Tag Archives: Constitution

How to really compensate for injustice committed

It is disheartening when the Constitution is not followed in letter and spirit, but the balm of monetary compensation will not fix the problem.

Dr Kafeel Khan Speech allahabad hc

Someone must have been telling lies about Joseph K, he knew he had done nothing wrong but one morning, he was arrested.

These opening lines of Franz Kafka’s classic novel, The Trial, published just over a century ago, in 1925, still ring true. 

Joseph K, the novel’s protagonist, is cashier at a bank. On his 30th birthday, two unidentified agents arrest him for an unspecified crime. The plot of the novel revolves around his efforts to deduce what the charges against him are, and which never become explicit. Joseph K’s feverish hopes to redeem himself of these unknown charges fail and he is executed at a small quarry outside the city—“like a dog”—two days before his 31st birthday.

Kafka, a major figure of 20th century-literature died of tuberculosis in 1924, when he was barely 40 years old. He had wanted all his manuscripts, including of the unfinished The Trial, destroyed after his death, but close friend and executor of his will, Max Brod, ignored the instruction and the world gained a strong literary indictment of an apathetic and inhuman bureaucracy and how completely it can lack respect for civil rights. 

Kafka’s novel resonates with us today for it is not difficult to spot people who have been wronged by our system. Their endless wait for justice, especially those charged with petty crimes, or those who spend the prime of their lives behind bars on concocted charges, is on open public display. 

( Read the full article here )

Are Central Universities Modern-Day Agraharams?

A caste-based society will overcome legal codes that make equality the norm unless people actively bring change.

Are Central Universities

Will we ever know the category-wise distribution of vice chancellors of the forty central universities located across the country? Thanks to the rules governing these universities, and those of the University Grants Commission, there is no such record.

This form of “castelessness” at the top is coupled with marginal representation of teachers from socially and physically marginalised sections. Be it the Scheduled Castes, Scheduled Tribes the Other Backward Classes or persons with disabilities, they are hardly ever appointed to teaching posts in central universities. A marker of the invisibilisation of these social groups is the fact that up to 96.65% of the posts of professor meant for candidates from these categories were unfilled on 1 January 2020.

This was discovered by a Delhi University teacher, who sought the information from the UGC under the Right to Information Act. More than 82% posts of professors meant for Scheduled Caste candidates, 93.98% posts meant for Scheduled Tribes and 96.65% posts meant for OBCs still remain vacant. The situation for associate professors is equally dismal, though there are fewer vacant posts of assistant professors for OBCs.

Any news can go viral these days but this explosive disclosure, which raises questions about recruitment procedures and their inherent biases was barely noticed. An explanation is that such news has lost its novelty. Perhaps everybody is aware of the metamorphosis of central universities into a new kind of Agraharam or abode of elite castes.

( Read the full article here)

God in the Classroom!

Unfolding Debate about Secularising Education

( To be published in ‘Indian Journal of Secularism)

“There is in every village a torch – the teacher; and an extinguisher – the priest.”
-Victor Hugo

Introduction
“Keep the words God, Jesus and the devil out of the classroom.”

A school teacher’s message on the first day of the school for first-grade students had caused tremendous consternation among a section of the parents.

She had a simple rationale to present her proposal. With their being a public school with children coming from different religions and beliefs joining it, she did not “[w]ant to upset a child/parent because of these words being used,” In her letter she had also advised them to talk to the children when they go to the church/temple/synagogue – whatever might be the case – or discuss the issue at home at an appropriate time and place of talking about it.” (https://www.indystar.com/story/news/education/2017/08/30/teacher-tells-first-graders-dont-talk-god-classroom/612118001/)

Well, instead of the discussion getting fixed on the slow imposition of the concept of God or closing of child’s minds it turned into a debate on students’ free speech rights. It did not take much time for the management of the school to rescind this proposal.

There is nothing new about this dilemma faced by a teacher who has welfare of students at the center of her/his concerns. Continue reading God in the Classroom!

