, major part of the land will be handed over to the corporate houses. If that happens then where will the tribal people go? Do they have right to a dignified life?

6. On 5 January, 2011, the Apex Court of India while hearing on an appeal (the special leave petition (Cr) No. 10367 of 2010 Kailas & others Vs State of Maharashtra) said that the tribal people (Scheduled Tribes or Adivasis), the Indigenous People of India but they were slaughtered in large numbers, and the survivors and their descendants were degraded, humiliated, and all kinds of atrocities inflicted on them for centuries. They were deprived of their lands, and pushed into forests and hills where they eke out a miserable existence of poverty, illiteracy, disease, etc. And now efforts are being made by some people to deprive them even of their forest and hill land where they are living, and the forest produce on which they survive. Despite this horrible oppression on them, the tribals of India have generally (though not invariably) retained a higher level of ethics than the non-tribals in our country. They normally do not cheat, tell lies, and do other misdeeds which many non-tribals do. They are generally superior in character to the non-tribals. The Apex Court said that it is time now to undo the historical injustice to them. However, the Indian Government has done nothing to protect them. Instead, it has been facilitating in corporate land grab of the Adivasis (tribals or Indigenous People) of India.

Since, you are the custodian of the tribal people of India, therefore, I demand for following actions:
1. To order for investigation on detention of tribals and land grab by the Jindal Steel & Power Limited in Sundar Pahari and also cancel the Jindal’s power project as it is a severe threat to the existence of the tribal people especially the Primitive tribes (Paharia) of Sundar Pahari.
2. To investigate and cancel all the MoUs signed since 2000 without consent of the Gram Sabha under PESA Act 1996 and also order for withdrawal of the Industrial Police 2012 and order the state administration to return the illegally acquired land of the tribals by the corporate houses.
3. To order for a judicial inquiry in all the cases of illegal land grabbed by the non-Adivasis in the Scheduled areas.
4. To order to stop the corporate to buy land by themselves and order the Government to acquire land under the Santal Pargana Tenancy Act 1949 and Chhotanagpur Tenancy Act 1908 for development projects with the consent of the Gram Sabha under PESA Act 1996.
5. To order the Government to enforce the rule of law i.e. Constitutional provisions, 5th Schedule Area, PESA Act 1996, CNT Act 1908, SPT Act 1949, the Forest Rights Act 2006, etc.

Indeed, it’s necessary to take the above said steps to protect the constitutional, legal and traditional rights of the tribal people. However, if you are unable to protect us, I would humbly request you to gather all the tribal people at a place and shoot them so that you’ll get rid of us and could build this nation on the graveyards of the tribal as per your dream.

The architect of the Modern India Pt. Jwaharlal Nehru’s Temples of Modern India has turned into graveyards of the tribals (Indigenous People of India). Therefore, in the next time whenever and wherever you inaugurate such development project proposed on the tribals’ land, please remembers that you are building this nation on the graveyards of the Indigenous People of India.

I believe you understand my pain, anguish and sorrow. I hope to hear your positive response. I shall be highly obliged to you for the same.

Thanking you.

Yours sincerely,
Gladson Dungdung
General Secretary,
JHRM, Ranchi.

 

Why I-T returns of Pawar, Jindal and Gandhi are exempted from #RT ?


Sharad Pawar speaks at BISA launch

 

 

 

VINITA DESHMUKH , Moneylife.com| 24/04/2013 

 

Income Tax authorities have denied information about I-T returns of 22 MPs, including Sharad Pawar, Naveen JindalManeka Gandhi, Sachin Pilot, Jyotiraditya Scindia, Navjot Singh Sidhu, Beni Prasad Verma, Ajit Singh and Lalu Prasad Yadav and 20 MLAs. After suspending the hearing 27 times for over three years, the CIC has given the MPs and MLAs three weeks to file their replies
It often takes just one election victory of five years—for Members of the Parliament and Legislative Assemblies to get stinking rich, what with their wealth increasing a 1,000 times, in some cases.
According to a research carried out by the Association of Democratic Reforms (ADR), the Lok Sabha MPs (2004-2009) have had an average increase in assets to the tune of 289% or Rs2.9 crore per MP within five years.
As for the MPs from the Rajya Sabha, BJP has 14 out of 16 candidates who are crorepatis, followed by Congress with 12 crorepati candidates out of 15 candidates. “There is also the issue of conflict of interest,” says Anil Bairwal of ADR. “58% of the Rajya Sabha members are ‘crorepatis’ with flourishing professional practices, shareholding in media, infrastructure, hospitality besides paid consultancy and other engagements,” he adds.
Thus, Bairwal says, “Going by the swelling in the pouches of our MPs and MLAs in the 2009 elections, it is extremely desirable that their I-T returns are made public. The recent increase in the assets of Members of Parliament (MPs) portrays some figures which appear lopsided and doubtful. There are parliamentarians who have increased their assets more than one thousand times over while in Parliament. Furthermore, what is the foundation of this breeding money among the political parties, nobody knows.”
Bairwal has filled innumerable RTI applications in the relevant Income Tax offices of the 22 MPs and 20 MLAs, which he zeroed on, considering the increase in their assets between 2004 and 2009.  His RTIs, which were filed in 2010 were stonewalled by all the respective Public Information Officers and Appellate Authorities. In fact, his second appeal with the Central Information Commission (CIC) was suspended 27 times until it was finally heard on 16 April 2013, a good three years later. Once again, three more weeks have been given to reply.
The prominent names in the list of 22 MPs and 20 MLAs whose I-T returns were asked for under RTI are Sharad Pawar, Naveen Jindal, Maneka Gandhi, Sachin Pilot, Jyotiraditya Scindia, Navjot Singh Sidhu, Beni Prasad Verma, Ajit Singh and Lalu Prasad Yadav.

Bairwal has asked for the following information in his RTI application:
1. Whether the MPs/MLAs who fall in your jurisdiction have filed their I-T returns for all the five years (2004-2009)
2. Please provide the years for which these MPs have not filed their returns
3. Please provide details of the -IT return & assessment orders for all the years for which they have filed.
Apart from the RTI application, Bairwal also separately requested all Rajya Sabha and Lok Sabha MPs to disclose their I-T returns in larger public interest. Says Bairwal, “Some of these MPs sent us their I-T Returns and insisted that we make them public on our website whereas others uploaded them on their own website. We also came across some MPs and MLAs who have already submitted their I-T returns along with the respective chief minister’s office and the prime minister’s office.’’ In all, 28 of them including Anu Aga and Ambika Soni have revealed their I-T returns – (see box below).
As per the press release issued by ADR on 16 April 2013 “Of the 20 MPs whose I-T returns were asked for under RTI, the details of only three MPs—Mr Baju Ban Ryan MP from Tripura East constituency), Mr Shafiqur Rahman Barq (MP from Sambhal constituency of Uttar Pradesh) and Ms Usha Verma (MP from Hardoi constituency of Uttar Pradesh) were made available by the Public Information Officers (PIO). The I-T returns of others MPs were denied under various sections, like 8(1)(j), 8(1)(d), 11(1) and 11(3) of the RTI Act. TheRTIs of seven MPs were transferred but lost in transit hence no information was available.”
At the CIC hearing, representatives of 10 out of 20 MPs were present. The public information officers who denied the information stating lack of larger public interest and the representatives of MPs/ MLAs were invited for the hearing. The bench comprised Information Commissoners (IC) Mr ML Sharma, Ms Annapurna Dixit and Mr Rajiv Mathur.
The three CICs repeatedly questioned the representatives of the MPs as to how disclosing of their I-T returns was not in larger public interest. They repeatedly referred to the Supreme Court judgment which made declarations of assets and other details mandatory at thetime of contesting elections.. However, no arguments were put forth by the Public information Officers of the I-T department who had initially denied providing the information stating lack of public interest, states the press statement of ADR.
Mr Bairwal argued that there is overriding public interest in I-T returns of the MPs and that most of the requested information was already in public domain as the total income filed in the latest I-T returns of all candidates have to be provided in their affidavits along with their nomination papers to the Election Commission of India (ECI).
Mr Bairwal stated during the argument at the CIC that, “the Supreme Court has deliberated in detail on this issue while directing the ECI to collect and make public the information on assets of the contesting candidates at the time of elections through affidavits. The Supreme Court of India had specifically noted through its decision on 13 March 2003 (Writ Petition No. 490/509/515 of 2002) that asking for asset details of the parliamentarians/legislatures does not invade the privacy of the individual.”
Amongst the arguments put forth by representatives of MPs, Mr Ajith Singh’s senior advocate argued “that if the MPs are considered public servants, the I-T returns of every public servant should be requested for; lawyers of Mr Jyotiraditya Madhavrao Scindia argued that any tax payer serves larger public interest by paying tax hence their personal information cannot be made available in the public domain; the representative of Kumari Selja when asked if he would be willing to declare his/his client’s I-T returns, stated that “rule of privacy will prevail” and “I am not obliged under law to declare my I-T returns in the public domain”.
The attendees included lawyers, chartered accountants and representatives of Mr Uday Singh, Ms Maneka Gandhi, Mr Sachin Pilot, Mr Dushyant Singh, Kumari Selja, Mr Beni Prasad Verma, Mr Ajith Singh, Mr Lalu Prasad Yadav and Mr T R Baalu.
The CIC has given three weeks’ time for the representatives of the MPs to provide a copy of their written submissions after which it will give its decision.
Says Mr Bairwal, “Tax returns of Parliamentarians are voluntarily being disclosed in countries like the US and UK. Presidential tax returns in the United States are available online. Like all other citizens, US presidents also enjoy the protection of their privacy, but they chose to release their tax returns publicly. Tax returns of Barack Obama, George W Bush and others are available online. (www.Presidentsusa.net). Their tax returns are open for public scrutiny and such sort of a transparency is truly commendable. Our parliamentarians should also do likewise as this will underline the faith of the citizens in the representatives chosen by them…”