Petition to Supreme Court Urging Verdict in Judge Loya Case

The following petition initiated by Prasenjit Bose appeals to the Supreme Court to reconsider the verdict in the case regarding Judge Loya’s death. Since the launch of the petition, over 527 persons have already signed it. A list of 40 prominent signatories is provided below. A hard copy of the petition along with the total list of signatories will be sent to the Supreme Court judges once we collect thousand plus signatures.  The petition can be signed here.

To
The Hon’ble Chief Justice

& His Companion Justices,

The Supreme Court of India

Most Respectfully Sheweth:

We the undersigned citizens of India are deeply anguished by the order passed by a three judge bench of the Supreme Court that there is no merit in the writ petitions seeking an Inquiry into the death of Justice Brijgopal Harkishan Loya on December 1, 2014 at Nagpur.

The three judge bench has concluded that the documentary material on the record indicates that the death of Judge Loya was due to natural causes and that there is no ground for reasonable suspicion about the cause or circumstances of death which would merit a further inquiry. Continue reading Petition to Supreme Court Urging Verdict in Judge Loya Case

Some Reflections on the neutrality of political institutions and the project of making Modi more palatable: Moiz Tundawala

Guest Post by MOIZ TUNDAWALA

“ … . however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.”

[Dr. Bhimrao Amdedkar]

These observations of Babasaheb Ambedkar, made on the 25th of November, 1949, one day before the Constitution was finally adopted after three years worth of labour, should suffice for anyone who dismisses Modi skeptics as excessive scare mongers. As a second year law student in 2006-07, I couldn’t quite understand why our revered constitutional law teacher Prof. M.P. Singh would keep reiterating these sentiments in class, something which I thought was so axiomatic it did not need emphases. With only a few days left for the outcome of what is being called an election for the soul of India, I now realize the wisdom underlying those constant reminders, especially in a law school converted by the culture and priorities of its students into a factory churning out smart but unreflective products for the corporate sector. I think those of us who find Modi problematic, but would still vote him in for the lure of the promised economic miracle, while at the same time consoling ourselves with the talk of sufficiently robust political institutions capable of surviving any onslaught, must listen to Ambedkar carefully. The Constitution is an artefact, a human creation, constantly needing ‘good people’ at the helm to work it out. If nothing else, resistance to Modi’s rise to power is at least resistance against the enthronement of ‘bad people’, who deep down have only harboured contempt for the Constitution as a foreign document.

Continue reading Some Reflections on the neutrality of political institutions and the project of making Modi more palatable: Moiz Tundawala

Appeal to all Voters to Protect Democracy – People’s Alliance for Democracy and Secularism

Dear fellow citizens

Sixty seven years ago, independent India adopted a democratic constitution that created a platform for equality and justice by ensuring the participation of all. Our constitution-makers were concerned to maintain a secular society free from any divisions of caste, sect and religion. 

What has become of that vision? A large part of the population lives in extreme poverty. Millions of Indians are denied their fundamental rights. There are strong linkages amongst powerful capitalists, biased officials and unscrupulous political representatives. The political system is in danger of being taken over and run for the benefit of the rich, rather than for the vast bulk of the Indian people. Communal forces of all colours thrive in our society. Their growth has been evident since the Delhi carnage of 1984. Biased behavior has appeared in the media, police, bureaucracy and executive. We are witnessing the criminalisation of the state. One example of this is the operation of private armies all over the country.

The Sixteenth Lok Sabha elections are an opportunity for us to preserve democracy. The RSS has emerged as a direct participant, discarding its ‘cultural’ mask. Continue reading Appeal to all Voters to Protect Democracy – People’s Alliance for Democracy and Secularism

A Temporary Respite from Ordinance Raj: Apurv Mishra

Guest post by APURV MISHRA

The Roman legalist Julius Paulus once said that, “One who contravenes the intention of a statute without disobeying its actual words, commits a fraud on it.” With the model code of conduct declared on Wednesday, the country was spared the possibility of a fresh round of ordinances that would have amounted to yet another fraud on the constitution by the UPA government. Believers in constitutionalism, for whom a constitutional impropriety is as disturbing as a blatantly unconstitutional act, can now breathe a temporary sigh of relief.

The phrase “fraud on the constitution” is not of my own making. It was used by the Supreme Court in a case that at once represents the best and worst of Indian polity. Between 1967 and 1981, the governor of Bihar promulgated an astonishing 256 ordinances which were kept alive for up to 14 years, including a fateful day on which 50 ordinances were passed at one go. The state assembly meanwhile, passed only 189 Acts in the same period. This was a brazen disregard for the basic structure of our constitution of which “separation of power” is an essential component- a simple and intuitive scheme where the legislature makes laws after careful deliberations and the executive branch of the government implements them.

It required two extraordinary individuals to put an end to this “complete nonsense”- Dr D C Wadhwa, who meticulously collected data on the systematic abuse of power by the Bihar government at grave personal cost and then-Chief Justice of India P N Bhagwati, who delivered an outstanding judgment (on the PIL filed by Dr Wadhwa ) which stated in no uncertain terms that the power to promulgate an ordinance is essentially an emergency power to be used to meet an extraordinary situation and “it cannot be allowed to be perverted to serve political ends.” Continue reading A Temporary Respite from Ordinance Raj: Apurv Mishra

We The People, Reclaim the Republic: Various Citizens Groups

Call given by VARIOUS CITIZENS GROUPS

As we commemorate another Republic Day, We The People proclaim that the parade of the powerful at Rajpath does not represent us. We The People, Reclaim our Republic.

As members of the LGBT community, women, workers, sex workers, students, teachers, activists, persons with disabilities, health rights activists, Dalits, indigenous people, farmers, those affected by unconstitutional military rule, we are united not as “minorities” or “others,” but as the people. We invoke the promises of the Constitution of India in our name. Our struggle will continue until all arms of the state are unwavering in their constitutional promises towards the marginalized in our society, rather than only representing the powerful.

Continue reading We The People, Reclaim the Republic: Various Citizens Groups

Press Release Against IT 2011 Rules

PRESS RELEASE

The notification of the Information Technology (Intermediaries Guidelines) Rules 2011 in April 2011 has resulted in the creation of a mechanism whereby intermediaries (such as Google, Facebook, Yahoo, etc) receive protection from legal liability in return for trading away the freedom of expression and privacy of users.

The Rules demand that intermediaries, on receiving a complaint that any content posted online is considered grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner, have to disable the content within 36 hours of receipt of complaint. The rules also require the intermediaries to provide the Government agencies information of users without any safeguards.
Continue reading Press Release Against IT 2011 Rules

A beacon of light in the heart of darkness: SC holds Salwa Judum unconstitutional

The Supreme Court has held that the use of extra-legal armed forces in Chhattisgarh is unconstitutional. Responding to a PIL filed by Nandini Sundar, Ramachandra Guha and E.A.S. Sharma, the court’s decision turns on the nature of the Salwa Judum and  the appointment of special police officers under the Chhattisgarh Police Act. But if it were a judgment that had merely ruled on the technicalities, it would have been a welcome and competent order, but would have missed its moment of constitutional greatness. This judgment attains such greatness by virtue of its deft combination of insightful legal analysis, the articulation of a moral vision of constitutionalism and development and its sharp invocation of rhetoric (in the best sense of the term) and fiction to buttress its arguments.

Fiction, William Gass reminds us is the figure of truth. Law has always produced and promoted legal fictions and the substantive interpretation of law often rests upon on a body of rhetorical figures and scenarios. The imaginative and moral character of legal fiction can often be found wanting, but there are times when the courts produce inspired moral visions that outdo even literature. Although fiction in the manner of its making, is pure philosophy, Gass says that no novelist has created a more dashing hero than the handsome absolute, or conceived more dramatic extrications- the soul’s escape from the body, for instance, or the will’s from cause. Nandini Sundar v. State of Chattisgarh is an excellent example of the ways in which the law can productively use metaphor as legal argument (‘our constitution is not a pact for national suicide’)

There will be time in the near future to examine all the nitty gritties of the judgment, but for now lets celebrate this amazing judgment. I am reproducing some extracts which may be of interest, and highlighting some of the key metaphors that the judges use in describing the state of affairs in Chhattisgarh and India more generally. (Full text available here; .pdf, 58 pages.) Continue reading A beacon of light in the heart of darkness: SC holds Salwa Judum unconstitutional