State Average asset in 2007(Rs) Average asset in 2012(Rs) Percentage
Goa 2.91 crore 7.65 crore 163%
Punjab 5.73 crore 9.17 crore 60%
Uttar Pradesh 98.05 lakh 3.10 crore 217%
Uttaranchal 83 lakh 2 crore 177%
Manipur 20 lakh 1 crore 492%
The timeline of events for MP I-T returns case
1. 22 February 2010: An RTI was filed with the respective I-T departments to retrieve I-T Returns of 20 MPs with exponential growth in assets between two elections.
2. 6 May 2010: First Appeal with I-T department for follow up on information denied under Sections 8(1)(j), 8(1)(e) and 8(1)(d) of the RTI Act
3. 20 August 2010: Second Appeal with Central Information Commission.
4. 20 April 2012: Notice for the first hearing at CIC sent to concerned parties.
5. 3 May 2012: First hearing with the CIC takes place for MP Uday Singh and MP Dushyant Singh
6. 8 November 2012: Notice for second hearing of CIC was sent to concerned parties in the case.
7. 22 November 2012: Second hearing at CIC takes place. Press Release for this CIC hearing to make MP I-T Returns public.
8. 22 November 2013: Submission No. I filed with the CIC on the day of this hearing.
9. 7 March 2013: Notice for the hearing of the full bench of CIC sent to concerned parties.
10. 4 April 2013: Submission No. II filed with the CIC based on voluntary disclosure by MPs prior to the full bench hearing.
11. 12 April 2013: Larger Bench of CIC to hear the case on making income tax returns of MPs public.
12. 16 April 2013: Hearing with the larger bench at CIC takes place.

 

Those who voluntarily put their Income Tax returns in the public domain
S No Name State Constituency Party MP/MLA ITR
1 Neeraj Shekhar UP Ballia SP MP LS ITR
2 Sadashiv Dadoba Mandlik Maharashtra Kolhapur IND MP LS ITR
3 Abhijit Mukherjee West Bengal Jangipur INC MP LS ITR
4 Mirza Mehboob Beg J&K Anantnag J&K National Conference MP LS ITR
5 Bijoy Krishna Handique Assam Jorhat INC MP LS ITR
6 Arnavaz Rohinton Aga Maharashtra NIL Nominated MP RS ITR
7 Raju Anna Shetty Maharashtra Hatkanangle Swabhimani Paksha MP LS ITR
8 Dr Ajoy Kumar Jharkhand Jamshedpur JVM MP LS ITR
9 Mandagadde Rama Jois Karnataka Karnataka BJP MP RS ITR
10 Dinesh Trivedi West Bengal Barrackpur AITC MP LS ITR
11 Vilas Baburao Muttemwar Maharashtra Nagpur INC MP LS ITR
12 Baishnab Charan Parida Orissa Orissa BJD MP RS ITR
13 Tathagata Satpathy Orissa Dhenkanal BJD MP LS ITR
14 Baju Ban Riyan Tripura Tripura East CPI(M) MP LS ITR
15 Sudip Bandyopadhyay West Bengal Kolkata Utter AITC MP LS ITR
16 Subodh Kant Sahay Jharkhand Ranchi INC MP LS ITR
17 Pratik Prakashbapu Patil Maharashtra Sangli INC MP LS ITR
18 Mahadeo Singh Khandela Rajasthan Sikar INC MP LS ITR
19 Ajay Maken Delhi New Delhi INC MP LS ITR
20 AmbikaSoni Punjab Punjab INC MP RS ITR
21 Sadanand Singh Bihar Kahalgaon INC MLA ITR
22 Pramod Kumar Bihar Motihari BJP MLA ITR
23 Subodh Roy Bihar Sultanganj JDU MLA ITR
24 Virendra Beniwal Rajasthan Lunkaransar INC MLA ITR
25 Rajkumar Sharma Rajasthan Nawalgarh INC (contested on BSP ticket) MLA ITR
26 Rajendra Pareek Rajasthan Sikar INC MLA ITR
27 Murari Lal Meena Rajasthan Dasua INC (contested on BSP ticket) MLA ITR
28 Hema Ram Choudhry Rajasthan Gudamalani INC MLA ITR