How Sedition crept into the constitution: Siddharth Narrain

Part 2 of a 3 part series by SIDDHARTH NARRAIN. First published on The Hoot

While in their Draft Constitution, the Constitutional Framers included ‘sedition’ and the term ‘public order’ as a basis on which laws could be framed limiting the fundamental right to speech (Article 13), in the final draft of the Constitution though, both ‘public order’ and sedition were eliminated from the exceptions to the right to freedom of speech and expression (Article 19 (2)).Commenting on this omission many years later, Justice Fazl Ali said: 

The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word “sedition” should be used in article 19(2) and if it was to be used in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquillity and was connected in some way or other with public disorder; and, on the other hand, there was the pronouncement of the Judicial Committee that sedition as defined in the Indian Penal Code did not necessarily imply any intention or tendency to incite disorder.

Continue reading How Sedition crept into the constitution: Siddharth Narrain

‘constitutional’ Realities: Priya Thangarajah

Guest post by PRIYA THANGARAJAH

The piece is unfinished, consciously so. The thought is unfinished and needs to be fleshed out and thus posting this, so that this important idea can be evolved collectively. It raises a range of questions and contributes to existing debates on constitutional law from a social change/human rights perspective. (consciously the words ‘constitution’ and ‘india’ are not capitalised. ) It contributes significantly to an understanding, not just of north east india but the realities of chattisgarh, jharkhand, bihar, kashmir to name a few. It helps us understand all the wars fought within the country – ‘constitutionally’ about which much is being said in the media and elsewhere by state and non-state actors.

The constitution, some argue, is an aspirational document. Baxi states that it is created to protect the rights of the impoverished. Created to protect the weaker sections of society and that’s how the Dworkinian trumping of rights works. Rights of the weaker parties always trumps that of the stronger. But whatever the aim of the constitution maybe, its sacrosanct. Sacred. Amendments can be made with great difficulty but the constitution per se cannot be done away with for a new one. Continue reading ‘constitutional’ Realities: Priya Thangarajah

Striving for Magic in the City of Words

By LAWRENCE LIANG and SIDDHARTH NARRAIN

(Published as Magic in the ‘City of Words’ in the August 2009 issue of Himal)

After agitating for many years against the existence of Section 377 of the Indian Penal Code, which criminalised homosexuality, it is understandable that the Delhi High Court’s 2 July decision in the Naz Foundation case, decriminalising homosexuality, has been welcomed and celebrated by the LGBT (lesbian, gay, bisexual and transgender) community. But to see this decision as a victory of the LGBT community alone would be to do injustice to the Delhi High Court’s remarkably progressive and well-reasoned decision, and the immense potential this judgement has for changing the course of equality jurisprudence in India. It would also display a very narrow understanding of the relationship between constitutional change and social movements striving for a more just and democratic society. Continue reading Striving for Magic in the City of Words

Jayampathy Wickramaratne on Political Solution in Sri Lanka

I am posting a longer version of an interview with Jayampathy Wickramaratne.  The February 2009 issue of Himal Southasian, a special issue on Sri Lanka, has a shorter version of this interview.  At a time when there is much concern about the ongoing humanitarian catastrophe there have also been increasing voices calling for a political solution.  On the history of displacement and humanitarian concerns with the twenty-fire year war in Sri Lanka, I recommend Rajan Hoole’s article in Himal.  This interview with Jayampathy Wickramaratne might engage those interested in past attempts at a political solution as well as the problems with the 13th Amendment (which came out of the Indo-Lanka Accord of 1987 and is currently being talked about both in Sri Lanka and India).

Ahilan Kadirgamar talked to Jayampathy Wickramaratne, who is President’s Counsel, a constitutional lawyer, a former senior advisor for the Ministry of Constitutional Affairs, and a member of the team that drafted the 2000 Constitution Bill.  Wickramartane was a member of the panel of experts to assist the All Party Representative Committee and signatory to the “Majority Report” (December 2006) that proposed extensive restructuring of the state, with extensive devolution and power sharing at the centre.   Wickramaratne is a politburo member of the Lanka Sama Samaja Party. Continue reading Jayampathy Wickramaratne on Political Solution in Sri Lanka