(Vinita Deshmukh is the consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet – The Inspiring Story of A Braveheart – Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)

 

Delhi Police Commissioner – The Buck Stops With You #Vaw #Rape


Prevent and Respond to End Violence against Women and Girls

We, the undersigned women’s organizations and concerned citizens, express our strong condemnation of the rising incidence of heinous crimes against women and girls in Delhi. This continues in spite of an unrelenting campaign by women’s groups and civil society over the past many months. The recent rape and sexual torture of a 5-year old girl in Delhi once again highlights that the police and administration continue to respond to crimes against women casually, in gross violation of the law.

Delhi and the National Capital Region is not a safe place for women and girls, either inside the home, in workplaces or on the streets. This is evident from the ever-increasing incidents of rape and other sexual crimes against women and girls. This is a shameful indicator of the inadequate response and abject failure of State agencies to uphold the rights and safety of  women. It is time that the government and its entire machinery, including the police, institute mechanisms and practices that will end impunity for all forms of violence against women..

We call on the Delhi Police to carry out efficient and time-bound investigations and take measures to ensure a speedy trial leading to stringent punishment in all cases of sexual violence. The police must also ensure that they take urgent necessary steps to ensure a competent, legal and sensitive responses by its personnel at all levels. We can wait no longer.

We demand that the following measures be undertaken by the police authorities on an emergency basis:

1.     Registration of a case under Sec. 166A IPC against the Investigating Officer of P.S. Gandhinagar , for not investigating the case of sexual violence in accordance with law.

2.     Action against supervising Police Officers – SHO – for failure to discharge their responsibility in supervising the investigation.

3.     Action against all concerned police personnel of P.S. Gandhinagar, for failure to comply with the directive of the Supreme Court of India to immediately register a case of a ‘missing child’ and promptly investigate the same.

4.     Investigation into the allegation of bribe to the parents to hush up the case.

5.     Standardized investigation procedures to be circulated to all police stations, with action taken against police personnel who do not implement them properly;

6.     Increased sensitization, effective investigation and accountability of the police at all levels in dealing with all crimes against women and girls.

7.     Immediate relief, legal and medical assistance, and long term rehabilitation measures including counselling to be provided to survivors of rape, through necessary referrals and without delays.

8.     Ensure that all areas that are vulnerable and unsafe be referred to the appropriate authorities to improve infrastructure to make cities safer for women and girls.

WSS | Women Against Sexual Violence and State Repression

and many women and progressive organiations

 

It was “most inappropriate” and “judicial error” to confirm death sentence in Prof. Bhullar’s case: Public Prosecutor


Free Professor Devender Pal Singh Bhullar

By 

Published: April 18, 2013. sikhsiyasat.com
    • New Delhi, India (April 18, 2013): It is a known fact that Prof. Devender Pal Singh Bhullar was sentenced to death by the trial court solely on the basis of a fractured and uncorroborated confessional statement extracted by the Delhi police in custody through torture. Prof. Bhullar’s case was heard by three judges bench of the Supreme Court of India, that confirmed the conviction in a split decision – with majority of 2:1.

Free Professor Devender Pal Singh Bhullar

Free Professor Devender Pal Singh Bhullar

Justice M. B. Shah – the presiding judge of the three judges bench had acquitted Prof. Devender Pal Singh Bhullar; while two other judges Arijit Pasyat, J. and Aggarwal, J. had confirmed the death sentence.

The 2002 decision of the Supreme Court of India, confirming death punishment in a split decision was being view as a “judicial error” – and it was expected that the President of India would take it’s notice while deciding the constitutional review petition. The President of India took eight years to decide the petition moved on behalf of Prof. Bhullar but suffered the failure to take notice of the judicial error and cleared the execution of Prof. Bhullar in 2011.

In it’s recent judgement declared on April 12, 2013 the Supreme Court of India has again upheld the death sentence awarded to Prof. Bhullar.

It seems as if whole Indian system has turned blind eye towards the “judicial error” committed in this case. But there are few dissenting voices also that have dared to oppose the ominous unity among various organs of the state favouring execution of Prof. Bhullar.

Recently, the Press Council of India’s chairman Justice Markandey Katju wrote a detailed letter to the President of India. Citing the basic flaws in the decision confirming death sentence in Prof. Bhullar’s case; J. Katju has demanded pardon for Prof. Bhullar.

As per recent media reports Senior Advocate Anoop G. Chaudhari, who was the public prosecutor against Prof. Bhullar while his case was being heard by the SCI in 2002, has admitted that the minority judgement of Justice M. B. Shah acquitting Prof. Bhulalr was good in merit.

According to a news report by Times of India:

“[t]hough two of the three judges on the Supreme Court bench upheld his arguments, senior advocate Anoop G. Chaudhari said that he found himself agreeing with the dissenting verdict delivered by the presiding judge, M. B. Shah, who had actually acquitted Bhullar”.

“Surprising as it may sound, I believe that Shah was right in not accepting my submissions in support of the trial court’s decision to convict Bhullar in a terror case, entirely on the basis of his confessional statement to the police,” Chaudhari reportedly told TOI.

“Shah refused to acquiesce to the Delhi police’s presumption that they had a lot of margin for shoddy investigation because of the involvement of terror”

– Advocate Anoop G. Chaudhari

As per news report, a former advocate general of Madhya Pradesh, Chaudhari also said that it was “most inappropriate” for the majority verdict, delivered by Justice Arijit Pasayat, to have awarded death sentence to Bhullar despite the acquittal by a member of the same bench.

In any event, this “judicial error”, he said, should have been taken by the home ministry as a “strong ground” for commuting the death penalty, when it made its recommendation to the President on Bhullar’s mercy petition in 2011.

“Did the home ministry think that the acquittal by a Supreme Court judge was meaningless?” Chaudhari asked.

But how could he be saying all these things in Bhullar’s favour, given his own role in the case? “After the judgement is delivered, I read it as a student of law and not a lawyer who appeared for one or the other party,” Chaudhari said.

“If I can’t detach myself from the case and appreciate the judgement in its correct perspective, then I won’t be honest to my profession and my conscience”, he reportedly added.

One of the major infirmities in the prosecution’s case pointed out by Shah was the failure of the police to find any corroboration for Bhullar’s confessional statement to them, even he had retracted it.

“When Shah asked me about this lacuna during the hearings, I said that I could only argue what was on record and I could not step into the shoes of the investigating agency and explain why they had not taken the trouble of finding any corroborative evidence” Chaudhari said.

 

 

CRPP Statement of on Death Sentence to Bhullar


Committe for Release of Political Prisoners

That the conviction of Davinder Pal Singh Bhullar was solely based on a confession statement attributed to him which he had denied in the court makes the decision even more regressive thus exposing even the fallacious claims of the SC that capital punishment should only be given in the ‘rarest of rare’ cases. Significantly, when Mr. Bhullar was being extradited from Germany it was assured by the Government of India that he won’t be condemned to death.
It was in 2001 that Bhullar was sentenced to death by the trial court. He has been in prison since 1995 after his extradition. Thus, Bhullar has already spent more than eighteen years in prison, which is longer than a life term. Thus, by refusing to consider the inordinate delay as a reason for the commutation of death sentence, the Supreme Court is violating the Fundamental Right guaranteed by Article 20(2), that no person shall be punished twice for the same offence.
The ten-year long delay in disposing the mercy petition by the President of India was the ground on which Bhullar had sought commutation of his death penalty as it was a blatant violation of Article 21 of the Constitution of India while at the same inflicting further pain and cruelty on him through the prolonged incarceration after the Supreme Court upheld his death sentence.
As in effect, Bhullar has already served a life term and is now on death row. What is even more alarming is that there are seventeen convicts on death row and the rejection of Bhullar’s plea is going to have an adverse effect on all these seventeen cases. The Indian ruling classes and their politics of jingoism and hate is definitely on the slippery slope heading for an orgy of judicial executions, which was triggered by the secret executions of Ajmal Kasab and Afzal Guru.
Similar to the case of Afzal Guru, the conviction of Bhullar is also on shallow grounds. Bhullar was convicted under the draconian TADA. On appeal, a three-member bench of the Supreme Court upheld the decision of the TADA Court under a split verdict of 2 to 1. The presiding judge Justice MB Shah had acquitted Bhullar of all charges under TADA. His confession, which was found to be concocted, was also rejected as it was at odds with the testimony of the prosecution witnesses. Thus, the split verdict should have been a good reason for the President to accept the mercy petition and for the Supreme Court to commute death to life. However, it was rejected in 2011 on a completely arbitrary basis eight years after it was filed. The prolonged incarceration had its toll on the health of Davinder Pal Singh Bhullar as he was undergoing treatment for mental illness. Needless to say that to hang someone who is mentally ill speaks more about the overall depredation of the ruling classes of India to the vast sections of the toiling masses.
It is with intrigue one would look into the contradicting positions taken by the Supreme Court vis-à-vis its stand on death sentence. Just a week after the Supreme Court had stayed temporarily the death sentence of 8 people another bench of the same court has rejected the plea of Davinder Pal Singh Bhullar to commute his death sentence to life. A few months before the SC had in retrospect observed that Capital Punishment can only be given in the rarest of rare cases after making it doubly sure that the evidence provided in reaching the conclusion that the said case is the rarest of the rare should be impeccable while ensuring that the law has been upheld in reaching the above said conclusion. This introspection had also brought forth the glaring facts that in ninety nine percent of the cases of award of death sentence there was a terrible miscarriage of justice. While staying the death sentence of 8 people temporarily on the first week of April 2013 the SC had observed the need to follow procedures while executing the death sentence thus partially admitting the glaring anomalies in the ‘secret’ hanging to death of Mohd. Afzal Guru.
It is well established that death penalty – being neither a deterrent nor reformatory in nature- serves no cause other than that of retributive justice. Most civilized countries (more than 140) have banned death penalty. Even though the Supreme Court of India has enunciated the jurisprudence of the “rarest of the rare”, the hard reality is that the Indian Courts have awarded death penalty at the rate of 133 per year over the last ten years. So the rarest of the rare cases are decided by the Indian courts once in every three days!
In the seventy page judgement rejecting the plea to commute the death penalty given to Davinder Pal Singh Bhullar, the Supreme Court bench quotes generously from the 35th Report of the Law Commission as it states “…Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.” [p-3] This above mentioned quote selected by the bench from the Law Commission Report explains the Court’s burden of civilizing the inhabitants in the vastness of the subcontinent through the instrument of death penalty! And this colonial mindset also explains considerably why the rhetoric of rarest of the rare has metamorphosed to be the common thing in the practice of jurisprudence in India.
As long as the lived reality of inequality endures in the Indian subcontinent through the systematic dog-eat-dog policies of various governments, such a reality may be weighed against the consequences its legal system evokes in the name of its people’s. If the Indian state continues to embrace [capital punishment] in the name of retributive or utilitarian values, then inequality remains not just a “tolerable” value for the government and the policy makers who vouches unabashedly by a system based on greed and unrequited accumulation especially in the era of Liberalisation, Privatisation and Globalisation. Inequality remains a value that is acted upon and thus preserved inextricably through the state’s persistent willingness to use the punishment of death.
We condemn strongly the act of the Indian state to enforce violence on people through the instrument of death penalty! Without a strong upsurge of the people against such draconian and barbaric instruments of violence of the State we will be condemned to be at the receiving end of a penal state that is increasingly becoming fascist. We demand that the DEATH SENTENCENCE ON DAVINDER PAL SINGH BHULLAR BE IMMEDIATELY REVOKED!
In Solidarity,
SAR Geelani
President

Amit Bhattacharyya
Secretary General

P. Koya
Vice President

MN Ravunni
Vice President

Rona Wilson
Secretary, Public Relations

 

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